1803217 (Refugee)

[2018] AATA 3635

1803217 (Refugee) [2018] AATA 3635 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803217

COUNTRY OF REFERENCE:  Vietnam

MEMBER:C. Packer

DATE:15 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 15 August 2018 at 6:59pm

CATCHWORDS

Refugee – Protection Visa – Vietnam – Irregular Maritime Arrival – Full Federal Court remittal – Political opinion – Anti-authorities – No profile as a political activist – Membership of a particular social group – Successful self-employed tradesmen – Failed asylum seeker – People without ho khau in Vietnam – Departmental data breach – Decision to refuse to grant the applicant a Protection (Class XA) visa under review set aside – Substitute a decision to refuse to grant the applicant a Protection (Class XD) visa

LEGISLATION

Migration Act 1958, ss 5, 36, 45AA, 65, 91, 499

Migration Regulations 1994, r.2.08F, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

3.The applicant is a man aged [age], born in Vietnam and a citizen of Vietnam.

4.The applicant departed Vietnam on his valid Vietnam passport and travelled by air to [Country 1]. His Vietnam passport was then taken by a people smuggler. In [Country 1] he boarded a boat that reached Australia on 8 April 2013. He was considered to be an Irregular Maritime Arrival and detained, and he has been in detention since that date.

5.On 25 June 2014 the applicant applied for a visa.

6.On 11 October 2014 the applicant attended an interview with the delegate.

7.On 16 December 2014 the delegate refused the application.

8.On 24 December 2014 the applicant applied for review of the delegate’s decision.

9.On 17 April 2015 the applicant attended Hearing 1 with the first Tribunal (differently constituted) to give evidence and present arguments.

10.On 18 June 2015 the first Tribunal (AAT number 1421373) set aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa.

11.[In] February 2017 the Federal Circuit Court affirmed the first Tribunal decision.

12.[In] December 2017 the Full Federal Court of Australia set aside the orders of the Federal Circuit Court and in lieu thereof ordered the decision by the first Tribunal be set aside. The Court ordered the application for review be re-determined according to law.

13.On 22 and 28 June 2018 and 5 July 2018 the applicant attended a Tribunal hearing by video.

14.The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

15.The applicant’s narrative is centred on a fear of being identified by the Vietnamese authorities as a failed asylum seeker and as a person who has a political opinion against the Vietnamese authorities. After considering his evidence and the material before the Tribunal, I find that he does not face harm in Vietnam for those reasons or any other reason. My considerations follow.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

16.The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at hearing. In the written application, the applicant stated he was born and raised in [Village 1], [Ha Tinh] province. He is married and has a wife and [child], as well as parents [and siblings], all in Vietnam. Later, at the delegate’s interview the applicant said the brother had gone to [Country 2]. The applicant stated he had attained [a certain grade of] schooling and had had a number of manual jobs including operating a family [trade] business. He stated he got a legal Vietnam passport and departed from Ho Chi Minh City’s airport legally. At my hearing he stated his family are well although his mother is growing weak; his wife works [and] earns enough to support herself; their [child] goes to school; the father [also works].The family live in the family home. [One] brother has returned to Vietnam and now lives in another area.

17.Country information[1] shows that Vietnam is one of the world's few remaining one-party communist states. Under Article 4 of the Constitution, the Communist Party of Vietnam (CPV) remains the country’s only legal political party. Vietnam’s population is estimated to be 93.4 million with around 29 million people (about 30% of the population) living in urban areas. In 1986, following a period of economic stagnation, Vietnam undertook a series of reforms with the aim of increasing economic growth, which opened up the country to foreign investment. The World Bank describes Vietnam as ‘a development success story’. Economic reforms launched in 1986 transformed the country from one of the poorest in the world at that time to ‘low middle income status’ over a period of 25 years. Agriculture employs around 44% of all workers in Vietnam, although this share has been declining steadily and is down from around 70% in 1996. The share of employment in the industrial sector, including manufacturing, has approximately doubled since 1996, to around 21%. Vietnam introduced new minimum wage standards effective 1 January 2017 with four regional minimum wages currently ranging from VND2.58 million to VND3.76 million ($A153- 224) per month, although it is unclear how widely they have been implemented or enforced. The International Labour Organization estimates that around 82% of total employment is informal (or unprotected) labour. Vietnam does not have independent labour unions.

[1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Vietnam, 21 June 2017, [ of claims

18.The applicant claims to fear persecution in Vietnam from the Vietnamese authorities. His key claims as summarised are:

·He managed the family [trade] business in his village. Tax officials then improperly attempted to levy a tax on the business, which the family refused to pay.

·The local [authorities] who were the [suppliers] sought to extort payments from the business. The family reported the corruption to the Local People’s Committee, which took no action.

·Because of these improper demands for tax and bribes the family closed the business and sold the equipment.

·Just before he departed Vietnam a group of thugs- he believes connected with the authorities- beat him and he fears they will kill him if he returns.

·He fears harm because he had not complied with the local [commission] rules.

·He fears harm because he departed from home without authorization/consent of the authorities.

·After arriving in Australia, his personal information was made public on the Australian Department’s website. He fears the Vietnamese authorities know he has sought Australia’s protection.

·When he was at [the detention centre] some Vietnamese officials visited, and he is concerned that they were told he was detained there. Others who were returned to Vietnam had been arrested on arrival.

·Vietnamese police had attended his home since he arrived in Australia and asked that he attend the police station when he returns.

·The mother’s neighbour had been arrested after arranging for his travel to Australia. Her child had accompanied him out of Vietnam.

·His family have been told they will not be given land they are entitled to because he is in Australia.

·He fears the Vietnamese authorities will arrest and detain him as a failed asylum seeker.

·He fears the Vietnamese authorities will not renew his household registration on his return.

19.In submissions the applicant claims he has a well-founded fear of persecution in Vietnam arising from:

·Political opinion: He fears the Vietnamese authorities will harm him because of his political opinion, actual or imputed, as being against the government, and/or because he will return as a failed asylum seeker.

·Membership of a particular social group of persons who were targeted for bribes by corrupt government officials because of their perceived wealth and social status within the community.

·Membership of a particular social group of successful self-employed tradesmen conducting their own business enterprises vulnerable to corrupt demands by local government and provincial government officials.

·Membership of a particular social group of failed asylum seekers in Vietnam.

·Membership of a particular social group of people without ho khau in Vietnam.

Evidence

20.The evidence before the Tribunal includes the following material:

·the applicant’s Protection visa application form lodged on 25 June 2014 included a typed statement dated 15 June 2014 that gave reasons for seeking protection in Australia

·statements including those made in October 2013, and submissions including those made by [an organisation].

·identity documents from Vietnam, country information and news reports

·the Protection visa decision record (‘delegate’s decision’) dated 16 December 2014, which is the subject of this review

·the application for review, which has attached to it a copy of the delegate’s decision

21.The applicant appeared by video link before the Tribunal to give evidence and present arguments, on 22 and 28 June 2018 and 5 July 2018. The hearing was conducted with the assistance of accredited interpreters in the Vietnamese and English languages. The applicant stated he understood the interpreters, and during the hearing he did not tell me he had any difficulties with interpretation. The quality of the video reception was high throughout the hearings and the slight audio lag did not adversely affect proceedings.

22.At the start of the hearing session on each occasion I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. At each of the hearing sessions he was given an opportunity to talk about his claims and narrative. At the end of the hearing I asked whether he had understood everything and he said he had. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.

Assessment of claims

23.The applicant claims to be a national of Vietnam. Although he has not produced a Vietnamese passport, all the available evidence, including the applicant’s oral evidence and familiarity with Vietnam, supports his claim to be a Vietnamese national. Vietnam is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the identity claimed.

The family [trade] business

24.The applicant’s narrative is centred on the difficulties he had in operating a family [trade] [business].  His statement of 26 April 2015 described how “Our [trade] business was a small family [business]. We ran the business from our family home…” He has not provided any documentary evidence concerning his past circumstances in Vietnam and the [trade] business. The submission of 12 July 2018 summarised his narrative about the circumstances that led him to depart Vietnam and stated in part:

The applicant was a relatively well-to-do [trades person] with a shop of a main street in his village of [Village 1] in Vietnam. He was not in a poor economic position, however he was forced to leave in circumstances where he was under immense pressure to continually submit to bribes by local authorities. When he refused he was threatened and bullied. Immediately before he was forced to flee, he was beaten by a gang of men, with a police official watching and refusing to intervene, effectively leaving him for dead. This was the moment the applicant realised that not only was there no end to the lengths the authorities would go to pressure him to obey their unlawful demands, but also that he had nowhere to turn to for protection and safety.

25.At my hearing the applicant stated he was considered to be the [business] owner by the Vietnamese authorities because his father had passed the business management to him. However, his evidence about the family circumstances shows the [trade] business was a small family business managed by the father, applicant and brother. This is supported by his evidence that: the father/family started the business in 2006; the applicant only joined the already-established business from 2009 after returning to the village; the father continued to work in the business until it was closed, and the applicant’s brother also worked in the family business; the business was conducted in the parents’ house where the father was the family head and the applicant was included in the father’s household registry; and the father and brother also contributed to the business operations as shown by the brother making a payment to the local [authorities] and the father making representations about the business to the local committee. The applicant’s evidence is that he had no formal [trade] qualifications and learned [the trade] from the father, and ostensibly no demonstrated management skills as his prior work experience had been as [other occupations]. In sum, I find that the applicant was an unqualified [trade person] who worked in the father’s family [trade] business operated in the family home, and while he may have taken on some of the business management he was not held out to be the [business] owner, and he was not considered by the Vietnamese authorities and agencies to be the [business] owner.

The family [business] asked to pay tax

26.In the applicant’s narrative, tax officials from the government tax office attempted to levy a tax on the family [trade] business which the family rejected due to their understanding that family home businesses without employees were not liable to pay tax. At Hearing 1 he stated that he had spoken to the tax officials twice and the father one time about the tax the tax officials wanted to levy. However, while I accept that tax officials sought to levy a tax on the family business, I am not satisfied the tax official’s demands were unlawful as the applicant claims.

27.In a statement made in October 2013 he stated ‘When we asked they said our house was close to the road, that we had to pay so others would follow us to pay’. But at hearing the applicant said that although the business was operated from the family home, they had also constructed a prominent extension/shop-front facing the main road in which to sell their products. The applicant’s evidence shows that the family [trade] business attracted the tax office’s attention after the business had ostensibly grown beyond the family home and become prominent on the main road and was ostensibly thriving. The shop-front on the main road was a significant addition to the business that ostensibly elevated the business into a business that had tax liabilities. This is also supported by his evidence that other thriving businesses had also been asked to pay tax albeit he said that some with party connections were not asked. His evidence that the tax officials brought a tax book and showed the different types and levels of tax that might apply to the business ostensibly shows the tax office was not improvising the tax they sought to levy.

28.In sum, I have considered but do not accept the representative’s submission that the law had been applied discriminately on the applicant based on their perceived wealth and social status within the community. Nor do I accept that the applicant was a member of a particular social group of persons who were targeted for bribes by corrupt government officials because of their perceived wealth and social status within the community. I find that the family had become involved in a tax dispute with the tax authorities, but I do not accept the business operated by the family including the applicant had been improperly targeted to pay tax or that the demands of the tax officials had been unlawful or showed corruption.

The extortion demands

29.In the applicant’s narrative, the local [authorities] sought to extort payments from the business, and although the family reported the corruption to the local committee no action was taken. His statement of 26 April 2015 stated “We did, however, pay the [authorities] protection money on numerous occasions when they would pass by our home at random…” At hearing the applicant’s evidence is that he and the brother each made one payment to the [authority] people but thereafter they refused to pay. I give the benefit of the doubt to the applicant that the local [authorities] had sought bribes in order to continue supplying [supplies] to the business and that this amounted to corruption. However, I find the family had been targeted for bribes because they directly received [supplies] and not because the applicant was a member of a particular social group of persons who were targeted for bribes by corrupt government officials because of their perceived wealth and social status within the community.

30.Also, at the hearing the applicant agreed when I pointed out that based on his evidence he had not broken any local [commission] rules. As discussed at hearing, I therefore do not accept that he faces harm in Vietnam because he had not complied with local [commission] rules, now and in the reasonably foreseeable future.

31.I accept the applicant and the father complained to local authorities about these bribes. However, based on the applicant’s evidence, the family took no further action when the local authorities failed to act. The applicant did not complain to any other government agency and he did not publicly campaign about the payments being demanded of the business, and I do not accept that he gained a profile as being an agitator against a Vietnamese authority.

The consequences of the refusal to pay tax and bribes

32.In the applicant’s narrative, the tax officials threatened that if the business did not pay tax then they would close the business. He said that on a couple of occasions they brought police, as well as local committee people who threatened that repercussions would include them not giving certificates in the future. One time the family were pushed around but nothing had ever been taken or confiscated. Also, the local [authorities] threatened that if further payments were not given then they would seize machinery or take back the [supplies], and the applicant told the local [authorities] if they continued to push like this the business would have to close.

33.I accept that the tax officials pressured the applicant and family to pay tax to be levied on the family [trade] business. However, I do not accept that their refusal to pay tax had any further repercussions, as the family in fact then chose to close the business and sell the [equipment] and the applicant and perhaps the brother used the proceeds for travel. That the family chose to close the business rather than pay tax pre-empted any further action by the local authorities and by the tax officials who had threatened to close the business if tax was not paid. Once the business had ceased there was no business to tax. At hearing the applicant said that he had been worried the authorities would implicate him as having opposed the government, but as I pointed out to him that had not happened.

34.Strangely, the applicant stated he did not know if the tax officials had ever returned to ask the family for tax and he said he had never asked his family, and he added that anyway if the tax officials had ever gone by to have a look in they would have seen that the business was gone. He states that in 2013 police once told his mother that he should report to the police station for paperwork when he returned home, but the police had not said the applicant was in trouble. But the applicant’s evidence is that he had never been accused of being anti-government or anti-Party or charged with any offence because of his and the family’s refusals to pay tax.

35.The father had also been actively involved in the family [trade] business operated from the family home. However, the applicant does not claim despite ample opportunity that after the business was closed the father had been hassled by the tax officials or [authority] people or accused of being anti-government or anti-party or charged with any offence. Five years have now passed since the family decided to close the business and the father has lived in the home area and continued the family’s principal work in farming on leased land without difficulties. The father has not been hindered or prevented from leasing land on which to farm.

36.The brother had also been actively involved in the family [trade] business operated from the family home. The applicant’s evidence is that the brother went to [Country 2], but at my hearing he said the brother had returned to Vietnam and now lives in another area. He does not claim despite ample opportunity that after the business was closed the brother had been accused of being anti-government or anti-party or charged with any offence, or that the brother had any difficulties departing Vietnam or had any difficulties with the authorities on arriving back in Vietnam or after return.

37.Similarly, I accept that the local [authorities] pressured the family including the applicant to make payments/bribes because the family were being supplied with [supplies], but I do not accept that the family’s refusal had any further repercussions, as the family in fact then chose to close the business and so had no further requirement for [supplies].

38.In sum, I do not accept the problems faced by the family business and by the applicant in 2012-2013 caused him or any family member any harm beyond the family choosing to close the business. I do not accept the applicant or any other family member had been accused of being or perceived to be anti-government or anti-Party or a political activist or dissenter at the time.

39.After the [trade] business was closed, I do not accept the business difficulties as discussed and the family/applicant’s response to those difficulties and the sale of the business, caused any further difficulties to the applicant or any family member. I do not accept the business difficulties and the family/applicant’s response to those difficulties and the sale of the business, all now distant in time, will cause the applicant any difficulties or lead to him being harmed in his home area by any Vietnamese authorities or any other agents now and in the reasonably foreseeable future.

40.The applicant’s evidence is that the family business’s [equipment] was sold and the father now farms and the brother lives elsewhere in Vietnam. At hearing when I asked the applicant what he would do if he returned to Vietnam he claimed he would have difficulties getting employment including work similar to his past [jobs], and he did not say despite ample opportunity that he had any interest in again doing [trade] or establishing a business. In sum I find that there is no real chance or real risk he will again be asked to pay bribes to the local [authorities] in the reasonably foreseeable future.

The adverse attention of a group of bullies

41.In the applicant’s narrative, not long before he departed Vietnam, he was twice assaulted by a group of men. He speculates they may have been paid by the authorities to pressure him over the business, and the representatives submit that the DFAT report Vietnam supports his speculation:

5.4 …Credible sources report that local police also use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and others, including religious worshippers, who are perceived as undesirable or a threat to public security.

42.However, his evidence has consistently been that those people had at first been hassling a young cousin ostensibly over a school matter and had not initially been concerned with him. In his statement dated 1 October 2013 he said:

I have a cousin who studies at high school and for some reasons school friends didn’t understand him. On that day, when I was working I heard noises in front of my house, I went out and saw that my cousin was beaten. I asked them to spare my cousin but the people beat me as well.

43.The statement went on to say that: the next day the people returned and sat outside the house; later he went to play [sport] and the group rushed in and beat him; two of them held knives; the police chief was there ‘but he didn’t dare do anything’; he escaped; a friend said they were a group of bullies/underworld people who were often rented by debt collectors and to hide as they would kill him. At hearing the applicant repeated this story and said the group threatened to kill him after he intervened when they were accosting his young cousin. He said they were drug addicts who had bullied the cousin and taken the cousin’s phone. He had advised the cousin to report this to the police but he considered the police had taken no action because the group was still around the next day. His evidence is that the mother had later seen the group about the house but this was a few months after he had departed Vietnam and they had not been seen since.

44.As discussed at hearing, the applicant’s account of the occurrences involving this group show they had been involved in bullying at the time. They had initially assaulted the young cousin and stole the cousin’s mobile, and then turned against the applicant when he intervened. The applicant gained their adverse attention and this led to an assault the next day, where the police chief had seen ‘but he didn’t dare do anything’. But based on the applicant’s evidence I am not satisfied that the people were any more than a group whose adverse attention he attracted when he intervened in their bullying of the cousin. At my hearing he stated he did not know why they assaulted him, and he does not know if they had tried to make trouble because they had been directed to do so. They did not refer to the business or make demands or seek to extort money from him, and did not hassle any other family members at that time. The applicant’s evidence is that after he departed Vietnam, in the following few months the mother had seen the group around but they had not hassled the family, and this does not support his claim that the group had been paid by the authorities to hassle the family over their business.

45.In sum, I do not accept that the group had been paid by the authorities to pressure him and the family over the business. As well, five years has now passed and this occurrence is distant in time. I do not accept there is a real chance that any group members now have an adverse interest in the applicant and I do not accept there is a real chance he will be harmed by any of them now and in the reasonably foreseeable future.

The family not allocated land   

46.The applicant claims to have suffered discrimination in Vietnam because his family had not been granted land for farming. However, he does not claim that his family/father has been prevented from farming as his evidence is also that the father has leased land and farmed it for several years. In the applicant’s statement of October 2013 he stated:

When I finished Year [grade] study, we moved to [Village 1]. Since the moving until now, my family has not been given any rights. It has been twelve years since the moving my family have not been granted any land for farming. My family submitted petitions without any response; so we had to put up with that.  

47.At Hearing 1 the applicant added that: in Vietnam if a family resides in one place for five years the government gives them land; his family had lived in the same place for over ten years but had not been allocated land; and the local authorities had since told his parents that as he had fled from Vietnam, the family are not entitled to land. At my hearing the applicant gave changeable evidence about the land issue. He at first said that families in Vietnam are entitled to get land from the government after ten years residence, but when I pointed out he had previously said the right to land accrued after five years, he responded that between five and ten years the land should have been given, and then added the right to land accrued after five years. At my hearing when I queried whether the parents had gone to the authorities and asked why the land had not been allocated, the applicant responded that the parents were told by the authorities to just wait and he agreed that he did not know why the land had not been allocated to the family.

48.In light of his changeable evidence about the land entitlement and his evidence at my hearing that he does not know why the land had not been allocated to the family, I do not accept that the family have been denied a land grant unfairly or because of any actions by the applicant or because of his departing Vietnam. I do not accept there is a real chance that any unmet expectations of the family about being granted land to farm would lead to the applicant facing harm in Vietnam now and in the reasonably foreseeable future.

His departure on his legal passport

49.The applicant claims that he fears the Vietnamese authorities will harm him because he fled his home without authorization/consent and he ‘escaped without permission’[2] and he believes his departure will be viewed as illegal and he will be considered to be anti-government. However, his evidence is also that he departed Vietnam on his legal Vietnam passport. At my hearing he stated that his mother got her relations to help get the passport although he stated he did not know how they helped: he did not claim despite ample opportunity that bribery had been involved. As discussed at hearing, country information shows Vietnamese nationals are able to apply for passports and usually provide evidence such as their household registration book and one other form of identification (usually their identity card or birth certificate), an application form and two recent passport photos: the Ministry of Public Security then reviews the application in consultation with the province of residence of the applicant who verifies their identity. The DFAT report Vietnam states:

Passports

5.29 Passports are obtained by application to the Immigration Control Department of the Ministry of Public Security (MPS), at either the Central level (Hanoi) or the Central-City level (Hanoi, Danang, Ho Chi Minh City). Applicants outside these three cities can apply by post. Applicants usually provide their household registration book and one other form of identification (usually their identity card or birth certificate), an application form and two recent passport photos. MPS reviews the application in consultation with the province of residence of the applicant who verifies their identity. The process officially takes five working days at the Central level and eight working days at the Central-City level. Passports are valid for ten years. They do not include information about religion.

[2] Statement of 26 April 2015, para 31

50.As I pointed out, this country information shows his passport had been issued after the Ministry of Public Security and the relevant authorities of his province had reviewed his application for the passport. The issuance of his legal passport does not support his claims that he left home without authorization/consent or that his departure will be viewed as illegal or that as a result he will be considered to be anti-government.

51.The applicant stated the people who helped him get a boat from [Country 1] also purchased his airline ticket to fly from Vietnam to [Country 1]. Nonetheless, his evidence is that the airline ticket was in his name and he flew from Hanoi to Ho Chi Minh City and departed from Ho Chi Minh City’s international airport legally in the usual way and without difficulties. As discussed at hearing, Vietnamese nationals are permitted to travel in and out of Vietnam and this is monitored by authorities at the international airport. The DFAT report Vietnam states in part:

5.18 The Vietnamese Constitution provides for citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’ (Article 23). In practice, the Government imposes limits on the movement of some individuals, particularly foreign travel by high profile political activists. Authorities often confiscate passports or deny issuance of passports for people the Government deems a threat to national interests. The Department of Immigration, part of the Ministry of Public security, is responsible for the issuance of passports and visas, as well as monitoring citizens migration to and from Vietnam.

5.19 The General Department of Customs, under the Ministry of Finance (MoF), is responsible for controlling the entry and exit of citizens and foreigners at airports. Airport control generally operates smoothly in all major cities and towns, however, corruption reportedly remains a problem. In 2015, a corruption hotline was established in Ho Chi Minh City in an attempt to reduce bribery at customs control points.

5.20 Internal and external relocation continues today due to decreasing sources of livelihood, as a result of environmental factors such as land degradation and non-natural disasters such as the mass fish deaths in April 2016 caused by a toxic waste spill at Taiwanese-owned steel company, Formosa Ha Tinh Steel Corp, in Ha Tinh province.

52.As discussed at hearing, his legal departure on his passport in the usual way without difficulties does not show that he had been of adverse interest to the Vietnamese authorities. Indeed, the applicant agreed with my assessment and he responded that while he had faced a lot of threats he had never been charged or prosecuted with any offence and he would not have been able to depart if he had. Nor does his departure support his claim that he left home without authorization/consent or that his departure was viewed as illegal or that as a result he will be considered to be anti-government. In sum, in light of the applicant’s legal departure from Ho Chi Minh City international airport using his legal passport, together with the country information that shows Vietnam allows nationals to freely travel abroad, I do not accept that he left home without authorization/consent or ‘escaped without permission’. I do not accept that his departure was viewed as illegal or led to him being considered to be anti-government.

The applicant’s return as a failed asylum seeker

53.I find that the applicant obtained a legal Vietnamese passport and departed Vietnam legally from Ho Chi Minh City’s airport in the usual way. He says he travelled to [Country 1] where his passport was taken by a people smuggler. In [Country 1] he boarded a boat that reached Australia on 8 April 2013 and he was considered to be an Irregular Maritime Arrival. He has been in detention ever since. He states he fears that on his return he will be harmed by the Vietnamese authorities because he will be a returnee who had sought Australia’s protection. He claims the Vietnamese authorities know he has sought Australia’s protection because after arriving in Australia: his personal information was made public on the Department’s website; and when he was at [the detention centre] some Vietnamese officials visited and they may have been told he was detained there; and the neighbour who organised his travel had been arrested.

The [detention centre] visit by Vietnamese officials

54.Information before the Tribunal shows that in order to facilitate the return of Irregular Maritime Arrivals the Australian authorities liaise with the Vietnamese authorities and provide their personal information to those authorities. As discussed at hearing, the delegate’s decision indicated[3] that: it is reasonable that the Vietnamese authorities would send Immigration officials to meet with detainees to obtain necessary personal information to confirm their identity and nationality; there was no evidence to suggest those officials made unreasonable enquiries at the time; and Australia regularly provides personal information to foreign governments to facilitate removal of unlawful non-citizens. The delegate’s decision also indicated that: while the applicant had produced identity documents these had not been provided to the Vietnamese delegation; the applicant had not in fact been interviewed by the officials and had not been scheduled to meet them; and there was no evidence that the officials were aware of other detainees including the applicant. The delegate’s considerations are supported by the former Minister The Hon Tony Burke MP who wrote to the President of the Vietnamese Community in Australia at the time in 2013, and the letter stated in part:

·At no time are Vietnamese officials given access to asylum seekers from Vietnam while it is being determined whether or not they are refugees. 

·A small team of Vietnamese officials visited [a few] detention facilities over recent weeks.

·You can’t return somebody to their home country without the cooperation of their Government.

[3] Pages 14-16

55.At hearing the applicant responded he had not met with the Vietnamese officials during their [detention centre] visit but he argued that he would have been included with the 30-40 people who had been deported after the visit. But as I then pointed out, while I am unaware of the personal circumstances of the Vietnamese nationals who had been returned to Vietnam at that time, based on the foregoing information he would not have been deported at that time as he had never been scheduled to meet the Vietnamese officials, and they had not known he was there. I pointed out to the applicant that the [detention centre] visit by Vietnamese officials would not cause him any difficulties when he returns to Vietnam, and he responded that having heard this he had no comments.

56.In sum, information before the Tribunal shows that such visits by Vietnamese officials in order to confirm the identity and nationality of a detainee before issuing a travel document can be undertaken so that the Irregular Maritime Arrival can be returned to their home country. Nonetheless, based on the material before the Tribunal I do not accept that the applicant’s detention came to the attention of any Vietnamese officials who had visited [the detention centre]. I do not accept there is a real chance that the [detention centre] visit by Vietnamese officials would cause him any difficulties in Vietnam now and in the reasonably foreseeable future.

The Department’s data breach

57.The applicant claims the Vietnamese authorities know he has sought Australia’s protection because after his arrival his personal information was made public on the Department’s website. As discussed at hearing, information before the Tribunal shows that the Department acknowledged that personal information relating to applicants held in immigration detention was unintentionally released on the Department’s website as part of a data breach affecting some 10,000 people in detention that occurred in February 2014. The Department advised the information included full names and birth dates, nationalities, location, arrival date and boat arrival information of the people in detention, but there was no indication the data breach released any protection claims of an applicant.[4] A media article stated that a report by management consultants KPMG found that in the period the document was publicly available it was downloaded in 16 countries outside Australia- Vietnam was not one of those countries.[5] I note that the abridged KPMG report does not mention countries where the information was downloaded. The Department’s investigation report[6] stated in part:

[4] As reported in The Guardian, 19 February 2014, Immigration Department data lapse reveals asylum seekers' personal details, [ As reported in The Guardian, 19 June 2014, File containing asylum seekers' data downloaded in China, Russia and Egypt, [ Department of Immigration and Border Protection: Own motion investigation report, November 2014, [ 19 February 2014, the OAIC received information that a database containing the personal information of 'almost 10,000' asylum seekers was available on DIBP’s website (the data breach).
Each month, DIBP publishes a document titled Immigration Detention and Community Statistics Summary on its website ( The document includes statistics about asylum seekers. For accessibility reasons, DIBP publishes the document in Adobe PDF and Microsoft Word versions.
On 10 February 2014, DIBP published the Microsoft Word version of the January 2013 issue of the Immigration Detention and Community Statistics Summary, dated 31 January 2014 (the Detention report). In preparing the Microsoft Word version of the Detention report for web publication, DIBP embedded the Microsoft Excel spreadsheet that had been used to generate the statistics used in the Detention report. The spreadsheet included the personal information of approximately 9,250 asylum seekers (the listed individuals) and was accessible through the Detention report.
DIBP was notified about the breach by the Guardian Australia at 9.15am on 19 February 2014. DIBP removed the Detention report from its website by 10.00am on that date. The Detention report was available on DIBP’s website for about eight and a half days.
DIBP also identified that the Detention report was also available on The Internet Archive (Archive.org) from 11 February 2014. DIBP wrote to Archive.org on 24 February, seeking removal of the report. Archive.org complied with this request on 27 February. The Detention report was available on Archive.org for about 16 days.

The categories of personal information compromised in the data breach consisted of:
a.full names
b.gender
c.citizenship
d.date of birth
e.period of immigration detention
f.location
g.boat arrival details
h.reasons why the individual was deemed to be unlawful

58.I find the applicant was in detention at the relevant date and so his personal information was accessed by third parties that may have included the Vietnamese government. As I said to the applicant at hearing, the date breach was unexpected, improper, and rectified once discovered. However, in light of the foregoing information I do not accept that any information beyond personal identifiers and the way he reached Australia was released. I do not accept that his claims and his stated reasons for seeking Australia’s protection were included in the data that had been posted online. In sum, I cannot discount the possibility that the Vietnamese government became aware of the applicant’s personal information and circumstances in Australia because of the data breach in 2014.

59.Nonetheless, as discussed at hearing, the DFAT report Vietnam shows that in December 2016 Australia and Vietnam signed a new Memorandum of Understanding that provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’. The applicant would be covered by that Memorandum of Agreement and so if the applicant is returned to Vietnam the Vietnamese authorities would be provided with the applicant’s personal information anyway. The DFAT report Vietnam states in part:

TREATMENT OF RETURNEES

5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.

5.16 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.

5.17 DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the Government as victims of criminal activity (people smuggling), rather than as criminals facing the penalties allowed in the law for illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.

60.On the applicant’s return to Vietnam pursuant to the Memorandum of Understanding, the Vietnamese authorities will know or believe that in 2013 the applicant departed Vietnam on his passport and travelled by boat from [Country 1] to Australia where he was detained. But as discussed at hearing, the DFAT report Vietnam shows that upon return he will not be subject to a fine under Article 21[7] as he underwent official exit procedures with his passport when he departed Vietnam.

[7] In Vietnam’s Penal Code 1999

61.As discussed at hearing, while he had paid money to organisers of people smuggling operations who had organised his flight out of Vietnam and his travel by boat from [Country 1], he had not been involved in organising people-smuggling operations. In the applicant’s narrative, since his departure the police had visited the family home one time and requested that the applicant attend at the police station when he returns. As well, the neighbour who organised his travel to Australia and whose daughter accompanied him, had subsequently been arrested and jailed. At my hearing he stated the police had not said he was in trouble and they did not have an arrest warrant, nor did they tell his parents why they were seeking him. As discussed at hearing, in light of country information that the Vietnamese authorities arrest and jail people smugglers I cannot discount the possibility that the neighbour who organised his travel from [Country 1] to Australia by boat had later been arrested and jailed as claimed. I cannot discount the possibility that the authorities became aware the applicant had used the services of the neighbour and so wished to talk to him, albeit he in fact departed Vietnam legally and in the usual way. However, the applicant is not a people smuggler and I do not accept that he will be perceived to have been involved in the organisation of people smuggling. The DFAT advice shows he will be viewed by the Vietnamese government as a victim of criminal activity rather than as a criminal. In light of the foregoing discussion I do not accept there is a real chance that the arrest of the neighbour and the police’s wish to interview the applicant would on his return to Vietnam lead to him facing serious or significant harm now and in the reasonably foreseeable future.  

62.As discussed at hearing, he will return to Vietnam as a failed asylum seeker and so ostensibly could be charged with Article 91. However, the DFAT report Vietnam stated that DFAT is unaware of any cases where this provision has been used against failed asylum seekers, and returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. At hearing[8] I discussed how some country information[9] appeared to show some Vietnamese returnees had been sentenced to imprisonment merely for having been asylum seekers. However, according to other news reports, those imprisoned were identified and prosecuted for people smuggling. A May 2016 Reuters report said that a Vietnamese court had jailed two men and two women for ‘organising others to flee abroad illegally’ after Australian authorities returned them to Vietnam.[10] In addition, a December 2016 Agence France Presse article[11] reported that four men had been sentenced by a court in Ba Ria-Vung Tau for people smuggling, and the remainder of the 21 people on board their vessel did not face charges, according to the article.

[8] At the representative’s request the country information was also provided in the Tribunal’s post-hearing email dated 6 July 2018

[9] ABC News report, 23 February 2017, Vietnamese asylum seeker returned by Australia says 'a bullet would be better', [ Amnesty International’s 2016/17 annual report said that eight asylum-seekers forcibly returned from Australia to Vietnam were sentenced to between two and four years’ imprisonment. [Amnesty International Report 2016-17, Amnesty International, February 2017, p399]

[10] Article in The Guardian, 27 May 2016, Vietnam jails four asylum seekers returned by Australia, [ Article by AFP, 15 December 2016, Vietnam jails people smugglers deported from Australia, [ submission of 12 July 2018 discussed other examples including: four ethnic Khmer monks convicted in 2013 after attempting to flee Vietnam seeking political asylum; four members of the Vietnam Populist Party convicted in 2010 after attempting to seek asylum in Cambodia and Vietnamese authorities accused the four of meeting with Vietnam Populist Party officials in Cambodia and ‘actively opposing Vietnamese state policies.’; and a protestant Pastor convicted in April 2017. However, the circumstances of the ethnic Khmer monks, Vietnam Populist Party officials, and protestant Pastor are very different to the circumstances of the applicant. The sources provided in the submission show in part:

·“Venerable Thạch Thươl (m), born 1985, is a Khmer Krom Buddhist monk and deputy abbot of Serei Ta Sek Temple in Sóc Trăng province. He was arrested in May 2013 and charged under Article 91 of the 1999 Penal Code (“Fleeing abroad to oppose the people’s administration”). In March 2013 local authorities and Buddhist officials ordered Thạch Thươl and two other Khmer Krom monks to defrock or face imprisonment, alleging that the three were spreading “fabricated information” abroad about human rights violations in Viet Nam, through interviews with foreign media and contact with the Khmer Krom Federation, a US-based advocacy group. He attempted to flee Viet Nam to seek political asylum.”[12]

·“Vietnam has jailed four people it accused of associating with a banned opposition party and opposing the communist regime, official media said Thursday. The three men and one woman were given sentences of between three and five years by a court in the central province of Lam Dong on Tuesday. They were accused of having links with the Party for the People, which is banned in the one-party state, the Tin Tuc and Cong An Nhan Dan newspapers reported. The four were identified as Duong Au, Phung Quang Quyen, Truong Van Kim and Truong Thi Tam. The authorities accused the group of meeting Party for the People leaders in Cambodia and of actively opposing Vietnamese state policies, including those concerning controversial bauxite mines. The mining ventures in Vietnam`s central highlands, which include Lam Dong, are a highly sensitive issue in the communist nation.”[13]

·“Pastor A Dao (m), born 1981, is a member of the Ha Lang minority from the Central Highlands and a protestant pastor of the Montagnard Evangelical Church of Christ. He was arrested on 19 August 2016 after he returned from attending the ASEAN People’s Forum/ASEAN Civil Society Conference in Dili, Timor Leste. He was held incommunicado for at least six months. He was tried, convicted and sentenced to five years imprisonment on 28 April 2017 under Article 91 (“Fleeing abroad or defecting to stay overseas in order to oppose the people’s administration”) of the 1999 Penal Code.”[14]

[12] Amnesty International report ASA 41/8162/2018, 4 April 2018, [ Vietnam Human Rights Network article, Vietnam jails four for links with banned party, 23 April 2010,  [ Amnesty International report ASA 41/8162/2018, 4 April 2018, [ country information shows that Article 91 has been used by the Vietnamese government to convict Vietnamese returnees, the examples provided in the submission concern higher profile political activists and politically active religious leaders. In light of my foregoing findings that the applicant has no profile as a political activist and he has had no involvement in politics and activism in Vietnam and since he departed, and in light of DFAT’s advice that ‘Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications.’, I find there is not a real chance that he would be charged under Article 91 if he is returned to Vietnam. 

65.As discussed at hearing, the DFAT report Vietnam shows that on return to Vietnam he may be detained for a brief period and interviewed and then soon released, and he will not be mistreated. The DFAT report Vietnam states in part:

Conditions for Returnees

5.21 DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.

5.22 DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.

66.The applicant has at times spoken of Vietnamese nationals he has heard have been detained on returning to Vietnam. However, I have assessed his personal circumstances and relevant current country information in my decision.

His household registration

67.The applicant stated that he had been registered in his father’s household register. The applicant and representatives submit the applicant will have a profile in his home area as a political dissenter, former successful business owner, failed asylum seeker and past association with a people smuggler. They submit that because of his profile he will have difficulty regaining his household registration (ho khau) as the authorities have the power to deny household registration to those it considers political dissidents. They submit that a lack of household registration would make it difficult for him to subsist, gain employment or access health facilities.

68.As discussed at hearing[15], country information shows that in Vietnam persons absent from their permanent place of residence for more than six months without registering their temporary absence and without plausible reason shall have their names crossed out from the household registration book issued by district police, and when they return they must re-apply for registration:

[15] At the representative’s request the country information was also provided in the Tribunal’s post-hearing email dated 6 July 2018

·In 2014 the National Offender Management Service[16] and Praxis Community Projects[17] stated that:[18]

[16] The National Offender Management Service is a governmental department in the UK, making sure people serve the sentences and orders handed out by courts, both in prisons and in the community.

[17] Founded in 1983, Praxis Community Projects is committed to working with vulnerable migrants in the UK.

[18] National Offender Management Service and Praxis Community Projects, 2017, pp.2-3, Returning to Vietnam, [ absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reason shall have their names crossed out from the household registration book. When they return they must re-apply for registration. In order to regain Ho Khau, returning Vietnamese expatriates must produce one of the following documents:

•Vietnamese passport or travel document which has a stamp verifying entry at the border gate;

•Proof of Vietnamese nationality granted by the Vietnam representative agencies overseas, accompanied by proof of the permission to return to Vietnam issued by the related authority;

•Certificate of Vietnamese nationality granted by the People’s Committee of provinces and cities directly under central authority, accompanied by proof of the permission to return for permanent residence issued by the related authority.

·In February 2009 the Immigration and Refugee Board of Canada also stated in part:[19]

The Official also indicated that:

Persons who have been absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reasons shall have their names crossed out from the household registration book. When they return, they must re-apply for registration of their permanent residence as stipulated.

With regard to those persons who have registered their permanent residence but who in fact do not live in their permanent residence address without any plausible reasons, or cannot live there, the household management agency must cross out their names in the household registration book.

When asked about whether individuals are removed from their household registration as a form of punishment, an international human rights lawyer specializing in Southeast Asia stated the following: "I know of no situation where a person is removed from their own [household] Registry, but cannot state that it is not done in cases where some doubts exist as to a family relationship" (International Human Rights Lawyer 18 Feb. 2009). No further information relating to the removal of individuals from their household registration as a form of punishment could be found among the sources consulted by the Research Directorate.

·The US Department of State report, Reciprocity Schedule, [ shows Household registries are maintained by the Public Security Bureau.[20] As well: “The official residence is registered in the ‘household registry’ (Ho Khau) issued by the district police.”[21]

[19] VNM103087.E: Vietnam: Circumstances under which an individual's name may be removed from a household registration; Research Directorate, Immigration and Refugee Board of Canada, Ottawa

[20] Under ‘Other Records’

[21] Under ‘Police Records’

69.As discussed at hearing, based on the foregoing country information it is likely that his absence from his family household has led to his name being crossed out from the family household registration book. However, as a returning Vietnamese expatriate he will be able to re-apply for registration with the police/PSB, and he can do this by providing a document showing permission to return to Vietnam. In light of my foregoing findings I do not accept the applicant will be considered a political dissident and I do not accept his past difficulties with the family [trade] business, long stay out of Vietnam and return as a failed asylum seeker would singly or cumulatively lead to him facing difficulties regaining registration in his father’s household register. I do not accept that on his return to Vietnam and because of his need to re-apply for household registration there is a real chance the applicant would face harm now and in the reasonably foreseeable future.

His mental health  

70.The applicant has been detained for a long time. At hearing when I queried whether he had mental health issues, he responded that he suffers from stress and he had once seen a doctor and was advised to look after his stress. In light of his evidence and having particular regard to the applicant’s scant mental health needs here, I am not satisfied the applicant will have any additional need for mental health treatment after he returns to Vietnam. I am not satisfied there is a real chance that the stress he suffers would result in him experiencing serious harm including a threat to his life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens his capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist, now and in the reasonably foreseeable future. As well, I am not satisfied the stress he suffers would lead him to face a real risk of significant harm.

Conclusion

71.In sum, I do not accept there is a real chance or a real risk the applicant would be harmed on his return to Vietnam either at the airport or in his home area by the Vietnamese authorities, the community, or any other agents, now and in the reasonably foreseeable future. I find that on arrival he may be initially detained and questioned but he would then be soon released. I find that even though the Vietnamese authorities will know or believe the applicant is a failed asylum seeker who had sought Australia’s protection, there is not a real chance or a real risk the applicant will be harmed as a result. I find he did not commit an offence when he departed Vietnam legally, and there is not a real chance or a real risk he would be charged with the offence of ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’. He had not been involved in political activities in Vietnam before he departed and he has not been involved in political activities since he departed or in Australia. He had never been a people smuggler and while he organised his travel through a people smuggler particularly so he could travel from [Country 1] on a boat, I do not accept there is a real chance or a real risk this will cause him to be charged with an offence or fined. Whilst he will be a returnee from Australia who has now spent several years outside Vietnam and will be a failed asylum seeker, I do not accept there is a real chance or a real risk that any of these circumstances including when considered cumulatively would cause him to be harmed in Vietnam. While a brother went to [Country 2] I do not accept this supports the applicant’s claims or that it would cause him to face harm on his return, and indeed his evidence is that the brother returned to Vietnam and lives independently there. In light of the foregoing, I do not accept the applicant was ever perceived to be or on his return would be perceived to be anti-government or anti-Party or a political activist or dissenter. I do not accept there is a real chance or a real risk that the business difficulties he has described including the bribe-seeking and the tax officials seeking to levy tax and the family/applicant’s response to those difficulties and the sale of the business, now several years in the past, would cause the applicant any difficulties or would lead to him being harmed in his home area by any Vietnamese authorities or any other agents now and in the reasonably foreseeable future.

72.The applicant’s evidence is that the family business’s [equipment] was sold and the father now farms and the brother lives elsewhere in Vietnam. At hearing when asked the applicant did not say despite ample opportunity that he had any interest in again doing [trade] or establishing a business. I find there is not a real chance or real risk he will again be asked to pay bribes to the local [authorities] or pay business tax, now and in the reasonably foreseeable future. I do not accept there is a real chance that on his return to Vietnam the applicant would face harm now and in the reasonably foreseeable future because of his need to re-apply for household registration (ho khau).

73.When I consider all of the applicant’s personal circumstances together, and all of my findings about his narrative and evidence together, and all of the submissions of the applicant and his representatives, I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in Vietnam, when considered singly or cumulatively of:

·Political opinion: He fears the Vietnamese authorities will harm him because of his political opinion, actual or imputed, as being against the government, and/or because he will return as a failed asylum seeker.

·Membership of a particular social group of persons who were targeted for bribes by corrupt government officials because of their perceived wealth and social status within the community.

·Membership of a particular social group of successful self-employed tradesmen conducting their own business enterprises vulnerable to corrupt demands by local government and provincial government officials.

·Membership of a particular social group of failed asylum seekers in Vietnam.

·Membership of a particular social group of people without ho khau in Vietnam.

74.I do not accept that in Vietnam he faces harm from the Vietnamese authorities or from any other agents or the general community for any reason.

Refugee criterion

75.In light of the above assessment, the Tribunal finds that in Vietnam the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Vietnam the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if he returns to Vietnam.

Complementary protection

76.I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Vietnam, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that when I consider all of the applicant’s personal circumstances together, and all of my findings about his narrative and evidence together, and all of the submissions of the applicant and his representatives, I do not accept there to be a real risk that the applicant will suffer significant harm from the Vietnamese authorities or anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.

77.The applicant suffers from stress but he has only once seen a doctor and was advised to look after his stress. Based on his evidence I am not satisfied his psychological and medical condition now and in the reasonably foreseeable future will result in a real risk that he will suffer significant harm. I acknowledge the applicant may face dislocation when he returns to Vietnam, as he has not been there since 2013. But in light of the foregoing I consider the applicant will be able to return to his family and family home without difficulties and make his way in life from the time he arrives. At hearing the applicant has described the stable family circumstances in his village where his parents and family live in their family home, the father farms [on] leased land, the applicant’s wife works [and] their [child] attends school. He ostensibly has immediate family support available in [Village 1] and he knows the place. He is a mature married man who has acted independently in making his way to [Country 1] and then to Australia. Although the family [trade] business has ceased, in addition to his [trade] experience he indicated past work [experience].  While he stated he has no qualifications and he made the broad claim that he considers it is not safe for workers in Vietnam, he completed schooling in Vietnam and as discussed at hearing he has work skills and experience that will enable him to seek and get safe work.

78.In light of the foregoing, I do not accept that in Vietnam the applicant faces a real risk of significant harm for any reason, including because of generalised violence or the length of time he has been outside Vietnam and detained or his profile as a failed asylum seeker and returnee from Australia, from the community, police or other authorities, or from any other agents.

Overall Conclusion

79.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

80.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

81.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

82.The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

‘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.

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.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.