1804794 (Refugee)

[2022] AATA 2760

1804794 (Refugee) [2022] AATA 2760 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804794

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Scott Clarey

DATE:30 June 2022

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

Statement made on 30 June 2022 at 5:16pm

CATCHWORDS

REFUGEE – Protection visa – Vietnam – religion – applicant had converted to Christianity while in Australia – twice divorced single woman/single mother – victim of family violence – applicant holds fears about her family’s reaction to her Christian faith – economic hardship – fears based on religion were vague and uncertain – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 499

Migration Regulations 1994, 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 to refuse to grant the applicant ([Mrs A]) a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [Mrs A] is a [age]-year-old Vietnamese woman. In her protection visa application, [Mrs A] stated that she was born in Ho Chi Minh City, Vietnam on [date]. She stated that she speaks, reads and writes Vietnamese and can speak Cantonese. She indicated she is of the ‘Vietnamese’ ethnic group and a follower of the Christian faith. I note that [Mrs A] later claimed (including in both a statement provided to the Tribunal as previously constituted and at the hearing of the Tribunal as currently constituted) that she is of Chinese ethnicity (discussed further below). I note that according to information on the Department’s file, which was discussed with [Mrs A] at the hearing, she has been married previously twice. [Mrs A] was first married in Vietnam in 1995 (to [Mr B]). This marriage ended in divorce in 2009. She has one adult daughter from this relationship, who lives in Vietnam. She was married for a second time to an Australian man (Mr [C]) in January 2010 but this relationship ended in March 2012. [Mrs A] claimed that she was a victim of family violence from this relationship, and she subsequently moved into a women’s refuge when the marriage broke down. [Mrs A]’s parents are both deceased and she has [siblings] living in [Vietnam]. [Mrs A] first arrived in Australia on [date] March 2011 having departed Vietnam legally, entering Australia on a partner Class UF Subclass 309 visa (related to her second marriage).[1] I accept this biographical information to be true.  

   [1] See folios 2–18 of the Departmental file.

3. [Mrs A] applied for the visa under review on 6 November 2013 and the delegate refused to grant the visa on 24 September 2015, on the basis that they were not satisfied the applicant was owed protection in Australia. [Mrs A] provided the Tribunal with a copy of the delegate’s decision record. I note that [Mrs A] previously appealed the delegate’s decision (of 24 September 2015) to refuse to grant the visa to the Tribunal in October 2015. The Tribunal, as previously constituted, affirmed the delegate’s decision on 16 December 2016. [Mrs A] subsequently appealed the Tribunal’s decision to the Federal Circuit Court of Australia (FCC) on 19 January 2017. I note that the FCC quashed the previously constituted Tribunal’s decision of 16 December 2016 and remitted the matter for reconsideration to the Tribunal on [date] February 2018. In the order, the Court noted that the Tribunal had fallen into jurisdictional error by neglecting to adequately consider issues related to [Mrs A]’s claims for protection, including those related to her being a twice divorced single woman who had also been a victim of domestic violence, and issues related to her religion, in particular the fact that she had converted to Christianity while in Australia (see further summary of [Mrs A]’s visa history in Australia below).

4. I note that the process for hearing this case suffered from significant delays, including due to the multiple (and prolonged) lockdowns and restrictions imposed in Victoria by the State government related to the COVID-19 pandemic over the last two years. Due to the complexity and sensitivity of the matters raised by this case and the particular circumstances of [Mrs A] this case was not deemed appropriate to be progressed through remote hearings, and that in-person hearings were required. I note that for extended periods over the last two years (and often at very short notice) the Tribunal was unable to hold in‑person hearings due to the COVID-19 restrictions that were imposed by the State government of Victoria. I also note that on 22 January 2022, a new Department of Foreign Affairs and Trade (DFAT) country information report on Vietnam was published. Given that significant updated information was contained in the report, including relating to the issues surrounding single and divorced women, and issues related to religion in general (and Christianity in particular, discussed further below) that was potentially relevant to [Mrs A]’s case and claims, it was deemed that a second hearing was necessary to discuss these issues with her.

5. [Mrs A] appeared before the currently constituted Tribunal on 23 March 2021 and again on 22 June 2022 to give evidence and present arguments. [Mrs A] did not present any witnesses at the hearing in support of her claims. [Mrs A] was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. On the basis of the copy of [Mrs A]’s Vietnamese passport provided to the Department, I accept that she is a citizen of Vietnam and that her identity is as she claims it to be. I accept that Vietnam is [Mrs A]’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

7. The issues in this review are whether [Mrs A] has a well-founded fear of being persecuted for one or more of the five Convention reasons and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Vietnam, there is a real risk she will suffer significant harm.

8. For the following reasons, I have concluded that the decision under review should be affirmed.

   Relevant background

9. The following timeline of [Mrs A]’s visa history in Australia is drawn from information contained in both the Tribunal and Department files, as well as departmental records:

   Prospective Marriage (Temporary), TO 300

   ·On 12 May 2009, the applicant lodged an application for a subclass 300 prospective marriage visa.

   ·On 7 August 2009, the Department refused her grant of the subclass 300 visa.

   Partner (Provisional), UF 309/ Partner (Migrant), Class BC 100

   ·On 13 May 2010, the applicant lodged a subclass 309 partner visa.

   ·On 23 February 2011, the Department granted her the subclass 309 visa.

   ·On [date] March 2011, the applicant first arrived in Australia as the holder of a Partner, Class UF, subclass 309, visa valid until 22 February 2013.

   ·On 13 February 2013, the Department refused the applicant grant of partner subclass 100 visa and notified the applicant. On the same date, the Department granted the applicant Bridging A visa valid until 15 November 2013. 

   Review application (Case 1304417– Tribunal 1)

   ·On 21 March 2013, the applicant lodged an application (Tribunal 1, differently constituted, case number 1304417) for review of the refusal of the partner subclass 100 visa. 

   ·On 17 October 2013, Tribunal 1 as previously constituted determined that it had no jurisdiction to review the refusal of the partner subclass 100 visa as the review application was received outside the prescribed period for lodging a review application.

   Permanent Protection XA 866 visa application/refusal

   ·On 6 November 2013 the applicant lodged an application for a Protection visa Class XA sc 866 visa. On the same day the Department granted her an associated bridging visa.   

   ·On 24 September 2015, the Department refused her grant of Protection Class XA, subclass 866, visa.

   Review application (Case 1513756 – Tribunal 2)

   ·On 9 October 2015, an application for review of the above decision was lodged with the AAT (Tribunal 2, differently constituted, case number 1513756) with a copy of the Department’s decision and notification.

   ·On 16 December 2016, Tribunal 2 affirmed the Department’s refusal to grant the subclass 866 visa to the applicant.

   Judicial Review (Federal Circuit Court of [Australia])

   ·On 19 January 2017, the applicant lodged an application for a judicial review of Tribunal 2 decision.

   ·On [date] February 2018, FCC remitted the case to the Tribunal, stating the following reasons:

   The Tribunal committed jurisdictional error by not dealing with the applicant’s     claims. The Tribunal did not deal with the question of harm from the   community in its consideration of the harm the applicant may face by reason     of her religion. The emphasis in the applicant’s claims is irrelevant. If a claim    was made, the Tribunal is obliged to deal with it, even if the claim was a   minor aspect of the totality of the claims.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has had regard to all the evidence on the Department’s file and on the Tribunal’s file (as currently constituted) and the Tribunal’s file (as previously constituted). This includes the following submissions made in support of [Mrs A]’s application, that were submitted to the Department and/or the Tribunal as previously constituted:

    ·A psychological assessment report dated 30 August 2013 from [a] registered psychologist).

    ·A letter dated 1 November 2013 from [a] support worker at a women’s refuge where [Mrs A] previously lived.

    ·An undated letter from Pastor [D], of [Church 1]. 

    ·A letter dated 24 November 2014 from [a] GP who has treated [Mrs A].

    ·a written statement[2] from [Mrs A] (received by the Tribunal as previously constituted on 16 May 2016)

    ·country information that was submitted with the above-mentioned statement in support of her claims.

    [2] See folios 48-55 of the Tribunal file for 1513756

11. I note that the above information is dated from 2013 to 2014 and there is a paucity of recent relevant information related to [Mrs A]’s claims, including in relation to her health. I note that [Mrs A] has submitted very little documentary evidence to the Tribunal as currently constituted in support of her claims.

12. I note that [Mrs A] attended an interview with the Department on 25 March 2015. She further expanded on her claims for protection in a written statement[3] submitted to the Tribunal as previously constituted on 16 May 2016.

    Claims from the protection visa application

    [3] See folios 48-55 of the Tribunal file for 1513756

13. [Mrs A] set out her claims for protection in her visa application form as follows (unedited):

    Q 44 Have you experienced harm in that country?

    A:   When my first marriage broke down I experienced ill treatment from my family and isolation from my community. I was yelled at, called names, and excluded from everyday activities. It was considered a great shame and I was punished by my family.

    Q 45 What do you fear may happen to you if you go back to that country?

    A:   If I am made to go back to Vietnam, I will be rejected and isolated by m¥ family as they think I am bringing shame to them. My community will also reject me, supporting the view of my family. I will be isolated, and excluded.

    This isolation will mean I will become homeless, with no-where to stay, having being physically rejected not just socially.

    The community culture is very strict and as this is my second marriage which has broken down and the personal and societal shame, regardless of the family violence I experience, will be pointed at me.

    Due to the spread of word of mouth, it will also be extremely difficult for me to find work and support myself with basic necessities such has housing, food and medicine. My reputation, which means everything to function in the society, has been destroyed by this experience of marriage breakdown due to family violence. This public shaming and rejection will mean no-one will want to employ me. As it is in Vietnam, looking for job is very hard, but with this societal rejection it will be near impossible. My outlook is very grim and I deeply fear I will be forced to live in poverty on the streets, homeless and unprotected.

    I am very afraid that if I can’t get a job and no-one will rent to me, I will be left to support myself on the streets. Other women in my position are forced into prostitution because they are so desperate, and I fear that I will have no help, and may have to do that. I am so upset and afraid this will be my fate. I feel it is better to die here than to go back to my country.

    Since coming to Australia, I have been converted to Christianity. I fear that I will be persecuted by my community and my family as they are all practicing Buddhists.

    Q 46 Who do you think may harm/mistreat you if you go back?

    A:   As I stated previously, I will not get the support from my family, sisters and brother who will ill treat me, reject and isolate. When my first marriage failed they treated me badly, by calling me names, yelling at me and rejecting me. I fear their anger will be much worse and I will be mistreated badly by them.

    My old friends will ostracize me and not go against my family or others in the community.

    Q.47 Why do you think this will happen?

    A:   Because I bring shame to my family and relations and a financial burden to them as well. There are strong beliefs that marriage is forever and breaking up is bad, even if there is violence in the marriage. I will be seen as a failure, blamed, and verbally abused, as they will believe it is my fault and I have caused them shame.

    As I have become a Christian, I will be seen as bringing conflict to Vietnamese traditional culture and religion. I will be regarded as an outcast.

    Q 48.Do you think the authorities of that country can and will protect you if you go back?

    A:   No, I do not believe the authorities will protect me. I am a very insignificant person in the eyes of authority, very poor, uneducated and unsupported. It is very difficult to get any lawful or police help in my country. Even if I go to another area where I don’t know anyone, people are suspicious of those they don’t know, and getting help or housing or a job will be very difficult. Overcoming the cultural shame is impossible. There are no agencies to help me like I have had support in Australia, and I will be completely alone.

    As a female too, I am discriminated against. In Vietnam women are connected to men, and protected by them. All the men in my family and community will reject me, and the women will have to do the same even if they don’t want to.

14. Based on all of the information before the Tribunal, the following is a summary of [Mrs A]’s claims for protection:

    ·She is a Christian convert from Buddhism (who converted to Christianity in Australia). She fears persecution from Vietnamese authorities if she were to practice their faith in Vietnam, and fears being restricted in the practice of faith if she were to return there. She also holds fears about her family’s reaction to her Christian faith.

    ·She is a twice divorced single woman/single mother who has also been the victim of domestic violence. She fears the reaction and judgement of Vietnamese society and that of her family. She fears physical abuse from her family (particularly her brothers) as a result of these factors.

    ·She fears economic hardship if she were to return to Vietnam, including being unable to find employment and/or adequate housing, which may impact her ability to subsist there.

    RELEVANT LAW

15. 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, 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 criterion

16. 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 Convention).

17. Australia is a party to the 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.

18. Sections 91R and 91S of the Act, as in force at the relevant time, qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

20. 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.

21. 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.

22. 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.

23. 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.

1. 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.

2. 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 criterion

3. 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’).

4. ‘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.

5. 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

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

   Evidence from the Tribunal hearings on 23 March 2021 and 22 June 2022

7. At the hearings, [Mrs A] told the Tribunal she was born in Ho Chi Minh City, Vietnam in [year]. She said that she arrived in Australia in March 2011. She said that prior to her getting married, she worked in a [factory] for a [company] in Ho Chi Minh City. When asked about her upbringing [Mrs A] said that she had [siblings] all of whom were married. She said her mother passed away a long time ago and her father passed away in 2019. She said that she was still in contact with her sister but not her brothers. She then stated that sometimes when she would call her sister one of her brothers would be there and so she would talk to him on those occasions. She said that she spoke to her sister in Vietnam once or twice per month. She had previously been married and had one daughter (who was born in [year] and still lives in Vietnam) with her first husband but this marriage ended in divorce. I asked [Mrs A] why she had first decided to leave Vietnam and come to Australia in 2011. She stated that her second husband had sponsored her to come to Australia on a partner visa.

8. When asked why she had applied for a protection visa several years after arriving in Australia, [Mrs A] said words to the effect that she had been the victim of domestic violence at the hands of her second husband and she had put up with the situation for a long time. She said that she did not know how to report this to the police or that she could see a doctor for help. She said that she later learned from her friends that she could have permanent residency after two years. She said that she asked her former husband after the two-year period had passed, and she was told by him that he had already cancelled his visa sponsorship for her to remain in Australia. [Mrs A] said that upon learning this she sought legal advice from various organisations in Australia. She said she was asked a number of questions and one organisation took her to a temporary women’s refuge that assisted female victims of domestic violence. She said this refuge helped her to do a number of things including to apply for an intervention order against her former husband, but this attempt to get an intervention order against her former husband ultimately failed. She said the women at the refuge asked her what would happen if she returned to Vietnam and when she told them they helped her apply for the protection visa that is under review.

   Fear of harm related to religion

9. I asked [Mrs A] about her religious beliefs. She stated that she was a Protestant and attended a Protestant church in Melbourne. She said that she believed that every person should have a religious belief and that in Vietnam her family were followers of Buddhism. [Mrs A] said when she first came to Australia the Buddhist temples would usually organise their services on Saturdays and Sundays and she indicated that she initially attended. I asked [Mrs A] why she had decided to convert from Buddhism to Christianity. She responded that in Buddhism ‘the ceremony’ happens on the first and 15^th days of the month and in Vietnam they didn’t take into account which date these days fell on. She said she decided to convert to Christianity from Buddhism because Protestant church services were more convenient, and she preferred to attend the Sunday service at the Protestant church. [Mrs A] also stated that she thought she had probably been chosen by God or Jesus and that she didn’t really have any further motivation and incentive in converting other than she thought everyone should follow a religious belief. She said at the time she didn’t have many friends and did not know much about the church. She said that she had been first introduced to the church by a fellow patient at a clinic she attended who was Vietnamese of Chinese ethnicity. The person had told [Mrs A] that she was going home to prepare for the church service and [Mrs A] said that it was like a message that was being transmitted to her, that made her ‘wake up’. She then attended the church service with this woman.

10. I asked [Mrs A] about her involvement with the church in Australia. [Mrs A] said her church attendance had been affected by the COVID-19 pandemic and related restrictions. She said that prior to the pandemic she would go to church every week. She said the church would have events on weekdays but she could not attend because of her work schedule. When I asked [Mrs A] what the name of her church was, she said she could not remember the name but thought it might be ‘Chinese of Melbourne’. She said that every Sunday, pre-COVID, she would attend the church. I asked [Mrs A] if she was involved in any other church activities. [Mrs A] stated that because most of the people at the church spoke Mandarin or Cantonese she couldn’t really help them with their big events, but did try and help out with other miscellaneous activities such as cleaning. [Mrs A] stated that during the COVID-19 related lockdowns in Melbourne she attended the church through [social media] and other online means.

11. I asked [Mrs A] what harm she feared if she were to return to Vietnam in the foreseeable future. [Mrs A] said she had strong fears about returning to Vietnam, stating words to the effect that if she went back her life there would be much worse than death. I note that [Mrs A]’s description of her fears based on religion were vague and uncertain and that she at times struggled to articulate them. She said that because she had converted to Protestantism in Australia, she did not know if they allowed people to follow the Protestant faith in Vietnam or not. She said she thought that the Vietnamese government might suppress the Protestant church and its followers. She said that she didn’t really know what the situation was in Vietnam with regard to the practice of the Christian faith, but she had ‘heard about’ people being arrested and that was enough for her to become fearful.

12. I note the following country information about religion drawn from the DFAT country information report: [4]

    [4] Department of Foreign Affairs and Trade (DFAT), Country Information Report, Vietnam, 22 January 2022,  3.13, 3.21 and 3.32–3.39.

    Vietnam is officially an atheist state. Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion. In practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers. The 2020 US Department of State International Religious Freedom report estimates, based on census data, that 14 per cent of Vietnamese have some religious faith, with 6 per cent of the population Catholic and 5 per cent Buddhist. Protestants make up about 1 per cent of the population. Small religions and traditional religious-cultural practice (for example, ancestor veneration) are also practised.

    The Law on Belief and Religion came into effect on 1 January 2018. It established a role for the state in protecting religious freedoms and established legal personhood for religious groups. It requires such groups to register with the Government, and religious activities, including routine worship, festivals or conferences, to be registered. Activities can be disallowed on national security or morality grounds. The following sections focus on the day-to-day experiences of religious groups since the law came into effect.

    A key distinction is between registered and unregistered faith groups. After the Vietnam War and the establishment of the unified Socialist Republic, the state created official religious groups and, since then, further groups have become registered. Registered groups worship with limited or no Government interference; those that are not registered may be pressured by Government to join the registered group. Among unregistered groups a further distinction can be made between those groups that have some (perceived) political or foreign agenda and those that do not. Different people of different religions in different areas will also have different experiences, depending on local authorities. Those in cities are less likely to experience official interference.

    The Government recognises 38 religious organisations linked to 16 religious traditions, including Buddhism, Islam and Catholicism. Protestantism is broadly recognised and some international Christian organisations such as Seventh-day Adventists and the Church of Jesus Christ of Latter Day Saints (Mormons) are specifically recognised. Distinct denominations and new sects of any religion must individually register.

    The extent of difficulty that a religious group could expect to face from authorities (for example, refusal of registration, questioning or disruption of activities) can depend on where they are located. Many claims of Government interference are at the hands of local and provincial authorities rather than national authorities. Attitudes and policies can differ between authorities. 3.18 Many incidents relate to religious groups that are politically active in local land or environmental disputes. It can be difficult to distinguish between religious and political claims. The distinction is not necessarily apparent in the everyday experiences of religious adherents or the authorities, either or both of whom may see religious activity as inherently political.

    There are several high-profile examples of religious figures who have advocated for religious freedom and been imprisoned. Such cases are fewer in recent years but those who have been arrested and imprisoned in the past might still be under surveillance by authorities or summoned for regular interrogation. DFAT understands this is generally limited to questioning and surveillance and not violence. 3.20 Pew Research conducted a study in 2016 of global restrictions on religion that included analysis of ‘social hostility’ against people of different religions. That report placed Vietnam as one of the countries with the lowest levels of social hostility, along with other East Asian countries. Several in-country sources told DFAT that religious intolerance between people of different faiths is not an everyday problem in Vietnam.

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

    …

    Protestants

    There is a wide-range of Protestant traditions present in Vietnam. Protestants are mostly members of ethnic minorities but Kinh Protestant communities also exist, especially in the south. Issues of religious freedom and connection with land may overlap with ethnic issues. Officially registered churches that cooperate with the Government are generally able to organise and operate relatively freely and those that are engaged in political activism are likely to attract the attention of authorities.

    Protestant groups can face bureaucratic difficulties. For example, gatherings might be banned on technicalities such as not having approved lists of attendees. DFAT is also aware of reports of recent examples of more serious harassment such as Protestant ministers in remote areas having assets seized or premises raided – but notes, again, that religious and political issues tend to overlap.

    Registered Protestant groups experience less interference from the Government than unregistered groups. Nonetheless, DFAT understands some unregistered churches do operate. It is difficult to assess in a general way whether they have tacit approval of authorities, but some unregistered churches still operate with house church gatherings of a few people up to several hundred people. Other house churches may have a certificate of registration for prayer groups, for example for their family. The situation likely differs from place to place.

    In-country sources told DFAT activities such as Protestant conferences and meetings are generally unrestricted in large cities. Efforts to expand or build churches in more remote areas can be difficult. Bureaucratic obstacles, including obtaining permits, may prevent the construction of churches or the establishment of new communities.

    Conversely, Protestant house churches might provide social services with the cooperation of Government; for example, city authorities in Hanoi allowed house churches to operate drug rehabilitation services, according to the 2020 US Department of State International Religious Freedom Report. The same report also noted that Catholic and Protestant groups were sometimes reluctant to open schools or hospitals because of legal restrictions, despite the Government’s official encouragement of the opening of those services. In-country sources told DFAT of cooperation between different Protestant churches to provide food and other essentials to people during the COVID-19 pandemic. Protestant religious education is available, but again the situation may differ from place to place.

    Different denominational traditions tend to have good relationships with each other while remaining largely independent. Some Protestants have relationships with churches overseas, including in Australia, and international Protestant conventions have occurred recently in Vietnam with few reports of difficulties.

    The 2020 US Department of State International Religious Freedom Report notes that Protestant Christianity is growing in Vietnam. Despite some difficulties with bureaucracy, in-country sources told DFAT that efforts to evangelise and recruit new members are possible in large cities. DFAT understands that this is the case in relation to large events in which people might preach. Reports are mixed and DFAT understands that over time and in different parts of Vietnam there have been varying levels of tolerance from authorities towards evangelism.

    DFAT assesses that members of registered Protestant churches face a low risk of official discrimination or harassment in relation to their faith. Adherents of unregistered Protestant churches face a moderate risk of official discrimination if they are engaged in political expression, protests or criticism of the Government (in which case see Political Opinion (Actual or imputed)). In-country sources told DFAT that Protestants experience little societal discrimination, especially in cities. The situation is different in small rural communities, where societal discrimination might be more prevalent but would differ from community to community.

13. I discussed this country information with [Mrs A] at the hearing. I highlighted to her the assessments by DFAT that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from the Vietnamese government, and that members of registered Protestant churches face a low risk of official discrimination or harassment in relation to their faith.

14. In response to this country information [Mrs A] said she didn’t really know what to say. [Mrs A] gave an off point response related to her visa history in Australia and the reasons why she hadn’t previously succeeded in her applications for a partner visa. She said that if she had understood the law better at the time of these previous visa applications she would not be sitting here today. [Mrs A] stated that ‘they’ (which the Tribunal took to mean the Vietnamese government) always said that they had gender equality but that males were still held in a higher regard. [Mrs A] stated that overall the government put forward their ‘good side’ in relation to religion but that there was still a ‘dark side’ of their treatment of religion. [Mrs A] said she didn’t have much information on the recent situation in Vietnam relating to religious practice.

15. I note that in a statement previously provided to the Department, [Mrs A] stated that she practised ‘Baptist Christianity’ and had told the Tribunal as previously constituted that she was baptised at [Church 1] in Melbourne. I note also that information before the Tribunal (including an undated letter from Pastor [D] of [Church 1] which was submitted to the Department) suggests that [Mrs A] was a member of [Church 1], and was baptised in 2012.  When I asked her at the hearing about her current religious beliefs, [Mrs A] stated on multiple occasions that she was Protestant, that she followed the Protestant religion and that she attended a Protestant church. I do not consider these possible inconsistencies to be in any way adverse to [Mrs A]’s case, however I have considered the nature of her religious practice if she were to return to Vietnam and country information suggesting that Christian worshippers, including Protestants, are able to practice their faith with a low to moderate risk of official discrimination or harassment, regardless of whether their church is registered or not. I note that [Mrs A], when asked, stated that she has never been involved in political protests or political activities in Vietnam. There is no evidence before the Tribunal that suggests [Mrs A] plans to become involved in political activities in the future. I note also that [Mrs A] has not claimed to have ever held a leadership role in her church.

1. I discussed specifically with [Mrs A] the issue of her converting to Christianity in Australia, and how this may differ from those who convert to (or are born into) Christianity in Vietnam. [Mrs A] said she was not a Christian in Vietnam so she did not know whether this distinction would be relevant to her. She said that there may be some differences between people who were born into a Christian family and people like her who are not, but she did not know what they may be.

2. In response to this country information [Mrs A] stated that her family were Buddhist and that she didn’t know whether they would accept her or not. She then stated that her sister did accept her. I asked [Mrs A] why her sister would reject her in the future if she hadn’t done so already. [Mrs A] said that she had told her sister about her new religion, and the reasons why she had converted to it, but she said that she and her sister don’t really discuss religion when they speak.

3. I have considered the country information that [Mrs A] provided to the Tribunal (as previously constituted) that was submitted with her written statement that was received by the Tribunal on 16 May 2016. I have also considered information provided in an undated letter from Pastor [D] referred to above. While I note the pastor’s concerns outlined in the letter, I also note that this information is dated, brief and based on a couple of anecdotal examples the pastor was made aware of while on a trip to Vietnam. His conclusions relating [Mrs A] also appear to be highly speculative. I place much stronger weight on the very recent, and comprehensive, country information in the updated DFAT Country Information Report on Vietnam (referred to above) that was published on 22 January 2022 (that was discussed with [Mrs A] at the second hearing).

4. I accept that [Mrs A] is a genuine Christian convert from Buddhism, who converted to the Christian faith in Australia after having been raised a Buddhist in Vietnam. I accept that she regularly attends a Protestant church in Melbourne, and has done so for several years. I accept that she is likely to seek to continue to practice her Christian/Protestant faith if she were to return to Vietnam. I have given consideration to the various aspects of [Mrs A]’s Christian faith and how it impacts on her life, including the fact that she converted to Christianity while in Australia. As noted above, [Mrs A] explicitly stated that she had never been involved in any political activities in Vietnam, and did not indicate that she had any intention to become involved in politics or political activism. Given the information before me, I accept that [Mrs A] would not become involved in political activism (in general or in relation to her faith) if she were to return to Vietnam. I do not believe, given the information before me related to [Mrs A]’s Christian faith and her practice of it, that she would be imputed to hold anti-government or any particular political opinion as a result of her Christian faith or her practice of it, including as a result of her conversion to Christianity in Australia if she were to return to Vietnam in the foreseeable future.

5. Given the country information outlined above, and after considering the evidence before me relating to [Mrs A]’s religious beliefs and personal circumstances, I find that she does not face a real chance of suffering persecution involving serious harm on return to Vietnam as a consequence of her Christian/Protestant faith, her status as a single woman and/or mother, and/or a divorced (or twice divorced) woman who is also a Christian, and/or as a Christian convert who converted in Australia, or any combination of these factors. Based on the country information before me, I find that she does not face a real chance of suffering persecution involving serious harm on return to Vietnam for any reason related to her Christian/Protestant faith, from the Vietnamese Authorities, her family or anyone else. I therefore find that [Mrs A]’s fears of persecution on this basis are not well founded.

   Fear of harm from [Mrs A]’s family

6. I note that [Mrs A] has previously raised claims about her fears related to the treatment she may be subjected to by her family, for various reasons, if she were to return to Vietnam. I asked [Mrs A] at the hearing about any fears she held related to her family, if she were to return to Vietnam in the foreseeable future. [Mrs A] gave a somewhat vague and generalised response, stating that she held fears relating to her two brothers and that she didn’t ‘know what would happen’. When I pressed her to be more specific [Mrs A] stated that because the family was Buddhist she didn’t know how they would react to her. I asked [Mrs A] why she thought her brothers may react badly to her in relation to her religion or for any other reason. [Mrs A] stated words to the effect that she didn’t know what would happen in the future, and she wouldn’t know until she appeared in front of them what would happen. She said that her brothers could be hot tempered. She said that she didn’t know whether they had changed or not and stated that ‘it might happen, it might not happen’.

7. I discussed with [Mrs A] that when she separated from her first husband she had received support from her family at that time, and she agreed that she had. [Mrs A] stated that if she went back to Vietnam she would be ‘a big zero’ because she had no job and no house there. She said that people would likely criticise her and that protection for women like her in Vietnam was lacking. She said that because her second marriage had broken down, she feared that people would gossip about her and judge her, questioning what sort of person she was and how she ended up in this situation.

8. I accept that [Mrs A]’s family in Vietnam, particularly her brothers, may not be happy about her circumstances in Australia, including that she has converted to Christianity and has had two marriage breakdowns/is twice divorced/separated. I accept that [Mrs A]’s family are Buddhist and this may be part of the reason her brothers object to her status as a twice divorced woman who has converted to Christianity while in Australia. I accept that members of [Mrs A]’s family (including her brothers) may be disappointed in her for not meeting their expectations and for some of her life choices.

9. I note that the reasons [Mrs A] has put forward as to why her brothers (and/or family members more generally) may wish to harm her were vague and highly generalised. I consider her concerns are highly speculative based on previous conversations she had with her brothers and/or her knowledge of attitudes they may hold. Nonetheless I accept that her family has at times expressed its disapproval of her circumstances including the fact that she is twice divorced. However, I also note that the applicant told the Tribunal at the hearings that her family provided her with support when she had suffered her first marriage breakdown in Vietnam, and that she was still in regular close contact with her sister, who she said knew of her circumstances including in relation to her failed marriages and her religious beliefs. [Mrs A] also stated at the hearings that she, on occasion, did speak to one of her brothers when she would call her sister’s house and he was visiting.

10. For these reasons I find remote the chance [Mrs A] would be seriously harmed by her brothers or any other member of her family on return to Vietnam because they disapprove of her life choices and/or because she is a single woman and/or is twice divorced, or for reasons relating to her religion, and/or her conversion to Christianity, or any combination of these factors. Based on the information before me, I do not accept that [Mrs A] would not be offered some support by her family, including her sister, if she were to return to Vietnam in the foreseeable future. I therefore find that [Mrs A]’s fears of persecution on this basis are not well founded.

    Fear of harm relating to [Mrs A]’s status as a single woman and/or single mother and/or twice divorced woman who has been the victim of domestic violence

11. At the hearing I discussed with [Mrs A] specific fears of harm she may have in relation to her status as being a single woman and/or single mother and/or twice divorced woman who has been the victim of domestic violence, if she were to return to Vietnam in the foreseeable future. [Mrs A] stated that in Vietnam the government could not protect her safety. She said that if anything happened to her there she wouldn’t know where to go for help because Vietnam did not have high regard for women’s rights and status, like there was in Australia.

12. I have considered [Mrs A]’s concerns about returning to Vietnam as a single woman and/or single mother and/or twice divorced woman who has been the victim of domestic violence in light of the following country information about the status and treatment of women in Vietnam. The following information about the situation facing women in Vietnam drawn from the DFAT country information report[5] was discussed with [Mrs A] at the hearing:

    [5] DFAT, Country Information Report, Vietnam, 22 January 2022,  3.72–3.74 and 3.82–3.86.

    Discrimination against women is banned by the Vietnam Constitution (article 26). The UN Development Programme 2019 Gender Equality Index (the most recent) ranked Vietnam 65th (with 1 being the most equal) out of 162 countries. Australia ranked 25th. The International Labour Organization notes on its website that women form the majority of the working poor (particularly among the informal sector), earn less income and have fewer economic, employment and education resources than do men. In-country experts told DFAT there is a large gender pay gap that is made worse and more difficult to track because so many women work in the informal sector.

    Women’s labour participation rate is one of the highest in the world at 73 per cent in 2019, according to World Bank data (Australia’s female workforce participation rate was 61 per cent in the same year). DFAT has heard from sources that some women have been fired for becoming pregnant, which may be an illegal, but nonetheless practised, condition of employment. Women over 35 may also have difficulty finding employment and DFAT is aware that some women claim that they were terminated at that age for age-related reasons. In-country sources told DFAT women have been disproportionately affected by COVID 19. Given their high rate of participation in the informal sector and high rates of internal migration, many women lost jobs.

    Traditional views about family disadvantage women. Son preference continues, as in other Asian countries, where the traditional view is that sons and men, rather than daughters and women, carry on the family name and traditions. The problem of ‘missing girls’ and unnaturally high numbers of male births compared to female births result. Over time these preferences are lessening (but are still present) and women can now legally inherit assets.

    Vietnam has family planning policies that theoretically restrict the number of children a woman can have. DFAT understands family planning policies are not strictly enforced and it is common for families to have more than the allowed two children. Today, there are few, if any, practical consequences for having more than two children; children would not be denied healthcare or education and their parents would not be punished.

    …

    Single and divorced women

    Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.

    In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.

    Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame, but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.

    Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.

    DFAT assesses that single women and divorcees do not face official discrimination, but do face a moderate risk of societal discrimination.

13. A 2017 article in The Straits Times of Singapore titled ‘Vietnam’s working women opting to stay single’ stated:

    In its 2015 report on social inequality, the international development organisation Oxfam assessed that Vietnam was one of the countries with the highest female participation in the labour force across South-east Asia.

    Vietnam has been cited by the World Bank for being able to close gender gaps in education, access to healthcare, and many aspects of employment since the early 1990s.

    Last year, 72.2 per cent of Vietnamese working-age women were in the labour force compared to 81.7 per cent of men, the General Statistics Office said.

    Ms Nguyen Thi Dieu Hong, a former gender specialist at the United Nations Development Programme, said the number of single mothers has also been increasing in Hanoi, Ho Chi Minh City and Danang City.

    "The majority of them are highly educated and can earn a good living so they can finance themselves and their babies," she said.[6]

    [6] ‘Vietnam’s working women opting to stay single’, The Straits Times, 29 April 2017,

14. A 2017 article published by Xinhua News titled ‘Single women enjoying independent lives on the rise in Vietnam’s cities’ noted that the ‘right to motherhood of single women had been officially recognised by the Vietnamese government since 2003, by allowing them to receive sperm donations and have a baby through In vitro fertilization’. The article also noted: ‘In 2006 and 2007 respectively, a gender equality law and anti-domestic violence law were ratified by the country’s National Assembly, making Vietnam one in only a handful of countries in the world with both laws in place’.[7]

    [7] ‘Single women enjoying independent lives on the rise in Vietnam’s cities’, Xinhua News, 28 April 2017, >

    A 2017 article by Vietnam Culture notes that in Vietnam ‘traditional family values were accomplished by the fulfilment of traditional roles: the role of man and woman as parents’.[8] The same article reports that: ‘pregnancy out of wedlock is uncommon, and it is a grave disgrace to the family’.[9]

    [8]‘Vietnamese Traditional Family Values’, Vietnam Culture, 2017, CISEDB50AD225, p.1.

    [9] Ibid.

15. International Social Service (ISS) reported in 2015 that the family ‘is considered the fundamental unit of society’ and is of ‘cultural importance’.[10] They also reported that single and unmarried women risk ‘abandonment or relinquishment’.[11]

    [10]‘Qualitative research into the root causes of child abandonment and child relinquishment in Viet Nam’, International Social Service, 2015, CISEC96CF15036, p.10.

    [11] Ibid, p.86.

16. That same report by ISS indicates that stigmatisation is most apparent with ‘never married mothers’ but that societal perceptions were changing in the younger generation and ‘despite changing ideas on single mothers … [t]he ‘happy family norm is still very dominant’.[12] The report also states that stigma still exists but notes that the ‘meaning of single motherhood is rapidly changing in Viet Nam and [is] not seen any more as a very transgressive event’.[13]

    [12] Ibid, p.78.

    [13] Ibid, p.64.

17. The 2011 United Nations Committee on the Elimination of Discrimination Against Women report for Vietnam indicates that while a gender bias persists and the status and circumstances of women remain of concern, particularly in rural and remote areas and among the poor, the status of women within the family and in the wider society has improved, including their ability to access basic health and educational services, to be dealt with justly by the police and judiciary and to engage with government.[14] The same report details a campaign to support poor women, single women and women with disabilities through the provision of accommodation throughout the country and the establishment of a Centre for Women and Development which undertakes activities to support marginalised or vulnerable women, providing life skills and assisting integration into the community.

    [14] United Nations Committee on the Elimination of Discrimination against Women 2014, Consideration of reports submitted by States parties under article 18 of the Convention, seventh and eighth period reports of States parties due in 2011: Viet Nam, 13 December 2014.

18. In response to this country information, [Mrs A] stated words to the effect that she hoped that what she had heard at the hearing would be improved in the future but she said that she could still see that women in Vietnam have to work to earn their living every day. She said that during the COVID-19 pandemic in Vietnam the government said they would support poor families but her niece had told her that they had not yet received any such support. She said that information in the DFAT report only reflected the surface of Vietnam society and there was a dark side in that same society.

19. I note (and accept) that [Mrs A] was a victim of domestic violence in the context of her second marriage to an Australian man in Australia. I note that [Mrs A] has not claimed to fear harm directly related to domestic violence in Vietnam, but I have given consideration to the ways in which her past experience as a victim of domestic violence may be a compounding factor to other forms of harm she may fear or be subject to in Vietnam if she were to return there in the future.

20. I have carefully considered [Mrs A]’s concerns about returning to Vietnam as a single woman and/or single mother and/or twice divorced woman who has been the victim of domestic violence in light of country information about the status and treatment of women in Vietnam and with regard to [Mrs A]’s specific circumstances. I note that [Mrs A] was born and raised in Ho Chi Minh City and stated that she would likely live there again if she were to return to Vietnam. I acknowledge that it may be difficult for [Mrs A] to re-establish her life on return to Vietnam for a number of reasons, including the fact that she has lived in Australia for an extended period. However, although the above country information indicates that single women and/or divorcees can face a degree of ostracism and discrimination in Vietnam, I do not consider that this treatment would arise to the level of persecution involving serious harm. Country information indicates that single mothers and their children are legally legitimate under Vietnamese law. Although they may still face societal and family disapproval and some economic hardship, particularly in rural areas, it is unlikely that they would suffer systematic discrimination or harassment, and I do not consider that if this treatment occurred it would arise to the level of persecution involving serious harm. Nor is there any evidence that single women are denied employment in Vietnam.

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

   Scott Clarey
   Member

   
   
   

‘Vietnam: Circumstances under which an individual’s name may be removed from a household registration; whether an individual’s household registration is affected if he or she travels outside of Vietnam or is outside of Vietnam for an extended period of time; if so, timeframe for which the registration would be affected; reports of the authorities removing individuals from a household registry as a form of punishment’, Immigration and Refugee Board of Canada, Research Directorate, 24 February 2009, VNM103087.E, p.1.