1805008 (Refugee)

[2019] AATA 605

1805008 (Refugee) [2019] AATA 605 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805008

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Christopher Smolicz

DATE:18 March 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 18 March 2019 at 3:45pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – jurisdictional error – impact of departmental data breach on asylum claims – Catholic leader – religious activist – political dissident – failed asylum seeker– decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 36, 45AA, 65, 499
Migration Regulations 1994 (Cth) Schedule 2, r.2.08F

CASES
CFT17 v MIBP

[2018] FCCA 513

MIBP v SZSSJ [2016] HCA 29
MIBP v SZTZI [2016] HCA 29

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 a protection visa under s.65 of the Migration Act 1958 (the Act).[1]

   [1] 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.

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 11 June 2014 and the delegate refused to grant the visa on 29 April 2015. The applicant provided the Tribunal with a copy of the delegate’s decision.

3. On 27 October 2016 a differently constituted Tribunal (the first Tribunal) affirmed the decision not to grant the applicant a protection visa.[2]

   [2] AAT case file ref. 1506657

4. The applicant sought judicial review of the first Tribunal’s decision before the Federal Circuit Court of Australia (FCCA). [In] February 2018 the FCCA found that the first Tribunal had committed a jurisdictional error because it had overlooked an integer of the applicant’s claim. The FCCA quashed the first Tribunal’s decision and the matter has been remitted to the Tribunal for reconsideration.

5. The applicant appeared before the Tribunal on 13 March 2019 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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’).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Issue

12. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds because:

    ·     he is a practicing Catholic

    ·     of his leadership role in the Catholic Church in Vietnam

    ·     he has come to the adverse attention of the authorities in Vietnam

    ·     he would be perceived to be a religious activist and a political dissident

    ·     he is a failed asylum seeker

    ·     he may be charged under s.91 of the Vietnamese Penal Code

    ·     of a Departmental ‘data breach’

    ·     Vietnamese government officials were given permission to visit an immigration detention centre in which the applicant was detained.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

14. The applicant is [age]. He was born in Tinh Nghe An Province, Vietnam. He is married and as three children. The applicant departed Vietnam legally by plane and travelled to [Country 1] on his Vietnamese passport. He arrived in Australia [in] April 2013 travelling by boat as an Irregular Maritime Arrival (IMA). His wife and children have remained in Vietnam.

    Summary of substantive claims

15. The applicant is a practising Catholic from Tinh Nghe An province in Central Vietnam.

16. He attended religious training and in 2009 was chosen [to work with] families in his local area.

17. In July 2012 the applicant was involved in anti-government protests organised by his local parish in relation to the Con Cuong (Con Quong) parish protests. He took part in a prayer service where banners were displayed depicting anti-government slogans. The police objected and tried to remove the banners and a melee ensued. The applicant stood up to the police and demanded that they be allowed to display the banners. The police objected to his conduct and assaulted him. The applicant claims he tried to fight back because he was being assaulted by the police.

18. That evening the police attended at the church to look for him. They located the applicant and started beating him. The police took him to the local police station where he was detained and badly beaten. He was subsequently transferred to the District Police station where he was interrogated and tortured. He was told to sign a confession and he refused. He was assaulted by the police on two occasions because he refused to co-operate and sign the confession. After three days in custody he was able to escape from detention with the assistance of his brother who bribed a police guard to release him.

19. He fled to Ho Chi Minh City where he lived for eight months between July 2012 and March 2013. In March 2013 he left Vietnam traveling to [Country 1] on a validly issued Vietnamese passport.

20. After his departure to Ho Chi Minh City his wife received a police summons ([date] July 2012) requiring him to attend the police station. His wife ignored the summons. Two days later ([date] July 2012) she received a second summons. She attended the police station and asked the police why they were summonsing her husband if he was in custody. The police informed his wife that he had escaped and would be in a lot of trouble if they found him. The applicant provided copies of two untranslated documents in the Vietnamese language purporting to be the summons. At the hearing, with the assistance of the interpreter, the Tribunal was able to confirm that the summons’ were directed at the applicant requiring that he attend at the police station for questioning in relation to him being involved in a public disorder.

21. The police eventually became aware that that the applicant was in Australia and in immigration detention. The police continued to visit his wife up to mid-2014 (after his departure).

22. The applicant’s agent submitted that it is was plausible that the Vietnamese authorities in Vietnam knew the applicant was in detention in Australia because they had in fact visited the detention centre when the applicant was present, although they had not had direct contact with the applicant during this visit.

23. In support of his claims the applicant provided a letter dated [date] October 2013, signed by [number] former bishops of the diocese of Vinh in Vietnam [details deleted]. The letter is addressed to the Department of Immigration (the Department). The letter states that persons listed in an attachment were Catholic parishioners detained in Australia, and indicated that the parishioners had fled Vietnam due to the crackdown against Catholics by the Vietnamese authorities. The applicant’s name and boat ID are included in the attachment. The letter claims that those persons listed on the attachment have come to the attention of the authorities and their names have been put on a ‘black list’ of police records and are people who the Vietnamese government has asked the Australian government to return to Vietnam. The letter claims that the boat arrivals will be imprisoned if returned to Vietnam.

    Does the applicant have a well-founded fear of persecution in Vietnam?

24. The applicant fears that due to his leadership role in the Catholic Church and his previous non-adherence towards the authorities he would be perceived to be a religious activist and a political dissident. He fears he will be harmed because he has travelled to a Western country and claimed asylum and will be returning as a failed asylum seeker.

25. He fears if he returns to Vietnam he will be harmed because he is a Catholic, he stood up to the authorities after they attacked his church and also because he escaped imprisonment and refused to sign an admission that he committed a crime.

26. He fears the authorities will treat him with suspicion and subject him to serious harm because of his past conduct in Vietnam as a religious activist who has come to the attention of the authorities, combined with the fact that he fled Vietnam and claimed asylum in Australia. He fears he will be charged under s.91 of the Vietnamese Penal Code.[3]

    [3] Article 91: Fleeing abroad or defecting to stay overseas… Those who flee abroad or defect overseas with a view of opposing the people’s administration shall be sentenced to between three and twelve years imprisonment.

27. The Tribunal finds that the applicant is a practicing Catholic. The Tribunal had regard to the applicant’s evidence and accepts the he [held a leadership role] in his parish. At the hearing applicant was able to provide an explanation of his involvement with [his parish].  The Tribunal also finds that the applicant’s evidence about his leadership role was consistent with the evidence he provided in his Entry Interview held on 8 May 2013 soon after he arrived in Australia.

28. The Tribunal found the applicant’s evidence at the hearing about the anti-government protests regarding the Con Quong parish consistent with the country information and the evidence he provided in his Entry Interview.  Specifically, in his interview (Q19) the applicant referred to the persecution of Catholics by the Communist Party of Vietnam. The applicant referred to an incident which occurred in his local church two to three years before he arrived in Australia, as well as an incident in Con Quong one year earlier (2012). Country information confirms that demonstrations were held by Catholics in several areas of Vietnam in response to attacks on Catholics in Con Quong in mid-2012.[4]

    [4] CIS25872: US Commission on International Religious Freedom Annual Repot Vietnam 2013, 1 January 2014, CX)D38E8E19786; ‘Priests Protests Church Attacks’, Radio Free Asia, 20 July 2012.

29. A report published on United Kingdom-based daily on-line news service Independent Catholic News states:

    In a letter dated 10 July, 2012, sent to all cardinals and bishops in Vietnam, the diocese of Vinh reported that: “Recently, Catholics in the diocese of Vinh who reside in the North West region of the Nghe An Province have been repeatedly persecuted for their faith. The attack on Sunday 1 July was the peak of a series of harassments against Catholics in the region. On that day, the local government mobilised large groups of police, army, militiamen, and thugs to disturb, and to physically attack priests and the faithful. They seized the chapel of Con Coung [sic], desecrated the Eucharist Host, and smashed a statue of the Virgin Mary.”

    Asking for spiritual supports and solidarity from other dioceses in Vietnam, the diocese called for massive protests today to demand an end to the persecution that is “ongoing by the local government”, and the immediate halt to the ongoing propaganda and defamation campaign against Catholics in the state media.

    Dioceses across Vietnam have responded to the appeal with special prayers.

    Banners have been hung in front of all churches of the diocese of Vinh protesting at the government actions.[5]

    [5] An Dang J B 2012, ‗Vietnam: mass protests after government crackdown on Catholic Church‘, ICN Independent Catholic News website, 15 July < [accessed 10 December 2014] <CISNET BACIS CX0D38E8E19928>. Similarly reported in: An Dang J B ‗(with the collaboration of Br. Paul)‘ 2012, ‗Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom‘, AsiaNews.it, 16 July < <CISNET BACIS CX0D38E8E19941>. 

30. The delegate was concerned that the applicant only raised the claim regarding his interaction with the police, arrest and detention after several months in Australia. Specifically the delegate put to the applicant that when he was asked during his Entry Interview why he had left Vietnam, he stated nothing had happened to him in Vietnam. He also stated that he continued to live at his home address in Nghe An up until his departure for Australia. The delegate noted that this information is in contrast with the applicant’s protection visa application.

31. The Tribunal put these inconsistencies to the applicant for comment at the hearing. The applicant claims that he did not understand the legal process in Australia at the time of the Entry Interview, and was fearful of what would happen if he disclosed that he was wanted by the police in Vietnam.

32. The Tribunal is mindful that the Entry Interview is not an application for a protection visa. The Tribunal is also mindful that the applicant’s statement needs to be considered in the context of a number of factors, including his concerns his information may have been disclosed to the Vietnamese authorities, lack of legal representation, the language barrier and distrust of authorities.

33. The Tribunal notes that during the Entry Interview the applicant provided evidence about the persecution his family faced in Vietnam due to their religious beliefs. He referred to his role as secretary in his local church and the repression of Catholics by the Communist authorities in his parish and province. The Tribunal finds this evidence is consistent with his claim that he was a leader in his local church.

34. In the circumstances, the Tribunal is prepared to accept that the applicant had an active role in his church [details deleted] that took part in anti-government protest activity in July 2012 in support of Con Quong parish. The Tribunal also accepts that he was involved in an altercation with the police, was arrested and taken into custody by the police, interrogated and beaten on a number of occasions. The Tribunal also accepts the applicant was able to escape with the assistance of his brother and went into hiding before he fled Vietnam and travelled to Australia.

35. The Tribunal questioned the applicant about the Vietnamese police summonses at the hearing and referred the applicant to country information regarding the prevalence of document fraud in Vietnam.  

36. The applicant claims the summonses were sent by the local authorities in his town. The documents were posted to him by his wife and he did not have the originals. He said his wife was able to obtain copies of the documents. The Tribunal finds it surprising that the police would issue summonses addressed to the applicant in circumstances where they know that he has escaped from custody. The Tribunal also notes that there is no supporting evidence from the applicant’s wife regarding the providence of the summons or how they came into her possession. In the circumstances the Tribunal has placed little weight on these documents in support of the applicant’s claims.

37. Having regard to the findings above, namely that the applicant was a leader in his local Catholic parish, that he took part in a demonstration, was arrested, detained and escaped from custody, the Tribunal is prepared to accept that his family home was under surveillance by the local police.

38. The Tribunal questioned the applicant about the letter dated [date] October 2013. [Details deleted]. He said that he personally knew two of the bishops and that [Reverend 1] was aware of his religious activity and the problems he faced with the authorities in Vietnam.

39. The Tribunal found the content of the letter general and of limited assistance.  The Tribunal does however accept that the letter supports the applicant’s claims that he was a religious activist in his local parish and has come to the attention of the authorities in Vietnam.

40. In conclusion the Tribunal is prepared to accept that the applicant attended a gathering in July 2012 at his local church to commemorate attacks against Catholics in Con Quong and that he came to the attention of the police at the gathering because of his religious activism.

41. The applicant gave evidence that since he has departed Vietnam the authorities have continued to watch is home and have attended at his home up until mid-2014. The applicant said that the authorities told his wife they knew he was in Australia in immigration detention. He fears that if he returns to Vietnam the authorities will imprison him and question him about what information he disclosed to the Australian government in support of his protection claims.

42. In support of the claim that the Vietnamese authorities have become aware of his detention in Australia the applicant relies on the following events. The first being a visit by Vietnamese officials to detention centres in Australia in August 2013 and the second being a privacy breach in February 2014.

1. The delegate had regard to available information and accepted that Vietnamese officials visited Vietnamese detainees being held in immigration detention in Australia around August 2013. The delegate noted however that there was no evidence that the applicant met with the Vietnamese officials or that his personal information was provided to the officials.

2. At the hearing the applicant referred to the Vietnamese officials as ‘A18’. In Vietnam the People’s Security Force (Section A18) is the Office of Controlling Exit and Entry in Vietnam. Section A18 operates within the Ministry of Public Security and the Vietnamese community widely regard them as the security police or secret police.

3. The Tribunal has had regard to open source information, which discloses that the former Minister of Immigration, Tony Burke, in a letter dated 3 September 2013 said that ‘at no time are Vietnamese officials given access to asylum seekers from Vietnam while it is being determined whether or not they are refugees’. Vietnamese immigration officials visited detention centers in Western Australia (WA) (Yongah Hill), Darwin and Sydney to assist DIAC ‘with identity/nationality verification’ of people who had ‘not raised any claims that relate to the refugees convention’ and ‘had no immigration matters ongoing’, and so were ‘required to go back to their home country’ Vietnam; ‘questions were strictly limited to only those necessary to establish identity and the clients’ right of re-entry to Vietnam’ and ‘bilingual Australian immigration officials’ were present.[6]

   [6] Transcribed (and hyperlink to scan of) 29 August 2013 letter from VCA national President to Australian Minister for Immigration, Multicultural Affairs and Citizenship and hyperlink to scan (at of undated letter of reply from Minister and hyperlink to scan of letter on same topic from Chris Hayes MP Federal Member for Fowler Chief Government Whip to ‘Committee Members’: ‘CĐNVTD/LBÚC gửi thư đến Bộ trưởng Di trú về vấn đề của những người Việt xin tam trú tại Úc Châu’ [‘VCA/LB sent a letter to the Minister of Immigration on the issue of the Vietnamese people applying for residence in Australia’] 2013, Người Việt Ly Hương - Úc Châu [Ly Huong Vietnamese People - Australia] website, 4 September < CĐNVTD/LBÚC is Cộng Đồng Người Việt Tự Do Úc Châu LB (Vietnamese Community in Australia LB). The letters to and from the Minister summarised in Vietnamese: Nguyễn Quang Duy 2013, ‘Thuyền Nhân Trong Cuộc Bầu Cử Tuần Này’ [‘Boat People in Election Week’], Việt Nam Văn Hiến website, 5 September < An Immigration Department spokesman was reported as saying the same things as the Minister on: Guest A 2013, [Transcript of radio broadcast] ‘Vietnamese accuse Australia of breaching UN obligations’, ABC News (PM [Radio National]) website, 30 August < <CISNET BACIS CXC28129413582>

4. The applicant said that he did not meet with any Vietnamese officials while he was in immigration detention. The applicant said that the local Vietnamese community in [City 1] were alerted to the fact that Vietnamese officials were visiting the detention centre and as a consequence the visits stopped. The Tribunal also notes that the Vietnamese officials visited the centre before the applicant made his application for a protection visa.

5. In the circumstances the Tribunal finds it is mere speculation to suggest that the authorities in Vietnam knew the applicant was in immigration detention in Australia because Vietnamese immigration officials had visited detention centres in Australia in August 2013. As a consequence the Tribunal is not satisfied that that the applicant’s identity was disclosed to the Vietnamese authorities.

6. It is acknowledged by the Department 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. 

7. The Department had advised that the information leaked could have included identities of the people in detention such as names, date of birth, nationality, gender and details about when and why an applicant was detained.[7] There was no indication the data breach released any applicant’s protection claims. 

   [7] Oliver Laughland, Paul Farrell and Asher Wolf, ‘Immigration Department data lapse reveals asylum seekers’ personal details’, The Guardian, 19 February 2014, downloaded from feb/19/asylum-seekers-identities-revealed-in-immigration-department-data-lapse/print, accessed 19 February 2014; Emma Griffiths, ‘Immigration Minister Scott Morrison demands answers from his department after it accidentally published asylum seeker personal details on website’, ABC, 19 February 2014, downloaded from 5269464.

8. The Department has also advised that the information released in the data breach was only available for a short period of time before it was removed.  The Tribunal has no knowledge of whether Vietnamese individuals in Australia accessed the information.  According to a report in the Guardian newspaper, citing KPMG as its source,[8] the information was not downloaded in Vietnam.[9] 

   [8] KPMG were commissioned by the Department to independently review and report on the breach. KPMG 2014, Management initiated review. Privacy breach - Data management. Abridged Report. Department of Immigration and Border Protection, 20 May, Department of Immigration and Border Protection website < and

9. The Tribunal has had regard to the High Court decision in MIBP v SZTZI which considered the impact of the data breach on asylum claims. The High Court held that in the circumstance of the data breach assuming a foreign government had accessed the information:

   was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department's website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time. Attempting to make a finding about precisely who had obtained access to the personal information of any one of them and when, might be expected to have been hopeless endeavour.[10]

   [10] MIBP v SZSSJ; MIBP v SZTZI [2016] HCA 29 (27 July 2016) at 90

10. Having considered the circumstances of the data breach and the High Court authority referred to above, the Tribunal finds that it is possible that the Vietnamese authorities may have become aware of the applicant’s personal information and the fact that he was in immigration detention and was an irregular maritime arrival.

11. As a consequence the Tribunal, as was the delegate, is prepared to accept that the Vietnamese authorities commenced to make enquiries about the applicant and spoke to his wife in April 2014.

12. The Tribunal finds, however, that there was nothing in the data breach that would not be known to the Vietnamese authorities should the applicant be removed to Vietnam in the future.  That is, he was detained because he arrived in Australia without a visa, and this would be obvious due to his method of arrival.

13. The Tribunal also acknowledges that if the applicant returns to Vietnam in the reasonably foreseeable future, as a failed asylum seeker, the Vietnamese authorities may well infer the applicant was in Australia seeking protection, even though this information was not released in the data breach.  The Tribunal has therefore considered relevant country information in respect of the treatment of failed asylum seekers in Vietnam.

14. In assessing this aspect of the applicant’s claims the Tribunal finds that he is not a people smuggler and he departed Vietnam legally using a Vietnamese passport.

15. The Tribunal has regard to following information prepared by DFAT regarding the treatment of failed asylum seekers by the authorities in Vietnam:

    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’.

    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.

    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.

16. DFAT’s most recent country information report also provides the following information about the conditions for returnees:

    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.

    DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.[11]

    [11] DFAT Country Information Report Vietnam 21 June 2017 [5.21]

17. Against this background the Tribunal must next consider the applicant’s profile as a religious activist who has previously come to the attention of the authorities, escaped from custody and would be returning to Vietnam as a failed asylum seeker.

18. As detailed above the Tribunal accepts that the authorities visited the applicant’s wife’s home in about April 2014. The evidence is relevant because it illustrates that the Vietnamese police were still seeking the applicant well after his departure from Vietnam. The Tribunal finds that this is a relevant consideration because it demonstrates that the applicant continued to be a person of interest to the authorities after he departed Vietnam in March 2013. The FCCA found that the first Tribunal fell into jurisdictional error because it failed to consider this evidence.[12]

    [12] CFT17 v MIBP [2018] FCCA 513 at [12] to [13]

19. The Tribunal questioned the applicant about his religious activity since he arrived in Australia. The applicant said that he has continued to attend a Catholic church in Australia. The Tribunal was provided with a reference letter from the applicant’s Parish priest in support of this evidence. The applicant said that if he were to return to Vietnam he would continue his religious practice and serve his local parish as secretary. He said that he would not seek to engage in anti-government conduct but because of his religious beliefs and role in the church it would be inevitable that he would come into conflict with the authorities in Vietnam. 

20. In assessing the applicant’s claims the Tribunal has considered country information regarding religious freedom in Vietnam and the ability of Catholics to freely practice their religion in the applicant’s home province.

21. DFAT provides the following information regarding Catholics in Vietnam:

    Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.

    DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV [Communist Part of Vietnam] and its policies.[13]

    [13] DFAT Country Information Report Vietnam 21 June 2017 [3.9 – 3.10]

22. The Tribunal finds that the applicant departed Vietnam lawfully in March 2013, using his own passport. The Tribunal finds this information also appears inconsistent with the applicant’s claim he was a person of interest to the Vietnamese authorities, given country information indicates that Vietnamese authorities are known to confiscate passports and prohibit international travel for persons viewed as dissidents.[14]

    [14] OGCOD145417: Country Information Report Vietnam 2013, UK Home Office, 9 August 2013

23. The Tribunal notes however that the applicant was already in possession of a Vietnamese passport before he departed Vietnam. It is also apparent that he was not charged with any offence at the time he escaped from detention. In the circumstances it is a possible that he did not hold a profile of a dissident which would have warranted placing his name on a watch list so as to prevent him from departing Vietnam in March 2013. What is concerning however, is that since the applicant has departed Vietnam his home has been under surveillance and the authorities have attended at his family home.

24. He fears the authorities will treat him with suspicion and subject him to serious harm because of his past conduct in Vietnam as a religious activist who has come to the attention of the authorities, combined with the fact that he fled Vietnam and claimed asylum in Australia.

25. The Tribunal accepts the applicant is a leader in his local church who has come to the attention of the local authorities. Since coming to Australia he has once again come to the attention of the authorities in Vietnam. The Tribunal accepts that although the applicant does not seek to directly engage in anti-government conduct there is a real chance that because of his religious beliefs and role in the church he would come into conflict with the authorities in Vietnam. Country information referred to in the delegate’s decision indicates that some Catholics in Vietnam are subjected to harassment, imprisonment and physical assault, and that a number of incidents have occurred in the applicant’s home province of Nghe An. In the circumstances, having regard to the applicant’s profile, the Tribunal is satisfied that there is therefore a real chance he would be perceived as a person who is a potential threat to authority or the interests of the Communist Party of Vietnam and its policies.

26. Having considered the applicant’s profile the Tribunal is satisfied that there is a real chance that the authorities will treat him with suspicion and subject him to serious harm because of his past conduct in Vietnam as a religious activist who has come to the attention of the authorities combined with the fact that he fled Vietnam and claimed asylum in Australia. The Tribunal finds that the applicant’s fear of harm because of his religion and imputed political opinion is well-founded.

27. As the applicant fears harm from the authorities the Tribunal finds that the applicant would not be able to avoid the persecution by relocating to another part of Vietnam.  

28. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

29. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Christopher Smolicz

    
    

    Member