1807073 (Refugee)

1807073 (Refugee) [2023] AATA 2073 (16 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807073
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mary Sheargold
DATE:16 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2023 at 12:27pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – discrimination and persecution – opposition to communist Vietnamese government – participated in demonstration in 2007 against Vietnamese Government’s attempts to reclaim land in Vinh Due – arrest warrants – credibility issues – lack of evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 2 September 2016. He has lived in Australia since [December] 2008, having arrived as the holder of a Subclass 573 student visa. He travelled to Vietnam for short periods in 2010, 2013 and 2014, and last arrived in Australia [in] February 2014. The delegate notes that he applied for a further student visa in 2015, as well as a combined partner visa, both of which were refused. On 12 December 2017, he attended his scheduled Protection visa interview with the Department.
On 24 June 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing in July 2022. On 7 July 2022, the applicant returned the Tribunal’s Response to Hearing Invitation form and checked the box advising the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.
A Tribunal officer called the applicant on 8 July 2022 to confirm his intention not to participate in a hearing in relation to his application, and followed up this conversation with a letter dated 8 July 2022. On 15 July 2022, the officer sent a further letter confirming that the hearing had been cancelled and the Tribunal would proceed to make a decision. This matter has therefore been determined on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Vietnam most recently revised and published on 11 January 2022.
CONSIDERATION OF Claims and evidence
Receiving country
The applicant’s Vietnamese nationality is not in issue. He has provided the Department and the Tribunal with a copy of his passport issued by the Immigration Department, Socialist Republic of Vietnam, that was valid from [2008] until [2018]. The Department accepted his claimed nationality and identity shown in his passport, as does the Tribunal. The Tribunal finds that Vietnam is the applicant’s receiving country for the purposes of assessing his protection claims.
Relevant background, claims and evidence
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The mere fact that a person claims fear of persecution for a particular reason does not in itself establish the genuineness of that asserted fear. While an onus of proof is not imposed on an applicant in administrative inquiries and decision making, an applicant must nonetheless supply all the relevant facts surrounding their individual case, in as much detail as is necessary, to enable the decision maker to establish the relevant facts. A decision maker is not required to make an applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all allegations made by an applicant: MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
In assessing the application in circumstances where the applicant has declined the Tribunal’s invitation to attend a hearing to provide evidence and make arguments in support of his application, the Tribunal has had regard to all the documents the applicant has provided to the Tribunal at the time the application was lodged on 16 March 2018. He provided the Tribunal with copies of the following documents:
·the delegate’s decision and the notification letter from the Department, dated 18 February 2018;
·his Vietnamese passport, valid from [2008] to [2018];
·his [Drivers] Licence issued by the State of Victoria, valid until [November] 2019;
·his parents’ marriage certificate and family book, duly translated by an accredited translator;
·a letter of support from Father [A], parish priest at [named] parish in [Town 1], NSW;
·a letter of appreciation from Father [B], Vinh Duc parish, dated [February] 2014, duly translated by an accredited translator; and
·copies of 2 summonses from Colonel [C] of [Town 1], Dak Lak, for the applicant to be interrogated ‘about some matters relating to your uncooperative words and actions against the government,’ dated [December] 2013 and [January] 2014.
The applicant’s file indicates he made no contact with the Tribunal from the time his application was made until the time the Tribunal invited him to attend a hearing. The total period of time between these two events is 4 years and 3 months. Given the lack of detail in the documents provided by the applicant to the Tribunal, the Tribunal has considered the claims made in the applicant’s statement that he attached to his Form 866 in August 2016.
For completeness, the Tribunal will reproduce the wording of the applicant’s statement outlining his reasons for seeking protection:
I write this Application to apply for asylum in the peaceful and beautiful Australia.
Since I’ve been to school, I was always taught that our country is a country of "Single establishment, freedom and happiness " and that was the slogan in school, in every place work as well as in each letter, using the form of life. But as i gradually grew older and wiser I began to see and become more increasingly aware of the corruption in my country. The way my government acts and treats people, abuses of the "Independence, freedom and happiness" of the people. I am Catholic, I was born and raised in a small [village]. Catholics honour but we seem to have never been left alone by our government. The occupation of Catholic Land (Churches) in many other Catholic villages is known well by our own province.
In early 2007, I witnessed our government Claim the lands of Catholic in Vinh Due, all of which have our relatives buried there. And because of this I stood against them I was beaten brutally. Then after this we wrote the petition for help to higher level ranking officials to forward to the equality, as the main charity what I learned from the school. Besides this, we also demonstrated to the press and this gave us a voice in society. After this our government began to pressure us constantly. Threats to our families were made, threats to us, and in some serious cases we were beaten. I then rediscovered the freedom of religion and happiness in this peaceful land.
I believe that those who live in the parish of suffering and discrimination, should always hope for a better place to live and Catholics to work
After I finished high school, my parents enrolled me a [profession] in Vietnam but in cooperation with Australia. When I was eligible, my parents applied for me to study in Australia. For me to fulfil the dreams and hopes as well as my search for a truly free place to study and live. After nearly eight years of living in Australia, I feel so lucky to be living in a wonderful country, about everything. Contrary to my previous life in Vietnam.
Just recently I have witnessed countless more sadness, while [deleted] Communist government was covering up abuses China. People in Vietnam have suffered the consequences caused by the Government. The main weakness of our country is the Vietnam Communist Party authorities, when mass death of fish in the sea, authorities remained silent because they were taking bribes from companies Formosa, Formosa is a factory direct cause pollution caused mass death. And the government has made the media largely ignored the pain of the people. I was indignant and hated by Communist Vietnam.
So I pray this letter to the Australian government allows my country to be refugees accidents where this beautiful country. I promise to strictly abide by the laws of Australians and contributing labour to build Australia Larger and to grow more beautiful.
Based on this statement, the applicant’s main claim for protection relates to the discrimination and persecution he claims to have experienced in Vietnam because of his Catholic faith and because of his political opinion, that is, being opposed to the communist Vietnamese government.
The documentary primary evidence available to the Tribunal at review is the letter of appreciation the applicant has supplied from Father [B] of the Vinh Duc parish in Dak Lak, where the applicant is commended for his service to the church and his efforts in defending the church’s land from the government, as well as the copies of summonses from local authorities to question the applicant regarding his “uncooperative words and actions against the government.”
The Tribunal notes that the delegate’s interview yielded additional information regarding the applicant’s claims, including that:
·he had participated in protests in Vietnam in 2013 and was labelled a rebel by the Vietnamese Government;
·on [date] December 2013, he was issued with a warrant by Vietnamese police and was held in a police station for 12 hours,
·on [date] January 2014, he was issued with a further warrant by the Vietnamese police; and
·he was followed by people in Vietnam after being issued with the further warrant.
On 28 December 2017, at the delegate’s invitation, the applicant’s representative provided the delegate with the following additional information in support of his claims:
·a copy of the letter from Fr. [A] dated [date] December 2017;
·an uncertified copy of his Catholic Family Book (4 pages and cover) with a NAATI certified English translation;
·an uncertified copy of a letter of appreciation addressed to the applicant and signed by Fr. [B] on [date] February 2014 with a NAATI certified English translation; and
·uncertified copies of summonses dated [date] December 2013 and [date] January 2014 signed by Colonel [C], with NAATI certified English translations.
The Tribunal notes that the delegate afforded little weight to the latter 3 documents because they were not certified, and because document fraud is common in Vietnam. The delegate concluded that the applicant was not Catholic; that he did not protest against the Vietnamese Government in 2007 and 2013; that he does not hold an adverse political profile; and that he is not of interest to the Vietnamese Government.
There is no further evidence available at review to further substantiate the applicant’s claims. The Tribunal is therefore dependent on the evidence outlined above to make its findings.
Based on the evidence available at review, the Tribunal is prepared to accept that the applicant was raised in the Catholic faith, and that he participated in a demonstration in 2007 against the Vietnamese Government’s attempts to reclaim land in Vinh Due where his relatives were buried. In particular, the Tribunal notes that in addition to the uncertified copy of his Catholic family book, the applicant has provided a reference from an Australian-Vietnamese priest, Fr. [A], the parish priest at [named] Catholic Parish in [Town 1], [New] South Wales. Fr [A] attests to personal knowledge of the applicant’s family in Vietnam, and that he reconnected with the applicant when he was in Melbourne in 2009. He states that the applicant is “of strong Catholic faith”. The Tribunal notes that at the time this decision is made, Fr. [A] is still the parish priest at this church.

The Tribunal is also prepared to give the applicant the benefit of the doubt regarding his claim to have participated in demonstrations in 2013 that led to being summonsed by local police. While it is true that the applicant did not provide certified copies of summonses from 2013 and 2014 to the Department, and while it is true that document fraud does occur in Vietnam, in the absence of any clear and compelling reason to assume these documents are not genuine, the Tribunal prefers to find that these documents are genuine, but simply uncertified.
Further, the Tribunal is presented with no compelling reason to believe that the reference letter from Fr [B], has been fabricated. The Tribunal is prepared to accept the applicant’s claims that he participated in 2 demonstrations against the Vietnamese Government and that he was invited to be questioned by a local police officer in his family’s home town in Dak Lak in 2013, after he had participated in the second demonstration.
Well-founded fear of persecution in the future
However, despite the Tribunal’s acceptance of the applicant’s claims to be a Catholic who has participated in demonstrations against the Vietnamese Government in the past, there is very little evidence available to the Tribunal at review on which to be able to base a finding that the applicant has a well-founded fear of persecution in the future if he is returned to Vietnam. The applicant’s claim centres on his membership of a particular religious group, the Catholic faith, as well as a less clearly articulated claim regarding his political opinion.
The most recent DFAT Country Information Report about religion in Vietnam explains that:
[3.13]   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. (emphasis added)
[3.14]   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.
[3.15]   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.
[3.16]   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.
[3.17]   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. (emphasis added)
The newest Law on Belief and Religion came into effect in the time since the applicant made his application to the Tribunal. The Tribunal notes that Catholicism has been recognised in Vietnam since the establishment of the unified Socialist Republic. In terms of whether the applicant’s position as a Catholic generally invites a well-founded fear of persecution, DFAT’s Country Information Report negates such an inference. It states:
[3.22]   While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.
[3.23]   The Catholic Church is, by definition, united and can deal with the Government at a national level across Vietnam. Provincial authorities might also have relationships at the diocesan level; sometimes local relationships are better than the national level relationship. In general, relationships between the Government and the Church are cordial. Individual parishes need to be registered.
[3.24]   Most Catholics worship in churches as part of parishes. Some communities, particularly outside of cities, worship in homes of believers. These activities may be limited by authorities in some cases, but this differs from place to place. In general, Catholics in cities worship freely in churches.
…
[3.26]   There have been Catholic political movements that attract negative attention from authorities. The distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.
…
[3.28]   Land disputes have been reported, including the seizure of Catholic land and buildings. A particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished and the land sold. Appropriated land might be sold to the private sector for development. Conversely, much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades. That process continues, including during the COVID-19 pandemic, reportedly in return for cooperation of the Church with authorities during the pandemic.
[3.29]   Church officials do not have official relationships with the Catholic Church overseas (except perhaps the Vatican), but in-country sources told DFAT that individual Catholics or communities have relationships with the diaspora overseas, including in Australia, and these relationships are generally unhindered.
[3.30]   In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination.
[3.31]   DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.
The applicant has not provided any documentary evidence supporting his claim that the particular parish he has protested in support of is in fact the subject of any persecution by the Vietnamese government. There is no corroboration of his claim that the Vietnamese Government sought to seize the church lands where his ancestors were buried.
Further, even if that type of evidence had been provided, it is difficult to reconcile that the applicant could not relocate to another part of Vietnam where he would not be known to the local authorities. The applicant has given no indication regarding the regularity of his church attendance, his adherence to the church’s teachings or his desire to continue to receive sacraments in the future, or his appetite to continue to advocate for the parish where he grew up, or if such a need still exists. There is no evidence that the applicant has ever had difficulty travelling out of or into Vietnam in the past, and no evidence to suggest that he is a person of particular interest to the Vietnamese Government based on his Catholic religion. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Vietnam due to his religious beliefs as a Catholic.
In respect of his fear of persecution because of his political opinion, the Tribunal is left with the applicant’s statement provided in his original application form for this visa, and the delegate’s summary of the interview conducted with him, to conclude that the applicant’s political opinion relates more to a contempt for the manner in which the Vietnamese Government treats Catholic people rather than a refutation of the Communist ideology underpinning the authority of the Vietnamese Government per se.
The Tribunal has considered the DFAT Country Information Report about the treatment of political activists and dissidents in Vietnam. Relevantly, DFAT explains:
[3.49]   Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated.
[3.52]   The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information…opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
[3.55]   Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
[3.56]   Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
[3.57]   It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
The Tribunal accepts that the applicant was invited to attend interviews with local authorities in 2013 and 2014 following his involvement in a demonstration. The first summons provided to the Tribunal states that the applicant was invited to “be interrogated about some matters relating to your uncooperative words and actions against the government” and no further context is provided. The Tribunal can only surmise from this summons that it is issued by a local authority, the police of [Town 1]. The second summons is presented in identical language and gives no further context regarding the reasons the local authorities wished to question the applicant.
There is no evidence before the Tribunal to indicate that the applicant suffered any harm or persecution as a result of being summonsed before local police. The Tribunal notes he claims he was followed after the second summons was issued, but no corroboration has been provided, nor has any articulation of his concerns as to what may happen should be returned been given. The applicant was able to travel freely to Australia having not complied with this second summons.
As DFAT’s report suggests, it is difficult to make an overall assessment of risks to an activist given the lack of clear patterns indicating who may be arrested or when. Nonetheless, there is no evidence available to support a contention that the Vietnamese Government at any level seeks to arrest and detain the applicant or otherwise commute against him ‘significant harm’ as defined in s.36(2A) of the Act. The Tribunal notes he claims he was beaten by the Vietnamese Government at the 2007 demonstration in Vinh Duc, but also notes he told the delegate that he was able to depart Vietnam lawfully in each of 2008, 2010, 2013, and 2014 using his valid Vietnamese passport. There is no evidence to suggest that the applicant was detained at any time.
There is no evidence available at review to suggest that the applicant is active against the Vietnamese Government through social media or any other means while he has been residing in Australia. Because the applicant has elected not to engage with the review process but has invited the Tribunal to make its decision based on the information available to it without any additional evidence being provided, it is difficult for the Tribunal to qualify or quantify the applicant’s current level of fear of serious harm if he is returned to Vietnam. Relying on the evidence provided by the applicant and the country information outlined above, the Tribunal is satisfied that, having considered the information available regarding the treatment of Catholics in Vietnam and the risks to low-level political activists, the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason raised in his application or arising on the facts if he was returned to Vietnam.
Therefore, I find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a) of the Act.
The complementary protection ground
For the same reasons that I have found there is no real chance of serious harm, I find that the ‘real risk’ element of the test in s.36(2)(aa) of the Act has not been met.[1] I find that there are no substantial grounds before me for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk he will suffer significant harm: s.36(2)(aa).
[1] see, e.g., MIAC v SZQRB [2013] FCAFC 33 at [245]-[246] (Lander and Gordon JJ)
Member of the same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mary Sheargold
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2073

16 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice