1810047 (Refugee)

1810047 (Refugee) [2018] AATA 4313 (14 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810047
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Nicole Burns
DATE:14 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 August 2018 at 11:37am
CATCHWORDS
Refugee – protection Visa –Vietnam – religion – catholic – membership of a particular social group – people who has exited the country unlawfully – failed asylum seeker – applicant failed to attend departmental interview – political opinion – anti-government political opinion – participation in anti-China protests – criminal record in Australia –inconsistent evidence provided – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 45AA, 65, 91, 197A, 499
Migration Regulations 1994, r.2.08F, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 17 July 2013 and the delegate refused to grant the visa on 15 October 2015.
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.
The applicant appeared (via video [link]) before the Tribunal on 14 June 2018 and 3 July 2018 to give evidence and present arguments. 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 by his registered migration agent. She attended the hearings.
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 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality and background
The applicant arrived in Australia by boat on 8 April 2013 without any identity documents. Subsequently he produced to the Department copies of his Vietnamese national identity card (NIC), family registration booklet (ho khau) and his marriage certificate, however due to their poor quality the delegate placed no weight on them. The delegate accepted the applicant was Vietnamese but was not satisfied as to the applicant’s identity and claimed date of birth. On review the applicant has submitted (clearer) copies of his NIC, ho khau and provided the originals at hearing. On this basis the Tribunal accepts he is a national of Vietnam and has assessed his protection claims accordingly.
Claims and evidence
The applicant is [an age] year old married man from Nghe An province in north central Vietnam who claims to fear persecution in his home country on the basis of his anti-government political opinion and Catholic religion.
The applicant set out his initial protection claims in a typed statement that accompanied his visa application dated 11 July 2013, claiming he faces persecution in Vietnam for the following reasons:
·He left Vietnam because he feared arrest because of his involvement in anti-government protests and because he is a Catholic in a communist country.
·On or about 30 September 2010 he joined a friend – [Mr A] – to a trip to Hanoi. There, [in] October 2010, they attended a protest in Hanoi against the government’s decision to relinquish Hoang Sa Island to China and for religious freedom. Police arrived and started hitting protesters, including the applicant. Many people were arrested.
·The applicant escaped and returned to his home village on that day. The Vietnamese government announced on the radio and television that anyone involved in the protest would be located and detained.
·[Mr A] was held in custody and the applicant is afraid his information will be released to the authorities.
·The applicant did not stay home for too long and made sure he did not have any pattern of movements. He organised to return to [Country 1].
·He fears he will be arrested at the airport and detained if he returns to Vietnam because of his involvement against the government in October 2010; the subsequent threats from the government over the radio and television; his membership of a particular social group of someone who has exited the country unlawfully; and practice of his Christian faith.
The applicant did not attend an interview with the delegate to discuss his claims, despite being invited to do so, because his then migration agent was unable to locate him. As a result the delegate was unable to be satisfied of the applicant’s claims and rejected them.
On review, the applicant provided a statutory declaration to the Tribunal dated 12 June 2018 in which he expands upon his claims, changes some aspects of his claims, and provides new claims, summarised as follows:
·The applicant participated in several demonstrations against China’s acquisition (and the Vietnamese government’s acquiescence) of Hoang Sa (Parcel) Islands and the Vietnamese government’s ill-treatment of Catholics which were held every Sunday from [June] 2011 to [August] 2011 in Hanoi.
·The applicant was arrested twice: once at a demonstration he attended [in] June 2011 and again on [another date] June 2011. Both times he was interrogated, beaten then released after a few hours because of insufficient evidence.
·The applicant’s wife’s cousin – [Mr B] – was also arrested twice ([in] July 2011 in Hanoi and [in] August 2011). He was member of the Viet Than Party who opposes the current government. Whilst the applicant was not a member, he ‘partially supported the ideals of this party, given they felt the same way about the Vietnamese government’s behaviour towards situations such as the Parcel Islands.’
·The applicant went into hiding [in] August 2011 after [Mr B] was arrested until he left Vietnam permanently in 2013. He stayed with his aunt who lived [about] 10 kilometres away from their [home]. He returned to see his family [in] December 2012 and the authorities attended his house: the applicant escaped through the back door.
·The Vietnamese authorities have persistently attempted to locate the applicant, by visiting his home and harassing and interrogating his wife. The last time they contacted his wife was in November 2017.
·In 2011 his wife’s family attended court to show their support to a group of Catholic youths who had been arrested and charged; some members of his wife’s family and his friend’s mother were also arrested; the authorities have threatened to detain his wife and his father-in-law’s sister; he believes his wife is being threatened because of his participation in the demonstration because his identity as an opponent to the Vietnamese authorities is known to them.
·Further, his wife has expressed her views about the Vietnamese governments land policies and complicity in crimes and has been exposed to further threats and harassment by the authorities. He believes she is being targeted because of his involvement in the public demonstrations.
·He is a Catholic in a predominantly Buddhist country.
·When he was in Vietnam churches in his village were purposely burnt down by unknown individuals.
·The applicant experienced discrimination as a Catholic including being fired by his employer [when] it was discovered that he was Catholic.
·He fears he will face difficulty finding employment in Vietnam because he cannot work on his family’s farm because it is known to the authorities. It will be difficult to obtain employment elsewhere if he does not conceal his religious belief. It will also be difficult to hold a job because he would have to go into hiding again to ensure he will not again be detained by the authorities.
·He also believes he will be persecuted by the Buddhist population in Vietnam as a Catholic, who have been targeted in Vietnam.
The representative provided a written submission to the Tribunal setting out the applicant’s background, immigration history, addressing the delegate’s specific credibility concerns, and the grounds upon which the applicant is relying upon. She refers to country information where relevant to support her contentions that the applicant’s fears in these respects are well founded. Also provided were articles about anti-China protests in Vietnam in mid-2011, which the applicant allegedly attended, and problems faced by Christians and returning asylum seekers in Vietnam.
At the Tribunal hearing the applicant expanded upon his background and protection claims, summarised as follows. He told the Tribunal that he left Vietnam [in] March 2013, flew to [Country 2] from Ho Chi Minh city on a passport in a different name (organised by an agent) and then came to Australia by boat, arriving on 8 April 2013. He had visited his aunt and helped her sell [goods] in [Country 1] twice before: from April 2009 to September 2010, and from February to March 2011.
Before he last left Vietnam in March 2013 the applicant said he had been living in Ha Tinh, from around May 2012, with someone previously unknown to him where he worked [in] exchange for accommodation. Prior to that he lived in Vinh – from October 2011 to May 2012 – with his cousin’s friend. Before that he was staying at his aunt’s house [near] his [hometown]. He claims he was in hiding in these places. Prior to that he lived in his home town and worked as a [farmer]. His [family members] still live there.
The applicant said he left Vietnam in March 2013 because of adverse interest in him by the Vietnamese authorities because of his participation in a number of protests in Hanoi in mid-2011. Specifically he attended several protests against the Chinese government’s behaviour, particularly in relation to the contested Hoang Sa and Truong Sa islands during that period: the first [in] June [and] the last one he attended was [in] July. His wife’s cousin – [Mr B] – was one of the organisers of the protests who encouraged him to join and initially they travelled to Hanoi from their home town [together]. The applicant described the following incidences during this period:
a.The applicant and a friend, [Mr C], were arrested by plainclothes police who attended a protest [in] June (after beating protesters), taken to a police station, questioned, and then released.
b.After another demonstration [in] June, also in Hanoi, the applicant said he and a number of protesters met at a lake where many police officers and ‘gangsters’ came and assaulted them, warning them not to take part in any more demonstrations. The applicant said he was beaten ‘cruelly’ in this instance, arrested, and along with 10 others taken to a police station where he was interviewed and warned with imprisonment if the protests continued. At the police station the applicant was hit on the head with a stick and lost consciousness. He was also given an injection of some sort. After other protesters arrived at the police station and demanded their release, the applicant and the others were released.
c.[Mr B] was arrested at a protest [in] July along with others and taken away by the police. Although the applicant did not attend the protest, he and [Mr C] had been nearby, keeping an eye on the protests. After [Mr B] was arrested the applicant told the ‘RFA’ (free radio and newspaper operators). He then attended the police station and [Mr B] was then released.
d.[In] July two men [were] arrested whilst they were walking home from school or university (not whilst taking part in demonstrations). As a result [Mr C] became nervous that the police were looking to arrest everyone involved in the protests. [Mr C] told the applicant to go away and hide, which he did. He went to his aunt’s house in a town near his hometown and then to Vinh in September that year.
The applicant said he left his home town to go into hiding [in] August 2011 after [Mr B] was arrested again in Hanoi. About 10 days later local police came to his home to arrest him, but he had already left. After that the applicant said he did not dare call his wife and instead called his uncle, who told him that the police were going to his home all the time and warned him not to return home.
Whilst in Australia the applicant said the police have telephoned his wife and asked his whereabouts: she told them she does not know. In October 2017 the applicant said the police summoned his wife to attend the police station, which she did. There they questioned her about her cousin, [Mr B], who had had absconded whilst on parole. The applicant explained that after his arrest [in] August 2011, [Mr B] was charged with conspiracy to overturn the government because of his participation in anti-China protests at the time. He was convicted and sentenced to four years in prison and four years parole. He was released on parole in September 2015 but he continued to ‘fight for Vietnamese people’ (he did not elaborate) so the police went to rearrest him but could not find him. No one knows where he is currently, but they assume he is in hiding. The police believe the applicant’s wife has been providing information to him.
The applicant’s wife told him prior to this, in May 2017, local authorities at the district level refused to issue her a new NIC to replace the one she lost, telling her she could wait until her husband returns home.
The applicant said the summons in October 2017 was the last time the police contacted his wife in Vietnam. When asked why she has stayed in the village, the applicant said because she did not do anything.
The applicant said he is afraid he will be arrested at the airport on arrival in Vietnam because of his participation in the protests against China in mid-2011. Noting that the authorities let him go after arresting him twice during this time, the applicant said that was because they did not have evidence at the time. However he said that when the ‘important’ people were arrested they found out names of other participants: that was when he went into hiding to survive.
In a post-hearing written submission[1] provided to the Tribunal the representative addressed some concerns in the applicant’s evidence discussed at hearing, set out below where relevant. She submitted that despite some inconsistencies in the applicant’s evidence and new claims, no adverse credibility findings should be made against the applicant, having regard to Departmental policy advice and guidelines on assessing credibility. This includes discounting issues concerning credibility of immaterial facts; an expectation that contradictions, inconsistences and omission might appear in the information presented by the asylum seeker; and warnings on overreliance on minor inconsistencies. The Tribunal has had regard to these guidelines when assessing the credibility of the applicant’s claims, discussed in more detail below.
[1] Dated 11 July 2018
The representative also provided a translation from Vietnamese to English of a letter from ‘[Mr A]’ dated 25 May 2018 in support of the applicant’s claims.
Findings on the applicant’s claims and evidence: political opinion
The Tribunal accepts the applicant’s claims about his family composition, place of residence and work history in Vietnam, as set out above. It has a number of concerns about his claimed involvement in protests in Hanoi in 2011 however, for a number of reasons including inconsistences between his initial written claims presented in his protection visa application in 2013 and his claims before the Tribunal. For example:
·In his typed statement that accompanied his protection visa application the applicant states that he attended one protest in Hanoi in or around [October] 2010. However in his written and oral evidence to the Tribunal the applicant states he actually attended several protests (he was not sure if it was three or five) in Hanoi from [June] 2011 to [July] 2011. The applicant explained the discrepancies were due to the fact that when he first arrived in Australia (by boat) and was asked about these events he was feeling very frightened, confused and could not think straight. The representative submitted that due to the trauma the applicant experienced in Vietnam and harrowing boat ride to Australia, he had difficulty recalling precise dates. Nonetheless, she argued, he has remained consistent in his claims to fear persecution on political opinion grounds, because of his participation in public demonstrations in Vietnam. Whilst this may explain discrepancies in dates, for example, it does not explain other significant inconsistencies in the applicant’s evidence such as the difference between attending one protest and attending ‘several’ (possibly five). There are other concerns with the applicant’s core claims to have been involved in these protests, as set out below, including the applicant omitting to include key claims in his initial statement provided to the Department such as being arrested a number of times, which cause the Tribunal to doubt his explanation in this regard.

Inconsistencies also exist between the applicant’s written claims and oral evidence to the Tribunal. For example:
·In his statutory declaration provided to the Tribunal the applicant stated that although in hiding, [in] December 2012 he returned to visit his family for Christmas in his home town; the authorities came to know; but he managed to escape out the back of the house. However he made no mention of this incident at hearing and when asked if he visited his family home after [August] 2011 (when he claimed to have gone into hiding) he replied ‘no’. It was only after the Tribunal asked specifically about the incident recorded in his statutory declaration that the applicant said he did return home once. Specifically he said on [date] December he went to his home town from Vinh to spend new year with his wife but police came 30 minutes later and raided their house, but he was able to escape. However his failure to mention this incident spontaneously at hearing, including when asked specifically if he visited his home when in hiding, casts doubts on his claims in this regard.
·In his statutory declaration provided to the Tribunal the applicant states that despite travelling to Australia the Vietnamese authorities have persistently tried to locate him; they have attended his home in the village and have harassed and interrogated his wife; and the last time they contacted his wife was in November 2017. However at hearing when asked if they had contacted his wife, he said she was summonsed in October 2017 to attend at the local police station in relation to her cousin, [Mr B], who had absconded whilst on parole. In a post-hearing submission the representative states that his wife was approached in either October or November 2017 and that the applicant cannot remember for certain, but reiterated that the authorities queried her about both the whereabouts of [Mr B] and the applicant. However the Tribunal notes at hearing when the applicant mentioned that his wife had been summonsed he said it was in relation to [Mr B] and it was not until the Tribunal pointed out his claim in his statutory declaration when he added his wife was also asked about him when she was summoned to the police station last year.
The representative submitted that even though the applicant was not able to remember all the details of the events associated with the demonstrations, his confusion and forgetfulness does not necessarily imply that he is not telling the truth. In her post hearing written submission to the Tribunal the representative submitted that the inconsistences and contradictions in the applicant’s evidence, as discussed at hearing, are accepted under Departmental Guidelines dealing with credibility. She also submitted that during the hearing the applicant experienced anxiety, nervousness and bewilderment because it was the first time he had attended an inquisitorial hearing and was frightened by the significance of the outcome. The Tribunal notes the applicant did not appear to be anxious or frightened at hearing and did not mention any specific concerns. Nonetheless it is willing to accept he may have been and notes this is not uncommon in such a setting. However such nervousness, if it did exist, does not in the Tribunal’s view, account for a number of problems with the applicant’s credibility, as discussed above and below.
There are other concerns the Tribunal has with the applicant’s core claims to have been politically active in Vietnam and experienced problems as a result, including the fact that the applicant has raised new claims in significant respects before the Tribunal. Specifically he now claims to have been arrested and detained temporarily twice by the authorities whilst protesting in Hanoi in mid-2011, yet failed to mention this fact at all in his written statement provided to the Department. The applicant told the Tribunal (orally and in writing) that he did not mention this claim initially because he was scared the Australian authorities would hold it against him and his Protection visa application would be jeopardised. He said he had just arrived from [Country 2] and did not understand anything, there had been troubles on the boat and his interview was quick. In her post hearing submission to the Tribunal the representative submits that when the applicant first arrived in Australia he mistrusted the Australian authorities and feared disclosing information that would jeopardise his claims. He also feared being subject to ill-treatment, as he had experienced when detained by the Vietnamese police in the past. However she states that the applicant ultimately disclosed such information after realising that Australia is a humane country and he would not be subject to ill-treatment. As such, it is submitted that this additional information should not be viewed adversely against the applicant, particularly – she contended - given his claims are not incoherent or implausible and are consistent with country information. The Tribunal accepts the applicant may have had a difficult boat journey to Australia which may have affected his ability to put forth his claims to a certain extent and he may have been fearful of disclosing to the Australian authorities his previous arrests in Vietnam. However these explanations do not, in the Tribunal’s view, overcome the serious credibility concerns the Tribunal has with this aspect of his claims.
Other claims the applicant failed to disclose to the Department include that his wife and her family members in Vietnam have also been targeted due to their political opposition to the Vietnamese government, as set out in his statutory declaration provided to the Tribunal, summarised above (earlier). As well the Tribunal notes the applicant did not mention these new claims at hearing and when asked if there were any other problems he said ‘no’. When asked specifically about his claims in his statutory declaration (and the representative’s written submission) about his wife and some of her family members being threatened by the Vietnamese authorities with detention because they attended court (in support of a number of Catholic youths arrested) and had criticised the government, the applicant agreed that there are problems but was vague when asked the nature of the problems and did not provide any details about this particular matter. For example he said first if his wife and her family want to leave the local area they have to get permission because the authorities have accused his wife of having family members in hiding: that is the applicant and [Mr B] (who is wanted by the government). When asked specifically why he mentioned in his statutory declaration that his wife and members of her family attended court in support of Catholic youths arrested in 2011, he said because he is scared a similar thing might happen to him on return because of his participation in protests years ago. He added that the situation is very unfair for such people on trial in Vietnam where there are no human rights, and the Communist Party punishes anyone they want.
In her post-hearing submission to the Tribunal the representative explained that the applicant initially failed to disclose such information because he was unaware he could disclose information that was not directly relevant to him. Whilst the Tribunal is willing to accept that may have been the case to a certain extent, his vague oral evidence at hearing about this aspect of the new claims leads the Tribunal to doubt they occurred. Given the applicant’s limited and vague oral evidence about these matters, the Tribunal does not accept his claims that his wife and other family members have been targeted by the Vietnamese authorities due to their criticism or political opposition to the authorities as claimed. For these reasons the Tribunal does not accept the applicant’s claim that his wife and her family attended court to support the Catholics in 2011 or that his wife has been harassed by the authorities and is a target because of her political opinion. Given these findings and based on the reasons above and below, the Tribunal also does not accept the applicant’s claims at hearing that the authorities denied his wife a NIC replacement because of her family’s conduct, or the applicant’s activities.
Given these concerns the Tribunal does not accept the applicant’s claims to have been involved in protests in Hanoi in 2011 or in 2010. It follows that it does not accept that he was arrested and detained and questioned twice as a result of his participation in the protests, or physically harmed by the police as claimed. It follows that it does not accept that any of his friends or relatives – including [Mr B] - participated in the protests or experienced any problems from the authorities as a consequence. The Tribunal also does not accept the applicant went into hiding from [date] August 2011 as claimed. The Tribunal finds the applicant does not face a well-founded fear of persecution from the authorities on return to Vietnam because he participated in protests in the past as claimed.
Given the Tribunal has not accepted the applicant was politically active in the past in Vietnam, it finds he will not be politically active on return and therefore finds remote the chance that he would face serious harm from the authorities in the reasonably foreseeable future on political opinion grounds in Vietnam. His fear of persecution on this basis is not well founded.
Taking into account the above concerns and considerations, the Tribunal also does not accept the applicant’s claims at hearing that his wife is suspected by the police of providing information to her cousin, [Mr B] who had allegedly absconded whilst on parole. As such the Tribunal finds the applicant does not face a well-founded fear of persecution because of his association with [Mr B], who he claims the authorities have concerns with because of his involvement with anti-government activities.
In reaching this conclusion the Tribunal has had regard to a letter provided post hearing allegedly from [Mr B] about his and the applicant’s experiences in Vietnam. However the Tribunal notes it contains information that is inconsistent with the applicant’s claims. For example, [Mr B] states in his letter that he was arrested once – [in] July - however the applicant states in his statutory declaration provided to the Tribunal that [Mr B] was arrested twice: [in] July 2011 and [August] 2011. As well, [Mr B] states in the letter that he went to Hanoi [in] June 2011 however the applicant told the Tribunal that the first protest he attended was [in] June 2011 in Hanoi (where he went with [Mr B]). The Tribunal also notes in her pre-hearing written submission the representative submits that neither the applicant nor his family have heard from [Mr B] since his second arrest in [August] 2011. Also, at hearing the applicant said [Mr B] was in hiding and no one knew where he was. However the letter allegedly from [Mr B] is dated 25 May 2018, which is before the representative’s written submission dated 13 June 2018 and the Tribunal hearings on 14 June 2018 and 3 July 2018. The Tribunal notes in the representative’s post hearing submission she submits that the applicant has recently made contact with [Mr B], who supplied the letter dated 25 May 2018. However if that was the case, it does not explain why the letter is dated prior to the Tribunal hearings and the 13 June 2018 submission, which casts doubt on the veracity of the letter. For these reasons the Tribunal gives it little weight.
As mentioned, in his statutory declaration provided to the Tribunal the applicant stated that [Mr B] was a member of the Viet Than political party, who oppose the current regime. The applicant states that although he was not a member, he partially supported the ideals of the party, given they felt the same way about the Vietnamese government’s behaviour towards situations such as the Parcel Islands. When asked at hearing about what he meant, the applicant said the Viet Than party only tells the truth – including talking about mistakes made by the Vietnamese Communist Party – however the Communist Party would always hide bad things. He confirmed that he is not a member of the party, and has never been involved. Based on his oral evidence the Tribunal accepts the applicant has never been involved with the Viet Than party in Vietnam and whilst he may support some of their ideals, this alone would not result in him facing a well-founded fear of persecution on return to Vietnam from the authorities or anyone else. Given the Tribunal did not accept the applicant was politically active in the past and will not be on return, the Tribunal does not accept the applicant will express such views in the future on return to Vietnam. It therefore finds remote the chance that he will face serious harm from the authorities or anyone else on the basis of supporting some of the ideals of the Viet Than Party.
Catholic religion
The applicant claims he will be at a greater risk of harm from the authorities in Vietnam because of his Catholic religion, when combined with his past profile as someone who has demonstrated against the government. At hearing he claimed that during the time of anti-Chinese protests they also asked for right to worship religion but he did not experience any problems because of that. The Tribunal accepts the applicant is a Catholic, however for reasons above it does not accept the applicant’s claims to have demonstrated against the Vietnamese government in 2011, including for religious freedom as claimed and therefore rejects the submission that he has a profile of someone who has demonstrated against the government.
The applicant also told the Tribunal at the hearing that he participated in two protests for religious freedom and against religious oppression in [District 1] and Vinh sometime before he married in 2008 but did not experience any problems, which is why he did not mention these protests before. Although a late claim, the Tribunal is willing to accept the applicant may have been involved in two protests for religious freedom and against religious oppression in [District 1] and Vinh in the past. However given his oral evidence that he did not experience any problems as a result and there was no follow up, the Tribunal finds remote the chance the applicant would face serious harm by the authorities or anyone else on return on the basis of participating in two protests around 10 years ago.
The Tribunal notes in his written statement provided to the Department the applicant states that several churches in his village had been destroyed, a sentiment repeated in his statutory declaration provided to the Tribunal and his representative’s written submission to the Tribunal. Specifically in his statutory declaration the applicant states that while he was in Vietnam churches in his village were purposefully burned down by ‘unknown individuals’. When asked about these claims at hearing the applicant said a long time ago – before he was married – he and others in his village protested the government wanting to confiscate church land; the authorities threw stones at the church, church members and their houses in an attempt to destroy the church; and later the authorities tried to burn the church, but were unsuccessful. His oral evidence that the authorities attempted to burn down his church in his village differs in significant respects from his written claims that the churches had been deliberately burned down by unknown individuals. The Tribunal therefore does not accept the applicant’s claims that he participated in a protest sometime in or around 2008 against church land confiscation or that churches in his village were burned down, or the authorities attempted to be burn down his local church. He therefore does not face a well-founded fear of persecution on return to Vietnam on this basis.
The applicant also claimed in his statutory declaration provided to the Tribunal that he experienced discrimination as a Catholic in Vietnam: specifically he was fired by his employer [when] he found out he was Catholic, after observing a crucifix around his neck. However he made no mention of this incident at hearing and when asked specifically if he experienced discrimination or work problems because of his religion he referred only to the fact that he was unable to obtain a local government job because one of the criteria was to become a member of the Communist Party which required him to give up his religious belief. The Tribunal therefore does not accept the applicant was fired by his employer in the past in Vietnam when he discovered he was a Catholic. The Tribunal accepts it may be a requirement for people to give up their religious belief if they join the Communist Party in order to obtain a local government job in Vietnam. However it does not consider being unable to obtain a local government job constitutes serious harm. In terms of being able to obtain work as a Catholic, the Tribunal notes the applicant’s evidence that he was able to work in the past in [Vietnam]. At hearing the applicant agreed but said he was largely self-employed or employed by relatives or friends.
More broadly the applicant gave evidence to the Tribunal that he used to practice his Catholic religion by attending church regularly in Vietnam and the church he attended was registered. The Tribunal accepts the applicant is a Catholic, as are his [family members] who remain in Vietnam and that he was able to practise his religion when he lived there. As discussed at hearing DFAT indicate in their most recent country information report on Vietnam that Catholics who practice in registered churches and otherwise do not have an adverse political profile, are able to do so relatively freely. They state:
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 and its policies.[2]
[2] DFAT Country Information Report Vietnam, 21 June 2017 at 3.9 and 3.10.
In a post-hearing submission to the Tribunal the representative contended that at hearing the Member appeared to negate the findings of the DFAT report confirming that Vietnamese Catholics are subject to persecution, in stating the applicant’s church in his home town appeared to be registered and therefore would not be subject to monitoring and persecution by the Vietnamese government. Further, she submitted that the Member formed a conclusion based on the applicant’s vague response and that the question of whether Catholics are persecuted by the authorities in Vietnam should be assessed in light of the available country information which ‘undoubtedly’ confirms the persecution of Catholics by the authorities. Reference was made to a 2012 research response from the former Refugee Review Tribunal (RRT)[3] to support her contentions in this regard, in particular information indicating that the Vietnamese government take action against Catholics who are perceived to be challenging the authority of the state, including those involved in land disputes or political dissidence. Taking into account this submission, the Tribunal has also had regard to DFAT’s advice about the treatment of people who attend unregistered churches in Vietnam as follows:
Credible in-country contacts and human rights advocates reported that several parishes in remote areas with majority ethnic minority congregations faced difficulty registering churches. Local authorities often ignored, or were unaware of, national laws with respect to church registration. The US Department of State’s international religious freedom report for 2015 reported the case of 22 unregistered Catholic house churches scheduled for demolition in the Central Highlands province of Kon Tum in 2015. The demolition was halted following involvement by the church leadership, after which authorities and the church entered into dialogue regarding construction of new worship facilities.
In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated areas.
DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion (see Political Activists for further information).[4]
[3] RRT research response, 1 March 2012 VNM39947,
[4] Ibid at 3.11 – 3.13

When this information from DFAT – about treatment of registered and unregistered churches - was discussed at hearing the applicant said if there is a dispute over the land between the government and church laws, then it does not matter if the church followers belong to a registered or unregistered church because their treatment is the same. In a post-hearing submission provided to the Tribunal the representative stated that the applicant instructs that he is part of a minority religious group in Vietnam, which the Tribunal confirmed at hearing was subject to ‘periods of intimidation and harassment’. He also instructs that the persecution of Catholics is usually ‘localised’ news.
The Tribunal acknowledges country information as set out above and referred to by the representative in her submission indicates a level of restriction on religious freedom in Vietnam and concerns about continued restrictions on the right to freedom of religion and belief. However, as discussed at hearing, religious observance and practice usually only become an issue when it is perceived to challenge the authorities or interests of the CPV and its policies.[5] As well, whilst the treatment of religious groups varies widely across Vietnam, it is further dependent upon their relationship with the government and those groups the government continued to monitor the activities of are mainly unregistered church groups in ethnic minority communities due to their real or perceived political activism[6]. DFAT assesses that individuals who engage in open criticism of the government face a high risk of harassment, among other things, but followers who practice their faith at home and within government-sanctioned boundaries are unlikely to attract adverse attention from the authorities[7]. For reasons above the Tribunal does not accept the applicant’s claims to have been involved in anti-Chinese government protests in Hanoi in 2011 or protests against the authorities plans to confiscate church land in or around 2008. It accepts he may have been involved in two protests against religious oppression sometime prior to 2009 in Vinh and [District 1] but has found he does not face a real chance of serious harm on return on that basis. There is no indication that Catholics followers are persecuted for practising their faith per se.
[5] DFAT Country Information Report Vietnam, 21 June 2017 at 3.8, 3.10, 3.13 and 3.25
[6] Ibid at 3.8
[7] Ibid at 3.19
At hearing the applicant told the Tribunal his parents, wife and daughter, who are Catholics, have not been able to attend their local church [since] sometime in 2017 when priests were banned by the authorities to conduct mass at their church. This was due to a longstanding protest by local church goers and the priests against the local authorities’ plans to confiscate the church land. Instead his family members attend another church in a village located about three kilometres away. The Tribunal accepts his claims in this regard and accepts there is a level of inconvenience for the applicant’s family members not being able to attend church in their own village. However they are able to attend church in a nearby village and no claims have been made indicating that they have otherwise been prevented from practising their religion. The applicant did not submit that his family were involved in protesting the church land or may be perceived as being involved.
The Tribunal notes in his statutory declaration provided to the Tribunal the applicant claimed to fear persecution in Vietnam from the Buddhist population, as a Catholic, who have been targeted. However at hearing he did not claim to have experienced any specific problems in the past from members of the Buddhist population as a Catholic in Vietnam.
Given these considerations the Tribunal is satisfied the applicant will be able to practice his Catholic religion as he claims he has in the past – by praying and attending church – and finds the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he returns to Vietnam for reasons of his Catholic religion or any imputed political opinion based on his Catholic religion from the authorities, the Buddhist population (as claimed in his statutory declaration provided to the Tribunal), or anyone else.
Failed asylum seeker
The Tribunal has considered if the applicant faces serious harm from the authorities on return to Vietnam on imputed (anti-government) political opinion grounds as a failed asylum seeker.
As discussed at hearing, with respect to the treatment of returnees, DFAT in their most recent country information report on Vietnam state as follows:
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’.[8]
[8] DFAT Country Information Report Vietnam, 21 June 2017 at 5.15
Furthermore DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Vietnamese government.[9]
[9] Ibid at 5.21
At hearing the applicant said he is concerned about potential harm from the authorities if he returns to Vietnam, including as a failed asylum seeker, noting he cannot predict what that may be. With respect to the DFAT advice about the treatment of returnees, the applicant said he believes those who have returned and faced no consequences are mainly those who had no participation in political activities beforehand. However for reasons above the Tribunal does not accept he has engaged in political activities in 2011 and whilst it accepts he may have attend some local protests against the confiscation of church land, this occurred before 2008 and there has been no further problems.
In a post-hearing submission provided to the Tribunal the representative submits that the applicant may be liable for prosecution on return to Vietnam as a failed asylum seeker under Article 91(1)-(3) of the Penal Code, despite DFAT indicating they were unaware of such incidents of prosecution. As well in that and an earlier submission to the Tribunal the representative referred to a number of articles from the ABC[10] and SBS[11] about the mistreatment of asylum seekers who came by boat on return to Vietnam to support her contentions that the applicant fears of serious harm on return to Vietnam as a failed asylum seeker are well founded. She submitted that although the applicant did not flee Vietnam by boat, he belongs to the particular social group of individuals who have escaped persecution by Vietnamese authorities by fleeing Vietnam’ and is likely to face persecution on return on this basis, as well as due to travelling to Australia by boat (from [Country 2]) which will inevitably become known to the Vietnamese authorities.
[10] That is at: and
The Tribunal has had regard to this submission and the media articles provided about Vietnamese asylum seekers intercepted by the Australian navy and returned to Vietnam in around 2016. It appears that those who were charged and given prison sentences on return were the organisers of the trips and/or accused of playing leading roles in the attempt to reach Australia. In this respect, as discussed at hearing, 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 also state that ‘they understand this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.’[12] In the applicant’s case the Tribunal does not accept that he would be considered to have organised any similar trips given the circumstances of his departure from Vietnam in 2013 by plane to [Country 2] on a visitor visa[13] and finds remote the chance that he would be charged, arrested and detained by the authorities and possibly face serious harm as a result on return to Vietnam.
[12] DFAT Country Information Report Vietnam, 21 June 2017 at 5.17
[13] As submitted in the representative’s written submission provided to the Tribunal dated 13 June 2018.
For these reasons, including the country information above that does not indicate that failed asylum seekers face problems or different treatment from the government on return, the Tribunal finds the applicant does not face a real chance of persecution on return to Vietnam as a failed asylum seeker on imputed or actual political opinion grounds or for any other reason such as membership of a particular social group of failed asylum seekers or of ‘individuals who have escaped persecution by Vietnamese authorities by fleeing Vietnam’ as submitted and/or on imputed political opinion grounds as a failed asylum seeker, even taking into account his criminal record in Australia (addressed separately below), among other matters.
Illegal departure
The Tribunal has considered the applicant’s claims to fear persecution on return to Vietnam because of his illegal departure from that country.
At hearing the applicant said that although he left HCM city by plane in March 2013, he departed the country using a passport that contained his photograph but a different name. The Tribunal has some concern about his claims in this respect because in his visa application form it is stated that his passport in his name was destroyed by people smugglers in [Country 2]. At hearing the applicant said he was asked about his passport by an official when he was in detention and attributes this to the confusion. The Tribunal is willing to accept the applicant’s claims that he left Vietnam on a passport issued in a different name. Based on the following DFAT advice, he may be subject to a fine on return as a result.
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 VND 2 million and VND 10 million (approximately AUD$120-600) 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 VND 20 million and VND 50 million (AUD$1,200-3,000) 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 departing Vietnam illegally. While some returnees may 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.[14]
[14] DFAT Country Information Report Vietnam 21 June 2017 at 5.16 and 5.17
At hearing when this information was discussed and when asked if he could pay the fine, the applicant said it would be very difficult for ‘village people’ to pay such a large amount (of up to VND 50 million). He claimed he has been homeless and lived a largely itinerant lifestyle for the last five years in Australia however he had not raised this claim before and his oral evidence was vague and unconvincing and the Tribunal does not accept his claims in this respect. In her post hearing submission to the Tribunal the representative submits that the applicant is incapable of paying the fine. For the reasons that follow the Tribunal does not accept her submission in this regard. The applicant was able to pay the fare for his travel to Australia in 2013 (and twice to [Country 1] before that), and gave evidence to the Tribunal that his family members own some land in Vietnam (even if small) which they farm. The Tribunal also does not accept his claims to have been destitute in Australia. For these reasons the Tribunal is satisfied the applicant would be able to pay a fine he may be subject to on return to Vietnam for leaving the country on a false passport.
Based on the country information above, as discussed at hearing, the Tribunal finds that on return to Vietnam the applicant may be detained briefly and interviewed, and face a fine of up to VND 50 million. The Tribunal does not accept he will not be able to pay the fine, as submitted, if it is imposed, and does not consider the payment of a fine, detention and interview would amount to serious harm.
For these reasons the Tribunal finds the applicant does not face a real chance of persecution on account of his illegal departure from Vietnam from the authorities or anyone else on the basis of imputed political opinion grounds, or any other ground.
Criminal matters in Australia
The Tribunal has considered if the applicant faces a well-founded fear of persecution from the authorities on return to Vietnam because of his criminal matters in Australia.
According to information outlined in the representative’s written submission to the Tribunal the applicant was charged with escaping immigration detention under section 197A of the Migration Act in 2013. He was located and detained on 14 March 2018 and the applicant told the Tribunal he is due to appear in court about this matter in October 2018. He did not indicate he had any concerns on return to Vietnam as a result.
The Tribunal doubts the charge of escaping immigration detention would be considered a serious crime in Vietnam. Even if it was, as discussed at hearing, country information indicates that the principle of double jeopardy applies in Vietnam, which means he cannot be tried for the same crimes he committed in Australia. Therefore he cannot be tried for any of the crimes to which he has served his sentence in Australia.[15] Accordingly the Tribunal finds the applicant does not face a real chance of serious harm from the Vietnamese authorities on return to Vietnam because of his criminal matters in Australia.
Conclusion – refugee grounds
[15] Ibid at 4.7
Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Vietnam for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Vietnam and the Tribunal therefore finds that Vietnam is the ‘receiving country’ for these purposes.
It is submitted that the applicant is owed complementary protection because he will suffer certain types of harm on return to Vietnam which engage Australia’s protection obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).
For reasons set out above, the Tribunal finds the applicant does not face a real chance of serious harm if he returns to Vietnam from the authorities or anyone else because of his involvement in protests in 2011, his criminal record in Australia, as a failed asylum seeker, given the circumstances of his departure from Vietnam, or his Catholic religion. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[16] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Vietnam on these bases as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.
[16] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
The Tribunal has accepted the applicant may have to give up his Catholic faith if he wanted to obtain a local government job, which is a prerequisite for joining the Communist Party. However, the Tribunal does not accept not being able to obtain a local government job amounts to significant harm for complementary protection purposes.
With respect to illegal departure, as this is a real risk faced by the population generally for those who breached the law that deals with irregular departure, and not by the applicant personally, the Tribunal also finds, under s.36(2B)(c), this is taken not to be a real risk that the applicant will suffer significant harm. For reasons above the Tribunal has found the applicant has the means to pay the fine that may be imposed on him for his illegal/irregular departure, and does not find that the payment of a fine, detention and interview would amount to significant harm for complementary protection purposes.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Nicole Burns
Member

[2018] AATA 4313

14 August 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction