1810620 (Refugee)

[2024] AATA 4318

1810620 (Refugee) [2024] AATA 4318 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810620

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Patrick Francis

DATE:6 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 August 2024 at 11:36am

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – family of former Republic of Vietnam army – online activism – protests – threat made to family – fear of detention – exit procedures – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 April 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Vietnam, applied for the visas on 21 April 2017. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants held any anti-Vietnamese government political opinion. The delegate did not accept there was a factual basis to the applicant’s claims of fearing harm on return to Vietnam. In reaching that conclusion the delegate also referred to the applicants’ lack of expression of political opinion since their arrival in Australia in addition to their delay in seeking asylum. The delegate found that there was not more than a remote or insubstantial chance that the applicants would be seriously harmed on return to Vietnam and that there were no substantial grounds for believing that the applicants faced a real risk of significant harm in any form claimed in Vietnam.

3. The applicants appeared before the Tribunal on 4 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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.

   Mandatory considerations

9. 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.

   CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicants are persons 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.

    Protection visa application

11. In the protection visa application the first named applicant stated that he left Vietnam because he was worried about their lives in Vietnam. In response to the question “What do you think will happen to you if you return to that country(s)” is written “It is too bad if return to there.” He indicated he did not experience harm in Vietnam. In response to the question as to whether he believed he would be harmed or mistreated if he return to Vietnam, the first named applicant has ticked the box “No”, with the comment: “I’m not sure about that.” He also set out that he did not think the authorities in Vietnam would protect him if he returned.

12. In the protection visa application the second named applicant indicated that she was making her own claims for protection. She set out that she left Vietnam because “It was a bad environment to live in”. The second named applicant also set out that if she returned to Vietnam: “ … I am not sure what happen to me and my family. May be much more bad things.” She indicated she did not experience harm in Vietnam and that she was not sure if she would be harmed or mistreated if she returned to that country. Further, that she did not think the authorities of that country would protect her as she could not believe the Vietnamese government.

    Hearing

13. At hearing both applicants gave evidence that they are Vietnamese citizens. The second named applicant was asked if she had her own claims for protection or was relying on those made by the first named applicant. She responded that she was his wife and that if there were any questions, he would speak for her.

14. The first named applicant told the Tribunal that he has [specified children], [number] of whom currently remain in Vietnam and [another] who resides in [Country 1]. He maintains contact with his children by telephone. In Vietnam he had a shop selling [products 1] and also had [a products 2 business]. Prior to coming to Australia he had travelled to [specified countries] as a tourist. He paid for those trips from his own savings. He arrived in Australia [in] October 2014 as a tourist with the intention to visit Australia and relatives. In response to a question he said that he was unable to remember exactly how long the tourist visa was valid for but thought it might be for three months or one year.

15. The first named applicant told the Tribunal he applied for a protection visa two or three years after he arrived in Australia. He asked an overseas student to help in fill out the visa application form. He did not do so earlier because when he arrived in Australia he didn’t know English or how to apply for a visa. He did not answer a question from the Tribunal directly as to whether he asked for that form to be interpreted, rather he said that he had just arrived in Australia and didn’t know many people as he kept to himself. He had not subsequently provided a detailed written statement in support of his claim because if he gave that information to somebody else they would know about his profile.

16. The Tribunal asked the first named applicant why he left Vietnam. He did not answer that question initially despite it being repeated, but referred to a threat made to his son some two days after he arrived in Australia. The first named applicant then gave evidence that he left Vietnam because there was no freedom and the politics had put pressure on people. He said he had originally only planned to visit Australia for sightseeing but when the police came to his house he didn’t dare to return to Vietnam. He is fearful that he would be jailed if he returned to Vietnam. When asked why he had such concerns, the first named applicant said that he made friends with an intellectual person on [social media] and was involved in protests against China. When asked why he would be harmed on that account he said that he was sentenced for being against the country and shared information about the Vietnamese government on [social media]. He subsequently clarified that statement, asserting that he was accused of being against the country. He said most of his friends had been put in jail. When asked if he had any evidence to submit regarding his political activities the first named applicant referred to making friends with activists on [social media].

17. The Tribunal noted that there was no evidence before it regarding any [social media] posts and queried whether there was any reason he hadn’t provided that evidence when, if it was his own [social media] account it would appear to be readily accessible. Initially the first named applicant said that the overseas student (who assisted him with his visa application in 2017) didn’t do it. The Tribunal suggested the first named applicant had a number of years to do so himself and, in response to the applicant referred to being busy with work, that he did not know English and indicated his [social media] name had been changed. The Tribunal noted that the account he referred to was ostensibly his own account and in his own language. Further that the first named applicant had a number of years to provide something about his [social media] account to the Tribunal but had not done so. In response he reasserted that he did not know anyone or English.

18. At the hearing the Tribunal asked the first named applicant if he could provide more detail about his concerns should he return to Vietnam. In response he said that his son told him that the police came to his house. In Vietnam he had made friends and shared [social media] pages and went on protests. It was sensitive to be against the country. The Tribunal asked the first named applicant what he was sharing on [social media] and with whom. He indicated that in 2011 to 2014 he had shared posts about ships from China hitting ships in Vietnam. He said this would put him at risk because he criticised the Vietnamese government for being timid and that’s why security knew about it. Security came to his house after he had been in Australia for two days. The Tribunal noted the first named applicant’s reference to posts in 2011 and that he had also travelled to multiple countries between 2011 and 2014. Further, the country information indicated that if he was adverse interest to the government, it would not be so easy to travel backwards and forwards without any difficulties. In response the first named applicant again referred to the visit to his son two days after the first applicant’s arrival in Australia. He asserted that previously the police didn’t follow him, but he realised after he came to Australia that they had been following him.

19. The Tribunal asked the first named applicant why he believed the Vietnamese government would target him because of his [social media] activities. He said in response that they may not imprison you immediately but if you’re active on [social media] a lot of people were imprisoned in Vietnam. It happens every day. The police had told his son (two days after the first named applicant arrived in Australia) that the first named applicant had better stop posting on [social media]. The Tribunal sought details of statements the first named applicant made on [social media] that could bring him to difficulty with the Vietnamese government. He said that he had criticised the Communist government on [social media], he was dissatisfied and he commented about that. Security and police came to his house to tell him not to post on [social media] about sensitive information.

20. The Tribunal indicated a preliminary concern that the first named applicant was not providing much detail other than expressing he was dissatisfied. The applicant again referred to the police coming to visit his son two days after his arrival in Australia. The Tribunal queried whether there was some reason the first named applicant was unable to provide more detail about his claims to have criticised the government. In response the first applicant said “no”. He then said he went on protests that put him at risk of being imprisoned. He usually made comment about how bad the government was. The Tribunal indicated his responses were still fairly broad and queried whether, if he had undertaken such activities, he would be able to provide more detail about his criticisms of the Vietnamese government. In response the first named applicant said that he said he went on protests with friends; the first time was in May 2011 and then later in 2014. There were 700 or 800 people at the protest. When asked what his role was the first named applicant said he was just one of the followers. The Tribunal queried why he would be at risk on that basis. In response the first applicant said that most of the people also posted on [social media]. Noting his evidence, the Tribunal suggested that nothing had apparently happened to him in Vietnam even though he had attended the protest in 2011. The first named applicant then said that on a few occasions the local government had asked him to come in but he didn’t do so. The Tribunal sought to confirm that nothing adverse had happened to him after the protests in 2011 however the first named applicant again repeated his evidence about being asked to come in by the local government and his refusal to do so.

21. At hearing the first named applicant confirmed that his claims regarding fear of the Vietnamese authorities were confined to attending some protests and his posts on [social media].

22. Later in the hearing the first named applicant claimed that the authorities and the police came to confiscate his [products 2] from his business in 2013. The Tribunal referred to country information regarding the capacity of Vietnamese authorities to prevent departures of people of interest and the applicant’s evidence that he managed to enter and depart Vietnam without an apparent problem, which might suggest he was not of adverse interest to the authorities. In response the first applicant repeated that the police had confiscated his products. He said that they pretended to be gangsters and threatened him. The Tribunal noted that the first named applicant had not earlier given evidence about any threats prior to leaving Vietnam and sought further details. In response the first named applicant referred to the claimed visit to his house two days after his departure from Vietnam. The Tribunal sought to clarify whether he had only received threats after he left Vietnam. The first named applicant gave evidence that there were two incidents; on one occasion police pretended to be gangsters and hit him. He was returning from a friend’s house and was threatened that he shouldn’t continue being like that. They didn’t specify detail just told him about going against the country. On the second occasion the police came and confiscated his products. On both occasions it was the same guy. When asked if there was any reason he hadn’t given earlier evidence about the assault the first named applicant asserted that he didn’t do so because he wasn’t asked.

23. The first named applicant also claimed that he would be the focus of authorities because his father was against the government in the past and that’s why the authorities believe he is the son of a political activist. The Tribunal queried why the first named applicant would be at risk from events of 50 years ago. He responded stating that the Communists hate people who used to work with the United States in the past. The Tribunal suggested that its reading of country information before it did not indicate that family members of such persons were now at risk. The first named applicant reiterated that the government hates children of soldiers who worked against the government in the past and made reference to his family leaving their home in 1978. The Tribunal queried whether there was any evidence to support his claims. The applicant said it is the “underground” word and you don’t know when that will happen. Again the Tribunal noted that the first named applicant, on his own evidence, had appeared to run a successful business that allowed him to travel overseas which did not appear consistent with being under the scrutiny of the Vietnamese government. In response he said that they secretly followed him.

24. After a break in the hearing the Tribunal referred to the first named applicant’s evidence regarding the visit to his house two days after his arrival in Australia and asked why he thought that might have occurred then and not sometime earlier. The first named applicant said that he was not quite sure. He said the police told him not to post on [social media] any more.

25. The first named applicant also claimed at hearing that he had supported people in the church in criticising the government. A company caused pollution and people in the church advised others to criticise the government for allowing that to happen. In response to a question from the Tribunal the first named applicant was unable to name the church he referred to. He said that he just knew that the church was from [social media]; he just knew the two people from the church. At that point he asserted that the government had forbidden him from going on [social media]. In subsequent evidence he clarified that he had reduced his activities on [social media] after arrival in Australia but he could still access his [social media] account.

26. The first named applicant further claimed at hearing that he had previously posted on [social media] about corruption in Vietnam. He had not however provided any evidence in support of this claim which the Tribunal again noted was ostensibly in his control to do so. Only at that point did the first named applicant seek to lodge evidence of his [social media] account. He indicated he could ask the lawyer who worked with the Vietnamese community to assist him. The Tribunal agreed to provide a further two weeks after the hearing for the first named applicant to obtain and lodge translated documents from [social media].

27. At hearing the Tribunal also spoke with the second named applicant regarding any separate claims she might have for seeking protection in Australia. She stated that it was always her wish to come a country that values its citizens. The Tribunal referred to the legislative requirements for the grant of a protection visa and asked if she claimed to meet the requirements for that visa. She said that she understood the law and will accept difficulty if she has to return to Vietnam. The Tribunal then queried whether she was only relying on her husband’s claims. The second name applicant asserted that she was not relying on those claims. When asked if she feared serious harm in Vietnam the second named applicant said that she was dissatisfied with the Communist government and had little freedom. She did not provide any further details despite the invitation to do so. In response to questions, she said she had not gone on any political marches, just her husband had done so. The Tribunal noted that there was little evidence or detail provided regarding any claims of political activity by the second named applicant who declined the opportunity to comment or respond to that point.

    Post hearing submissions

1. On 15 March 2024 and 7 May 2024 the first named applicant lodged further photos, screenshots and a translated written statement. The statement sets out, in summary, that the first named applicant’s father was a soldier in the Army of the Republic of Vietnam. When the Allied forces withdrew from the country his father was arrested and alleged to have been in the ‘puppet’ army. His father’s farming land, boats and equipment were seized, the family encountered a lot of difficulties and suffered from misery and hunger. In 1978 his father organised the border crossing and was imprisoned for 3 ½ years. The family made their way to Saigon and then later moved elsewhere in Vietnam. The first named applicant’s mother is now deceased and his father and [siblings] still remain in Vietnam. The first named applicant claims to have escaped back to South Vietnam where he established a small shop earning sufficient money to visit other countries.

   The statement further sets out that in 2011 the first named applicant protested twice against Chinese maritime surveillance vessel sinking of Vietnamese fishing boats and against the Chinese claims to Vietnamese land. He claims that in 2014 he again joined a protest [against] Chinese action in the continental shelf of Vietnam. He claimed to have been watched by local police and to have received a few letters requesting him to discuss the matter with the police. He did not attend as he believed he did not commit any crime. In March 2014 police came to his house concerning alleged purchase of illegal goods. The applicants were beaten and yelled at as anti-government. Two days after the applicants’ arrival in Australia the first named applicant’s [brother] was visited by police and told that the first named applicant must not make friends with anti-government bodies and share posts on [social media]. The first named applicant therefore deleted a number of previously published posts. [Number] of the first named applicant’s [children] left the family home and [another] is applying to migrate to [Country 1].

2. In addition to his written submission the applicant lodged a considerable number of what appears to be copies of untranslated social media posts.

3. The first named applicant did not provide a submission with details concerning what he claims were in the untranslated posts. Nor has he provided any annotations in respect of the photographs he lodged.

   CONSIDERATION

4. The applicants claim to fear harm in Vietnam on account of the first named applicant’s father’s service in the Vietnamese army in the 1970s. They also claim to fear harm on account of the first named applicant’s participation in protests and online opposition to the government. The second named applicant claims generally not to trust the Vietnamese government.

5. For the reasons that follow the Tribunal has significant concerns regarding the applicants’ claims.

   Father’s military service

6. The first named applicant claims that his father was a soldier in the Army of the Republic of Vietnam and that in 1973, when the Allied forces withdrew from the country, his father was arrested and accused of being in the puppet army and puppet administration. [Amount] hectares of land belonging to the family and [equipment] was seized. His family encountered a lot of difficulties, was oppressed, suffered from misery and hunger. His father was again arrested in 1978 and imprisoned for 3 ½ years. The family became beggars and later travelled elsewhere in Vietnam. The first named applicant stated that his mother is now deceased and his father and [siblings] remain in Vietnam. He refers to escaping back to South Vietnam to live, establishing a small shop and to being able to generate savings to visit other countries.

7. The Department of Foreign Affairs and Trade Country Information Report, Vietnam, 11 January 2022 provides information concerning this claim:

   People whose relatives were involved in the Vietnam War

   3.108 Some asylum seekers claim that their relatives (often a grandparent) were involved in the Vietnam War in support of South Vietnam and that they face continuing discrimination as a result. In-country sources told DFAT that some subtle discrimination may exist, for example in educational opportunities, but others told DFAT this was previously the case but is no longer true. Alleged discrimination may relate to an inability to join the CPV where party members might have access to opportunities through their connections that others do not have. Experiences in small communities might be different where unwritten laws and customs may cause some low-level discrimination. The yellow and red flag of the former country of South Vietnam is sensitive and cannot be displayed publicly.

   3.109 On the balance of available evidence, DFAT assesses that discrimination against the relatives of people who were involved in the Vietnam War, if it is exists at all, is low level. DFAT does not rule out the possibility of such discrimination, but is not aware of a strong pattern of such behaviour. The situation would be different for a person who has political opinions that favour a South Vietnamese or pro-American identity, in which case see Political Opinion (Actual or imputed).

8. The Tribunal accepts the first applicant’s claim that his father was in the military in Vietnam. At hearing the applicant claimed that the government is against people who used to work with United States. In the Tribunal’s view however, there was nothing in the applicant’s evidence which warrants a finding that the first named applicant was harmed or under threat in the two or three decades prior to his departure from Vietnam in 2014. On the evidence before it the first named applicant’s father still remains in Vietnam and there are no claims that the father is now at risk of harm in that country on account of his previous military service. The Tribunal does not accept the first named applicant’s claims that that he was followed secretly due to his father’s military service. He made such a claim without providing any further details as to why he believed this, apart from suggesting there was some “underground” word.  Nor does the first applicant make any reference to his father (still living in Vietnam) or himself having experienced difficulties in the last few decades in relation to his previous military service.

9. The Tribunal has taken into consideration country information as contained in the Department of Foreign Affairs and Trade Report, above, in assessing the applicant’s claims. The Tribunal has made further findings below concerning the first named applicant’s claimed political activities or profile.

   Opposition or perceived opposition to government

10. In their protection visa application the applicants indicated they did not experience harm in Vietnam (question 91 of the protection visa application).

11. The first named applicant claims to have been involved in various protests against the government, both in person and online. The evidence, in the Tribunal’s view, regarding these claims is undetailed, at times contrived and far from convincing.

12. The first named applicant claimed he was involved in two protests in 2011 and a further protest in 2014 concerning the presence of Chinese vessels in Vietnamese waters. He claims that he was subsequently invited by police/local authorities to discuss the matter with them but he chose not do so. The first named applicant does not claim to have been charged or arrested concerning those matters, nor in respect of the claimed [social media] posts. He indicated at hearing that his [social media] posts extended to supporting a church which had criticised the government on account of a company causing pollution. He further, without detail, claimed to have posted on [social media] about corruption in Vietnam. When asked at hearing if there was a reason he was unable to provide more detail about his claims to have criticised the government, the applicant simply responded with “No”. The Tribunal considers that, had the first named applicant indeed been critical of the government for the claimed reasons, he would have been able to provide a far more detailed account of the criticisms he asserts were made through his [social media] posts. He has not done so.

13. The applicants provided photographs and copies of [social media] posts with post hearing submissions but have not detailed what those photographs or posts represent or how they support their claims. The first named applicant was reminded at hearing of the need to have any such evidence translated. He did not do so. Very few of the posts contain any English language. It is not evident to the Tribunal whether the first named applicant was communicating with the people who have made the posts or has simply copied posts made by others. Nor is it apparent to the Tribunal the contents of those posts or the association the first named applicant had with the people making the posts. A number of the photographs appear to have been taken in Australia (noting details in the background) in a religious setting. It is not apparent to the Tribunal how those photographs relate to the claims. The Tribunal does not accept that those photographs or copies of social media posts support the applicant’s claims.

14. Given the first named applicant’s claims concerning protests in 2011, it appears to the Tribunal there was ample opportunity for the police/authorities in Vietnam to take action against the applicants if they were minded to do so. The Tribunal does not have any of the claimed [social media] posts made by the applicant before it (in a translated form) despite providing the applicant an opportunity to do so. The assertions, in the Tribunal’s view, lack critical details.

15. At hearing the first named applicant referred to having his [products 2] confiscated from his business in 2013. He indicated that the police who confiscated the products pretended to be gangsters and threatened him. This evidence was given at a point in the hearing when the applicants had not previously made claims regarding any threats prior to leaving Vietnam.  The first named applicant then claimed that the police had hit him. In post hearing submissions the first named applicant claimed that both he and his wife were both beaten in April 2014, a further addition to his evidence. The first named applicant also at hearing referred to a second occasion when he was threatened when returning from a friend’s house in March 2014.

16. The Tribunal found the first named applicant’s accounts of interactions with police to be considerably lacking detail and made at a point in the hearing where he had multiple opportunities to give evidence about threats or harm. His stated reasons at hearing for not providing that information earlier were that he was not asked. His claim at hearing stands in contrast to the information provided in his protection visa application (that he was not harmed in Vietnam). Further, those claims stand in contrast to his initial evidence at hearing regarding why he left Vietnam. He initially referred to arriving in Australia for sightseeing purposes but changed his mind when he discovered that his son had been visited in Vietnam by authorities only two days after the applicants arrived in Australia.

17. The Tribunal has taken into account the evidence regarding receiving assistance with completing the protection visa application. It appears to the Tribunal that the applicants took little care to ensure they understood the details of what was set out in their protection visa application form given the description of how the form was completed. Had the applicants been beaten in Vietnam the Tribunal considers that would have been stated in their protection visa application and would have been stated as a reason for arriving in Australia in giving evidence earlier at hearing. The Tribunal does not accept the assertion by the first named applicant at hearing that he did not provide full details when completing the protection visa application because somebody else might know about his profile. The protection visa application indicates that the applicants were not harmed in Vietnam. Had the second named applicant been beaten the Tribunal considers such a claim would have been made in the application and at hearing rather than as an assertion in post hearing submissions. The Tribunal does not accept that the evidence in this regard is reliable and finds it to be contrived.

18. The evidence is that the applicants arrived in Australia in October 2014 and applied for the protection visa in April 2017, a delay of some 2 ½ years. They claim to have initially arrived with the intention of tourism but that the telephone call alerting them to the visit by police to their home in Vietnam two days after their departure was cause for them to stay in Australia. Although referring to difficulties with English and uncertainty regarding visa application processes as reasons for the delay, no evidence was given of any efforts made by the applicants to ascertain their rights to remain in Australia or any options for seeking protection. In that context and given the Tribunal’s credibility concerns, the Tribunal finds the delay in seeking protection in Australia is inconsistent with the claimed fears.

19. The second named applicant, in her protection visa application, sets out that she was making her own claims for protection. Only sparse details of any concerns were stated in the application. She also indicated that she did not experience harm in Vietnam but was concerned about the “bad environment” and “much more bad things”. She does not claim to have participated in any political activity or been perceived to have been politically involved. The success of her claims are largely dependent on those of her husband. The Tribunal has not accepted that the second named applicant was beaten as was claimed in post hearing submissions. The Tribunal does not accept that she has come to the attention of authorities in Vietnam for any of the reasons claimed or that she would come to the attention of the authorities and the reasonably foreseeable future for such reasons.

20. As set out above, country information contained in the Department of Foreign Affairs and Trade Country Information Report, Vietnam, 11 January 2022 assesses that discrimination against the relatives of people who were involved in the Vietnam war, if it exists at all, is low level but that the situation would be different for a person who has political opinions that favours a South Vietnamese or pro-American identity.

21. The Tribunal does not accept that the first named applicant was told not to keep criticising the government on [social media] or that the police asked him to have discussions with them regarding his participation in protest activity. In the context of the Tribunal’s significant concerns as to the credibility of various claims made by the first named applicant, the Tribunal does not accept the first named applicant’s claims that he made various posts condemning the Vietnamese government or came to attention for participation in protests. It follows that the Tribunal does not accept that the applicants were under surveillance, pursued or of interest to the Vietnamese authorities on account of first named applicant’s [social media] activities or in protests. Further, the Tribunal does not accept that the applicants were assaulted or threatened by authorities in Vietnam or that the police visited the applicants’ home two days after their departure from Vietnam. The Tribunal does not accept that either of the applicants have such political opinions as claimed or would be perceived by the Vietnamese authorities to have such opinions.

22. Based on the evidence before it the Tribunal is not satisfied that the applicants face a real chance of serious harm or significant harm on return to Vietnam on account of military service by the first named applicant’s father. The Tribunal is not satisfied that the applicants face a real chance of serious harm or significant harm on account of their political beliefs or perceived political opposition to the Vietnamese government in the reasonably foreseeable future.

23. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants protection visas.

    Patrick Francis
    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.

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    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.

    …