1812300 (Refugee)

1812300 (Refugee) [2024] AATA 3201 (30 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms My Yen Tran
CASE NUMBER:  1812300
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Rodger Shanahan
DATE:30 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 January 2024 at 1:04pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – dispute with relatives – attacked and beaten – delay in applying for protection – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
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 Home Affairs on 6 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 17 October 2017.
The applicant appeared before the Tribunal on 8 January 2024 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. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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
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
Protection Visa Application
The applicant made the following statement in support of his protection visa application:
a.I and [Mrs A], born in [year], married in 1985. Then we decided to live with my biological father, [Mr B], born in [year] in [Hamlet], [Commune], Tra Cu district, Tra Vinh province, Vietnam. In [year], my wife and I had two children, the circumstances of our family was financial difficulties so I had to work away from home. When I returned home, my next-door neighbors told me that while I was away from work, the disgusting incident had happened that was the incestuous relationship between [Mr B] (father-in-law) and [Mrs A] (daughter-in-law), they have lived together as husband and wife.
b.At first, I did not believe and ignore, but the truth was so painful for me when I caught them they actually had an unlawful and morally unacceptable relationship. I tried to suppress myself because of my father's and family's reputation and then arranged to talk and advise them to stop this ashamed relationship. I would assume nothing happened and they agreed. Only a short time, then they continued to keep the above relationship. Next, my wife's family knew everything; they did not stop but also dragged their relatives to assault and battery me, with the reason that I have smeared their family and daughter's honors.
c.They deliberately killed me, such as: First, they attacked me with a knife and cut my hand, I made a petition to my local government where I lived. Unlucky my father and my wife's family they have bribed the authorities to hide happened things and continued to threaten and will take revenge on me. The second time, when I was at home, they suddenly came, rushed into my house and threw the hammer on my leg. This time I decided to file a denunciation to the higher authorities to seek help as well as protect my life.
d.Unfortunately, they continually used the money to bribe government agencies so the problem did not solve and to be stopped, whereas I was continually threatened by them if they found me anywhere would kill me. I was so desperate to leave my village to protect my life, and I decided to escape the border to another country to live but not successful and the communist authorities arrested me and forced me in prison for a year.
e.After that, I became homeless, wandering around but did not dare to return my village where I was born, lived and have family knowing that it was still a dangerous place to my life, so I decided to go to Saigon to live without an support from family, relatives, and others until my mother, [Ms C], who is living in Australia, making a sponsor for my Australian visitor visa travel to Australia.
f.In Australia, I realized that Australia is a safe place for my life. Unlike in Vietnam, it is unjust oppression, they do not judge by law but by money Finally, I decided not to go back to Vietnam because I knew that I would not be able to keep my life. For this reason, I am applying for asylum in Australia because I need the protection here to help me stay safe. I am a victim but no protected by the Vietnamese government. hereby wish the Australian immigration department to consider my stay in Australia as humanitarian for my life.
Statutory Declaration of 29 December 2023
I am a citizen of Vietnam. I was born on [date]. I arrived to Australia on the [date] April 2009. I was sponsored by my mother ([Ms C]) on a Class UL subclass 679 Visa to visit her because she was extremely ill. As my mother was extremely ill, she required extra support and care in her daily life. She contacted the Department to seek an extension on my visa but it was refused.
I then applied for a Tourist Onshore Visa on 22 July 2009 and this was also refused. The Class UL visa which I was holding at the time expired on [date] July 2009. I was unlawful in Australia for eight years. During this time, I helped care for and support my mother because she was becoming extremely old and fragile.
On 17 October 2017, my friend assisted me to lodge a protection visa. This application for the protection visa was refused on 06 April 2018.
I was previously married to [Mrs A] (dob: [year]). From this relationship, we had two daughters :We lived in a small house in the village, Tra Vinh. At this home, my father, [Mr B] (dob: [year]) also resided with us. After the birth of my eldest daughter, my wife and I faced extreme financial difficulties.
As my wife was looking after our daughter who was only a newborn at the time, I was working at a job which required me to relocate to a different village. The task involved me working away from home for long periods of time and was extremely physically strenuous.
After I returned home from the initial period of working away, I would bring back my money and give it to my wife. Nothing seemed out of the usual, and we were a happy family raising our daughter. On the second instance where I returned home from work, several neighbours had informed me that my wife and father had begun a relationship together.
I genuinely did not believe them because I did not believe that my wife and father would betray me. I was home for around two weeks every time I returned home from work. On one occasion, I came home to my father and wife having sexual intercourse. It was genuinely a horrifying sight, and I was in shock. My wife and father both confronted me and informed me to not tell anybody of what was happening. I stated to them that there were already rumours in the village, and that a neighbour warned me prior.
My father got extremely angry at this and attacked me with a knife. I tried to grab the knife as I was fearful for my life, and this caused a deep cut to my hand. I was in shock and fearful for my life. I truly thought that I was going to be killed in this moment due to my father's frustrations and anger about me knowing of their relationship. I escaped from the house and attempted to contact the local authorities and police.
The police began the investigation into the assault. However, I asked the police to cease the investigation because I subsequently forgave my wife. I did not want our small family to be ruined because our daughter was only a few months old. I also forgave my wife because of the threats which my father made to me.
I tried to move on from this situation and attempted to entirely forget that my wife and father betrayed me. Everyday living around the home seemed to return to normalcy. When I would return from home after long periods away at work, nothing seemed out of the ordinary. My wife and I then had our second daughter during this period.
I continued to work away from home as the money which I earnt was enough to support my wife and daughters for food and every day necessities such as clothing and whatnot. When I returned home from work unannounced, I caught my wife and father once again. I was extremely angry and upset because I thought we had all moved past this terrible situation. The reason why I forgave them the first time was because we all agreed to move forward and that they would cease their relationship.
I was so upset and frustrated that I rang my wife's mother and told her of what I had witnessed for the second time. My mother-in-law did not believe me and had instead yelled back at me for defaming their family image and ruining their reputation as they were very well-known in Vietnam and held high positions in the government. My mother-in-law also told me that she would never forgive me for my actions of 'defaming' my wife.
I was in shock and told my wife that I no longer wanted a relationship with her. The following day after telling my mother-in-law about my wife's affair with my father, I heard a banging on the door. When I went to open it, I was ambushed by around ten or so men who were carrying bats and weapons such as knives and hammers. They physically abused me and pushed me down onto the floor, where they continued to kick and assault me.
My wife and father witnessed this attack and did not call any authorities or do anything to help me as they knew that my mother-in-law had orchestrated the attack and they wanted me dead. After the attack, I was bruised and bleeding. My hands were cut up again from the knives, and my entire body felt as though I was being tortured.
During the attack, I thought I was getting tortured and that I was going to die. I went to the local authorities and police to ask them to re start the investigation into the assault from my father and the men sent to me by my mother-in-law. I also reported the torture which I endured and toid the police that it was the doing of my mother-in-law.
The police ignored my reports and request for help in the instance if I was attacked again. The police and local authorities did not provide any help to me. When I returned to the home, my wife and father were together. They told me that my reports to the police and local authorities would be futile because my wife's family and father bribed these figures to ignore my claims.
I was truly fearful of losing my life and was extremely afraid of being subject to any more physical and mental torture by the doing of my father and wife's family. I left the home several days after this incident. I could not sleep because I was afraid somebody would enter the house and kill me during the nighttime.
I tried to escape the border of Vietnam to relocate to a new country because I was so fearful and afraid that I would be killed. I was unsuccessful as I was captured by the Vietnamese communist authorities. I was put into the Vietnamese prison for one year for my attempts to escape the country.
After I was released from the Vietnamese prison, I was homeless. During my time in prison, I did not have any contact with my wife or father. I was still afraid of returning to my village as I was fearful for my life and scared to be subject to torture.
I wandered around Vietnam and did not have a permanent home. I was in Ho Chi Minh City by myself as I did not have any other family or relatives in Vietnam who could help me. I was living in hiding in the city because I was afraid that my father and wife's family would find me. I was sponsored by my mother to Australia in 2009 because she was very sick and required somebody to care for her.
To this day, I remain scared and afraid of returning to Vietnam. My ex-wife's family is extremely wealthy in Vietnam and hold high positions in the government. The local authorities and police in Vietnam do not aim to serve justice but are corrupt and easily bribed.
During those attacks made by my father and mother-in-law, I suffered significant injuries and torture. The attacks were degrading and cruel, and I continue to have nightmares of these incidents in the present day. Many people in the village knew of the affair between my wife and father, and the attacks and torture which I was subject to. They were too scared to help me.
I will face further torture and harm if I were to return to Vietnam. I am fearful for my life and afraid that I will be killed due to the relentlessness and cruel nature of my ex wife, father and ex-wife's family. I have been in Australia for a number of years now since late April of 2009.
I am the main carer and support system for my mother who has become extremely ill as she grows older. She needs my help for daily functioning and requires daily care which I have been providing for her all these years.
I have since established a life in Australia and am married to an Australian citizen. I understand that I have been an unlawful citizen of Australia. I am sincerely apologetic and ask the Department to recognise the sincere and serious harm which I will undoubtedly face should I return to Vietnam.
AAT Hearing
Asked what serious harm he feared if he returned to Vietnam, he claimed that his in-laws hated him and had previously attacked him with a weapon when he was in Vietnam. They (his wife’s family) could kill him if he returned. In the past he had to work away from home and one day he returned to his village and was told that his wife and his father were having an affair.
He told his wife to stop this affair but she couldn’t or wouldn’t and so he called his in-laws and told them and invited them to talk to his wife. His mother-in-law didn’t come but ordered all the males in that family to then come and assault him because he had blemished their family’s name. Asked how he blemished the family’s name given his wife and father allegedly had an affair – the Tribunal found it hard to understand that the family would seek to kill him rather than his father, given the applicant had nothing to do with the affair.
He worked far from home and the neighbours told him about the affair – his wife said she would stop it but she didn’t. He asked his children to get his in-laws to come for a family meeting but for some reason his mother-in-law blamed him.
Asked if his in-laws believed that there was an affair or there wasn’t, he claimed that they knew about the relationship but ignored the relationship and blamed him for making it up to blemish the family name. His wife’s family were well-off and well-connected so could do whatever they wanted. Asked if anything had happened to his father, he claimed that nothing happened to him but his father had a harsh attitude towards the applicant. At one point when he caught them red-handed his father tried to stab the applicant.
It was put to him that if his in-laws were trying to kill the applicant then surely they would have tried to kill his father – that way they could kill the affair as well. He claimed that they were just after the applicant because they accused him of blemishing their name. In fact his father was on the side of the in-laws and they both came after the applicant and got the government onside against him.
He was asked to provide some more details, particularly a timeline, so the Tribunal could gain a better understanding regarding the events. The first things happened around 1987-88 and the second time was around 1990 (he got the local government involved at this stage). Later, his father and his in-laws got together and bribed the officials to shut him up. In 1990 he returned from work and found his father and his wife in bed together – he went to the local authorities to report this but his cousin was working in the local authority and accepted the bribe from his father and his in-laws so the matter wouldn’t proceed.
Asked when he was attacked, he claimed that it was in 1990. He caught them in bed and he invited his in-laws to come to his house to discuss the issue but instead they went 25 people to come and attack him. Asked when he was cut by his father, he said this was also in 1990. In 1987/88 nothing happened to him as they had a talk and his wife promised to end the relationship. His mother-in-law also asked his wife to stop and she said it would. They stopped for a while and then re-started in 1990. The relationship is still ongoing but it isn’t made public – it is still secret but his children knew and his in-laws still hated him. He agreed that it had continued for 33 years since he had left.

He agreed that he left home a few days after this. He had an uncle in Australia who told him that he should find his way to the island and from there he would be able to sponsor the applicant. Asked what island he meant, he said his uncle told him to make his way to one of the islands but he was caught before he could get there. Asked what islands he was talking about, he said that his uncle didn’t name an island, just told him to get to any island and the uncle would tae care of the rest.
He found a smuggler but they were caught by the authorities on the way to the boat and he was put in prison. He was told that this didn’t make any sense as the smuggler would have needed to know where he wanted to go- he said that smugglers normally didn’t have a destination. They gathered the people who wanted to leave and they would board the boat and just go. He again said there was no particular destination, they just went somewhere and accepted what the future held.
He agreed that he went to prison for a year but had no evidence as his father burnt them when he got angry. The applicant was charged with exiting the country illegally and sentenced. Asked if he mentioned the charge in his protection visa application, he said that he didn’t put this in the application as he just wanted to focus on the family dispute. He was told it was just a tick box so he didn’t need to ignore it – he then said that perhaps he forgot. He left prison in 1991.
Asked what happened to him between 1991 and when he left, he claimed that he never went back to the village – he went to Saigon and stayed temporarily for a few months each in different places. He did this for the next 18 years. Asked if he said this in his protection visa application, he said he said some of it. He was taken to his protection visa application and it was put to him that he never mentioned Saigon at all in the places he had lived in in Vietnam. He wrote that he had lived in the village until 2008 – he claimed that he wasn’t sure if he mentioned it in the application but he had lived there from before his wife had an affair (for work). But he lived there permanently after 1991.
Asked why it wasn’t mentioned in his protection visa application where the addresses were listed, his adviser said that it was mentioned in his statement. She was advised that it was not mentioned at Q 68 which specifically asked about addresses where he had lived. The applicant said he hadn’t understood the question – he was asked what part he didn’t understand, he said he didn’t think he had to list all addresses until he met his adviser.
Asked if he had mentioned his Saigon address in his visitor’s visa application to come to Australia, he said that he didn’t, he used the village address. It was put to him that he claimed not to have lived there for 18 years so it was strange that he put this address down. He said that he needed a family registration booklet which he only had for the village as he was unable to register in Saigon. Asked if he had any evidence that would support his claim that he had lived in Saigon for nay of the 18 years in which he had claimed to have lived there. He said he only had a driver’s licence from Saigon. Post-hearing he provided a copy of a drivers licence issued in Saigon in 2003 that was valid for three years – there is no explanation as to why it was not re-issued in 2006.
He was asked about the nightmares he claimed to have been having as a result of what he had experienced in Vietnam, and was asked if he had any medical evidence regarding this, or treatment he had received for it. He said that he hadn’t sought any treatment because he thought he only had to go to the doctor to get some medicine for his headaches. It was put to him that he had claimed to have been tortured and surely he would have sought some help. He said that he had not sought any psychological treatment and there was no medical evidence he could present.
Asked if he was still married to his wife, he said he was divorced. Asked if he had a divorce certificate, he said that he did – his wife filed for divorce about two years ago. Asked when they were divorced, he said it was 2022/23. The certificate said it was 2023 (he was confused about the date and constantly referred to 2002 and 2003). He confirmed the divorce certificate was sent to him in 2023. He had re-married in Australia in April 2023. Asked why there was still a problem with his in-laws now that he had divorced his wife, he claimed that the family had never forgiven him.
Asked if he had ever been refused a visa previously, he said that this visa had been refused previously. Asked if he had ever been refused a visitor’s visa, he said that he hadn’t. Asked when he arrived in Australia he said it was 2009, and when he applied for protection he said that it was 2017. He was asked why he waited eight years to apply for protection (during which he was illegal for quite some time) given he fled Vietnam to avoid being killed and the delay didn’t give the Tribunal confidence that he was fleeing death in Vietnam. He claimed that he didn’t understand that such a system existed – he later approached a migration agent and they told him that he had to wait for five to seven years before he could apply for protection and that he would have to fill it out himself.
It was put to him that the Tribunal didn’t believe an agent would tell him this. he said that he was illegal and they told him that he had to wait for five years before he could apply for any visa. It was put to him that this was hard to believe, and that he had Australian citizen relatives in this country and they could have helped him to navigate the system. He said he didn’t know anyone who was knowledgeable and the people he asked told him what he told the Tribunal.
He was told about s 424AA and it was put to him that he had previously denied having had a visitor’s visa refused previously, yet in his visitor’s visa application to come to Australia, it said that he had been refused a visitor’s visa previously in November 2008. The form also said that he had never been charged with, or convicted of an offence, which was different to what he had told the Tribunal at hearing today. These inconsistencies went to issues of his credibility as a witness.
He claimed that the return to Vietnam was too hard for him and he had sick relatives in Australia to look after and he wanted to stay in Australia. He was asked to answer the question that he was asked and he claimed that he didn’t know that he had a refusal. He was invited to come and was told by his lawyer that his visa application was missing and they had to lodge another one which was approved. It was put to him that he had written that the application had been refused, not that it was missing. He said this was what he was told by the agent and he had no idea otherwise.
Asked why he hadn’t mentioned his alleged conviction in Vietnam, he claimed that he prepared the application himself and didn’t understand that question. Asked what he thought the question asked, he claimed that he didn’t understand until he met his migration agent. It was put to him that he had written that he hadn’t been convicted of a crime but had written that he had been refused a visa. If he had prepared the application himself it didn’t make sense that he would write that he had been refused a visa if his agent told him that it was missing. None of these claims made sense and the Tribunal had concerns that he wasn’t being truthful. He said that perhaps he had written 2018 and was confused – he was told that the Tribunal was reading from his application and he wrote 2008. He didn’t reply.
It was put to him that the letter he provided allegedly from a police officer in Vietnam had no security features and could have been made on any home computer and it was unlikely the Tribunal could give it any weight. He said that it had been stamped by the local government. It was put to him that stamps could be easily reproduced and wasn’t really a security feature.
It was put to him that his claim that his father got away scot-free and had now joined with his wife’s family against the applicant even though the father was having the affair made no sense. There was no evidence that he was on the run for 18 years in Saigon. He disagreed and never thought he would have to prove he lived in Saigon which is why he had no evidence. His father had destroyed any evidence that he may have.
He was asked about the cuts on his hands from the alleged knife attack. He showed a deep scar on the top of his right hand that went around the thumb. It was put to him that he claimed to have cuts on both hands and a deep cut on one hand from where he tried to grab the knife. The cut was on the outside of one hand and there were no marks on his other hand. He claimed the scar wasn’t from where he grabbed the knife but from where he stopped it from being thrown at him. He claimed his relatives stopped his father from attacking him. He was asked about his written statement which talked about the cuts on his hands and the physical evidence from his hands that were inconsistent with what he had written. It was put to him that he was a farmer and could have gotten the scar on his right hand from his normal work.
He said that he had only been attacked by that many people once and he had had his hand cut defending himself. It was put to him that the lack of scars on his hands didn’t support what he had written in his claim. He said that in his form he wrote that he had been cut in only one hand. He said that due to the language barriers he couldn’t understand very well what was written down and information may have been written down that he didn’t know about. He was asked why someone would write wrong information given they would surely just write down what he had told them – he claimed that he told them the truth and they put it down wrongly. Asked why they would do this, he said he didn’t know what was in there.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on [date] April 2009 on a sponsored family visitor visa that expired on [date] July 2009. He applied for a protection visa on 17 October 2017. I have sighted his Vietnamese visa and accept that he is a national of that country.
The applicant is a [age] year-old man who claimed that if he returned to Vietnam he would be killed by the family of his wife (now ex-wife) because the applicant’s father had an affair with his wife (now ex-wife).
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Affair
I do not accept that the applicant’s father had an affair with the applicant’s then-wife and that his then-wife’s family attacked and later sought to kill him because of this. The claim’s premise entirely lacks credibility – that his father was having the affair but the son (the applicant) was targeted because of the shame it brought on the his then-wife’s family. At the same time the perpetrator (his father) was not only allowed to continue the affair, he joined forces with the then-wife’s family against the applicant.
I do not accept that his wife’s mother would accuse him of defaming their family and ruining their family’s reputation when he informed her of the affair and that she would never forgive him for defaming their family. The applicant also stated that many people in the village knew of the affair, and in his hearing he said that some of his neighbours had told him about the affair. Given that it appeared to be well-known in the village before the applicant called his wife’s mother, it makes it even stranger that nothing ever happened to his father who was the instigator of the alleged affair.
Other aspects of the applicant’s claim either lacked credibility, or the available evidence failed to support it. He claimed that he had been attacked by 25 men and received cuts to both his hands in trying to defend himself. He also claimed that his father attacked him with a knife and he tried to grab the knife and this caused a deep cut to his hand. When the Tribunal asked to examine his hands, the only mark was a large scar on the top of the right had that continued around between his thumb and forefinger. There were no marks on the other hand.
I do not accept that the scar on his right hand wasn’t the result of grabbing the knife wielded by his father but from where he had stopped it being thrown at him. This was inconsistent with what he wrote in his statutory declaration, as was his claim that he had only written that he had cuts on one hand. I do not accept that this was due to language difficulties and the person writing it had written it incorrectly. Whilst errors are always possible, the sentences in which the claims were written make sense regarding grabbing the knife wielded by his father and the use of the plural when describing cuts to both hands, but do not make sense adopting the applicant’s claimed oral testimony as to what occurred.
I have also taken into account a letter he claimed was from a local police officer attesting to the fact that he was responsible for resolving the issues relating to claims of physical assault and threats to his life made by the applicant in 1990 and 1991. The document is a photo of what appears to be a police letter. Country information[1] indicates that document fraud is common in Vietnam and he was advised about the concerns the Tribunal had regarding the veracity of the document he provided. Given this document could have been produced on any home computer, I am unable to lend it any weight.
Other Issues
[1] Country Information Report – Vietnam, 11 January 2022, p 35.
The applicant’s delay in applying for protection is inconsistent with the history of assault he outlined and the fear he claimed have if he returned to Vietnam. He did not apply for a protection visa for eight and a half years after arriving in Australia. He remained illegally in Australia for most of this time.
I do not accept that he was unaware that there was a protection visa system, and that he approached an (unnamed) migration agent who told him that he had to wait for five to seven years before he could apply and that he would have to fill out the form himself. I do not accept that a migration agent would have told him either of these things, particularly given there would have potentially been work in it for them if they had provided the correct advice.
Regardless, he was living with Australian citizen relatives and they could easily have approached the Immigration Department or a migration agent/lawyer in order to apply for protection if the applicant’s claim had been true.
I also do not accept that the applicant had tried to flee Vietnam but had been stopped and spent a year in prison as a result. Again, this relies entirely on his oral evidence, the claim is vague and lacks credibility and there is some inconsistency. He claimed that his uncle in Australia told him that he should find his way to ‘the island’ and from there he could sponsor the applicant. He claimed that his uncle told him just to go to any island and he would take care of the rest.
This is too vague a direction to have been given to the applicant, for the applicant (or a smuggler) to have accepted. I do not accept that the applicant had been charged and found guilty of leaving the country illegally and sentenced to a year in prison. He had no evidence of any police, legal pr custodial proceedings – although he claimed his father destroyed them, he never sought a replacement from any court or police facility, nor did the policeman’s letter he provided in support of his claim make any mention of this.
More importantly, the applicant stated that he had never been convicted of an offence in his visitor’s visa to come to Australia. I do not accept his claim made at hearing that he didn’t understand the question being asked until he met a migration agent, or the claim he made in a post-hearing statement in which he said that he didn’t write it because it occurred more than a decade before. Firstly, the question was straightforward and required him to tick yes or no – in the same application he had ticked the box saying that he had been refused a visa and then explained in writing in the box below. This indicates a level of comprehension sufficient to understand the question that he was posed about conviction. Given he had only been convicted of one offence in his life and spent a year in prison because of it, it makes no sense that would forget that it occurred.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant’s father ever had an affair with the applicant’s wife, that he was ever attacked by his father or his wife’s family, that he was ever imprisoned for trying to leave the country illegally, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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.
Rodger Shanahan
Member

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

[2024] AATA 3201

30 January 2024

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