1814665 (Refugee)

[2022] AATA 716

1814665 (Refugee) [2022] AATA 716 (22 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1814665

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jason Pennell

DATE:22 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 February 2022 at 10.34am

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – anti-Communist – detained after protest – Formosa protest – expressed views against corruption – credibility issues – inconsistent evidence – delay in applying for protection – decision under review affirmed

LEGISLATION

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

CASES

Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
Liu v MIMA [2001] FCA 257
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
MIMA v Zheng [2000] FCA 50
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310 of 1997
VCAD v MIMIA [2004] FCA 1005
Wang v MIMA (2000) 105 FCR 548
Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988)
WZAOO v MIAC (2012) 134 332
Zhang v RRT & Anor [1997] FCA 423

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 3 July 2017. The delegate refused to grant the visa on 8 May 2018 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c)) of the Act.

3. The applicant appeared by video hearing before the Tribunal on Friday 26 November 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE

Applicant’s identity

1. The applicant claims that he was born on [date] in Tien Giang, Vietnam.[1] He claims to belong to the Kinh ethnic group. The applicant did not disclose if he is a member of a religious group.[2]

   [1]    Part C - Application for a protection visa application form dated 26 June 2017, Dept file [number], Doc ID No: [number].

   [2]    Ibid.

2. The applicant provided the  Department with a certified copy of his Vietnamese passport.[3] The document provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of Vietnam, and as such his protection claims will be assessed against Vietnam as the country of reference and ‘receiving country’ respectively.

   [3]    Dept file [number], Doc ID No: [number].

Migration history

1. The applicant first arrived in Australia [in] October 2016 on a [Visitor visa]granted on 30 September 2016 and applied for a protection visa (XA-866) on 3 July 2017.[4]  The applicant has not departed Australia since his arrival[5] and did not travel to any other country other than Australia prior to making his protection visa application.

   [4]    Department’s protection visa acknowledgement letter, Dept file [number], Doc ID No: [number].

   [5]    Dept of Home Affairs - Mainframe Movement Records dated 24 November 2021, AAT file No1814665, Doc ID No: [number].

2. The applicant was granted a Bridging Visa C (WC-030) on 22 August 2017 with condition 8101 (‘no work’) attached to it. He applied to the Department for permission to work on 22 September 2017,[6] and a further Bridging Visa C without working restrictions was granted on 16 December 2017. The applicant currently holds a Bridging Visa C.[7]

   [6]    Dept File [number], Doc ID No: [number].

   [7]    Department of Home Affairs - Mainframe Movement Records dated 24 November 2021, AAT file No 1814665, Doc ID No: [number].

Applicant’s claims for protection

1. The applicant first submitted his claims for protection when he lodged his protection visa application to the Department on 3 July 2017.[8] The applicant’s claims are as follows:

   [8]    Ibid,.

   Why did you leave that country(s)? Provide specific details.

   I wanted to leave Viet Nam because my family and I don't like the current Vietnamese government. The only way able to leave my country officially was to apply for a visa to another country. I therefore applied for a visitor visa to Australia. Initially I would like to study to develop my profession and new skills. However, after living in Australia, I appreciate more of the democratic beliefs and the human rights that every Australia citizen here acquires. When I was in Vietnam, I could see the injustice and the authority of the Government officials made decision to take away our places of prayers. The Government confiscated homes for our prayers and developed into tourist places. We have been suppressing to raise our voice or opinion as a catholic believer. I often participated in the protest against the atrocity of the Communist government. On many occasions, amongst other students and professional workers, I was detained for 5 weeks after participating in the protest. I was told by the arrested Police I would be summoned one day to the court for my participation in the protest against the government.

   What do you think will happen to you if you return to that country(s)?

   If I return to Viet Nam now, I will be arrested at the airport because my family are protesting and demanding the explanation from the Vietnamese government about the toxic environment that the local Vietnamese citizens in Ba Ria - Vung Tau are currently enduring. There were millions of dead fishes on the sea and the government did not help to clean up. The cause for the toxic of the environment on the coast of Ha Tinh was from the dumping of chemical of the Chinese company, this has caused polluted air and water around the area which lead to the downfall of the economic growth of our area. Fishes are the source of business products for my family and other locals to generate income. We could no longer work or have food to eat because all the fishes are dead. Because of this, my family and some locals have expressed anger and protest, the Police have now warned if my family continues, we will be all detained and placed in prisons. As my family has been noticed and received warnings, if I return to Viet Nam, I have fears for being detained as well.

   Did you experience harm in that country(s)?

   No

   Did you move, or try to move, to another part of that country(s) to seek safety?

   No. Because in Viet Nam, there is only one government who controls all citizens. Wherever I go to seek safety, If provide my name and with no reason for moving to a new area, I will be interrogated. If the local authority finds out that my family is protesting against the government, I will be detained and sent back to my hometown so that I would be faced the same sentence as per my family's action.

   Do you think you will be harmed or mistreated if you return to that country(s)?

   Yes. Because my family is currently protesting the government about the toxic environment in my hometown, the government can make warrant arrests at any time and at any day. As one member of the family, I will suffer same consequences.

   Do you think the authorities of that country(s) can and will protect you if you go back?

   No. No, because our family has been categorized as one of the protest groups which according to the government, the traitors of the government.

   Do you think you will be able to relocate within that country(s) to an area where you would not be harmed?

   No. No. As stated earlier, wherever I go to, I will face the same treatment. The government will never provide protection to citizens who raise their ow voice/opinions or beliefs. Let alone, my family is actually expressing our anger and organizing the protest.

2. The delegate summarised the applicant’s claims as follows:[9]

   (a)I wanted to leave Vietnam because my family and I don't like the current Vietnamese government. The only way able to leave my country officially was to apply for a visa to another country. I therefore applied for a visitor visa to Australia. Initially I would like to study to develop my profession and new skills. However, after living in Australia, I appreciate more of the democratic beliefs and the human rights that every Australia citizen here acquires. When I was in Vietnam, I could see the injustice and the authority of the Government officials made decision to take away our places of prayers.

   (b)The Government confiscated homes for our prayers and developed into tourist places. We have been suppressing to raise our voice or opinion as a catholic believer. I often participated in the protest against the atrocity of the Communist government. On many occasions, amongst other students and professional workers, I was detained for 5 weeks after participating in the protest. I was told by the arrested Police I would be summoned one day to the court for my participation in the protest against the government.

   (c)If I return to Vietnam now, I will be arrested at the airport because my family are protesting and demanding the explanation from the Vietnamese government about the toxic environment that the local Vietnamese citizens in Ba Ria - Vung Tau are currently enduring.

   (d)There were millions of dead fishes on the sea and the government did not help to clean up.

   (e)The cause for the toxic of the environment on the coast of Ha Tinh was from the dumping of chemical of the Chinese company, this has caused polluted air and water around the area which lead to the downfall of the economic growth of our area. Fishes are the source of business products for my family and other locals to generate income. We could no longer work or have food to eat because all the fishes are dead. Because of this, my family and some locals have expressed anger and protest, the Police have now warned if my family continues, we will be all detained and placed in prisons. As my family has been noticed and received warnings, if I return to Vietnam, I have fears for being detained as well.

   (f)Our family has been categorized as one of the protest groups which according to the government, the traitors of the government.

   (g)Wherever I go to, I will face the same treatment. The government will never provide protection to citizens who raise their own voice/opinions or beliefs. Let alone, my family is actually expressing our anger and organizing the protest.

   [9]    Department of Home Affairs Protection Visa Decision record refusal; AAT file [number], Doc ID [number].

1. Apart from the certified copy of his Vietnamese passport and his claims for protection contained in Form 866C, the applicant did not provide any further documents to the Department in support of his claim for Australian protection.

Applicant’s evidence

1. The applicant claims that he was born on [date] in Saigon, Vietnam and is a citizen of Vietnam.[10] His evidence to the Tribunal was that his hometown was Tien Giang, Vietnam. The applicant stated in his protection visa application form that he can speak, read, and write in Vietnamese.[11]

   [10]  Part C - Application for a protection visa application form dated 26 June 2017, Dept file [number], Doc ID No: [number]

   [11]  Ibid

2. The applicant claims that he has ‘never married or been in a de facto relationship’, that his mother and father are currently residing in Vietnam, and that he has no family members in Australia he is in contact with.[12]

   [12]  Ibid

3. The applicant claims he completed his primary and secondary education [between specified years] at [specified schools] in Vietnam.[13]

   [13]  Ibid

4. The applicant’s father and mother continue to live in Ho Chi Minh City, Vietnam. The applicant’s father is a retired [Occupation 1]. The applicant’s mother worked as [an Occupation 2].  The applicant is the oldest of [his siblings]. He has [specified siblings]. [Specified siblings] continue to live in Vietnam. [One] sister is married and lives in [Town 1], Australia.  

5. The applicant was married in [year] and divorced in 2004. The applicant has [specified children]. [They] continue to live in Vietnam.

6. The applicant worked as [an Occupation 3] until 1992 after which he owned and operated a business selling [specified products] until travelling to Australia in 2016. The applicant claims he has never worked in Australia, and at the time of lodging his protection visa application he was unemployed.[14]

   [14]  Ibid.

7. The applicant claims that he travelled to Australia because he was afraid that if he stayed in Vietnam he would be arrested or put in prison. The applicant’s evidence was that because Vietnam is a communist country it was necessary to seek protection from the authorities. As a result, he stated that he worked as an assistant for [a section of the armed forces] in [District 1] in Vietnam (the department). The applicant’s evidence was that he paid money to a person in the department to obtain an identity card that identified him as an assistant of the department. The applicant’s evidence was that he did not work for the department but merely had obtained an identity card. As such he claimed that he worked for the department informally. His evidence was that he would help the department ‘telling them different things from time to time.’ 

8. The applicant’s evidence was that he attended the Formosa protests at which he witnessed the police hitting and arresting protestors. The applicant’s evidence was that despite identifying the people who organised the protest he did not report them to the department. He did not report the incidents to the department.  The applicant claims he helped rescue a person who was being assaulted by the police. As a result, his evidence was that he was arrested by the police as being part of the protest. The applicant informed the police that he was with the department. As a result, the applicant was interviewed by the police and then released on the basis that he was required to report to the police every couple of days. The applicant’s evidence was that he was not charged with any offence. His evidence was that if he had been charged, he would have been sent to prison.

9. The applicant claimed that he feared being arrested because he had failed to inform the department about the protest. Rather than informing them about the protest he ran away. He claims that he went to live at another residence. His evidence was that the authorities went to his home, but his father told them that he had gone away. 

10. In relation to the applicant’s claims detailed in his protection visa application the applicant’s evidence was that he did not complete the application and was not aware of the claims made in his application. The applicant’s evidence to the Tribunal was that the claims were not correct. His evidence was that he is not Catholic. In addition, there was no evidence that his family had been involved in any protests, including the Formosa protests. 

11. The applicant claims that he does not agree with the government in Vietnam and that upon his return to Vietnam he will be arrested and tortured due to his political beliefs.

Applicant’s delay

1. It is legitimate for the Tribunal to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution.[15] A delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[16] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[17] 

   [15] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J.

   [16] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [17] Subramaniam v MIMA (1998) VG310 of 1997.

2. In this case the applicant arrived in Australia [in] October 2016 on a visitor visa and did not apply for a protection visa until 3 July 2017.[18] The applicant’s evidence was that he did not make any application for a protection visa earlier because he had not been aware that he could make such an application.  Nevertheless, the Tribunal would have expected that, if the applicant had a genuine fear of persecution upon his return to Vietnam, he would have made an application for protection as soon as possible after his arrival in Australia. In circumstances where the applicant claims to have been an assistant to [a section of the armed forces] in [District 1] in Vietnam and claims that he will be persecuted upon his return to Vietnam by reason of his political opinion, the Tribunal does not accept his evidence that he was not aware he could make an application for protection upon his arrival in Australia.  

   [18] Protection Visa Decision Record dated 8 May 2018 at p.1, [number] Doc ID:[number].

3. Rather, the applicant has remained in Australia for a period of approximately eight months before making his protection visa application. Therefore, in all the circumstances, the applicant’s delay in making his application for a protection visa indicates to the Tribunal that he does not hold a genuine fear of being persecuted or being significantly harmed upon his return to Vietnam. As such, given the applicant’s excessive delay in making a valid protection visa application from the date of his arrival in Australia, the Tribunal has placed little weight on the applicant’s evidence in relation to his claims.

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the latest DFAT report on Vietnam dated 11 January 2022 (the DFAT report’) marked as ‘Annexure A’ to this decision.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[19] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[20]

   [19] Section 5AAA, the Act.

   [20] MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[21] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [21] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p. 482.

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[22] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

   [22] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

5. In this case, the applicant’s evidence in relation to his claim was generally illogical and lacking in credibility. His evidence in relation to each claim was vague and lacking in any detail. The Tribunal specifically referred the applicant to his written claims in his application for a protection visa. The applicant’s evidence was that another person had completed the application on his behalf and that he was not aware of the claims made in the application. The applicant did not provide any evidence in support of his written claims.   

Accepted facts

1. Based on the applicant’s evidence, the Tribunal finds and accepts that the applicant:

   (a)was born on [date] in Saigon, Vietnam and is a citizen of Vietnam.[23]

   (b)can speak, read and write in Vietnamese.[24]

   (c)completed his primary and secondary education in Vietnam.[25]

   (d)has a father and mother who continue to live in Ho Chi Minh City, Vietnam.

   (e)has [specified siblings]. [Specified siblings] continue to live in Vietnam and [one] sister is married and lives in [Town 1], Australia. 

   (f)was married in [year] and divorced in 2004.

   (g)has [specified children] who continue to live in Vietnam.

   (h)worked as [an Occupation 3] until 1992 after which he owned and operated a business selling [specified products].

Applicant’s claims as a refugee

Applicant’s claim within s 5J(1) of the Act

[23]  Part C - Application for a protection visa application form dated 26 June 2017, Dept file [number], Doc ID No: [number].

[24]  Ibid.

[25]  Ibid.

1. The applicant claims to have a well-founded fear of persecution within the scope s 5J(1) of the Act by reason of his political opinion, his religion and membership of a particular social group.

2. As to the applicant’s political opinion it is not necessarily an opinion that is held by the applicant. It is sufficient for his political opinion to be imputed to him by the persecutor.[26] Therefore, while the applicant did not provide any details of his political opinion beyond the fact that he believed the communist government in Vietnam was corrupt and bad, it is open to the applicant to claim that he holds a well-founded fear of being persecuted by the authorities in Vietnam because of his political opinion. As a result, the Tribunal accepts that his claim of having a well-founded fear of persecution because of his political opinion falls within s 5J(1)(a) of the Act.

   [26]   MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416] per Gaudron J and at [433] per McHugh J.

3. In addition, in his written claim the applicant claims to hold a well-founded fear of persecution by reason of his Catholic religion. The scope of ‘religion’ was considered in MIMA v Darboy,[27] within the context of the Convention. In this case the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

   The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

   [27] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]–[22]).

4. However, in his oral evidence to the Tribunal the applicant’s evidence was that he was not a Catholic as claimed in his application for a protection visa. Nevertheless, for the purposes of considering the applicant’s written claims the Tribunal accepts that the applicant’s religion falls with the scope of s 5J(1)(a) of the Act.

Applicant’s well-founded fear

1. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[28]

   [28] Chan Yee Kin v MIEA (1989) 169 CLR 379.

2. In this case, the applicant claims that he will be persecuted if returned to Vietnam by the police because of having attended the Formosa protest. In addition, by his written claims the applicant states that he will be persecuted because of his religion as a Catholic.  For the reasons expressed below, the Tribunal does not accept that there is a real chance the applicant will be seriously harmed if he is returned to Vietnam.  Accordingly, the Tribunal does not accept that the applicant holds any fear of returning to Vietnam on either a subjective or an objective basis.

The Applicant’s claims  

(a)Arrived in Australia to study

1. The applicant in his application for a protection visa claimed that he wanted to leave Vietnam because he did not like the Vietnamese government.  The applicant claimed that living in Australia he came to appreciate the democratic beliefs and human rights in Australia. The applicant claimed that upon his arrival in Australia it was his intention to study to develop his professional skills. However, the applicant did not provide the Tribunal with any evidence of him having attempted to study in Australia and did not express any desire to do so. The applicant’s evidence was that due to his poor English another person had completed his application for a protection visa and that he was not aware of the claims made in his application. Therefore, based on the applicant’s own evidence the Tribunal does not accept his evidence that it was his intention upon arriving in Australia to study.

   (b)Applicant as a Catholic

2. In addition, the applicant claims that he was opposed to the Vietnamese government because as a Catholic his voice and opinions had been suppressed. He claimed that the government had taken away ‘our places of prayers’ and developed them for the purposes of tourism.

3. The applicant claims that he will suffer serious harm because of his Catholic beliefs. The question of whether an applicant has a well-founded fear of being persecuted for reasons of his religion may arise in a variety of circumstances including the application of religious-based laws, departing from orthodox religious beliefs, or transgressing social mores, conversion, apostasy and mixed marriage.[29]  The motivation of the persecutor or how general law is applied is often relevant to whether a persecutory intent exists.[30] Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[31] It requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[32]

   [29] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith per WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.

   [30]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

   [31]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000).

   [32]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

4. In this case however, the applicant’s evidence was that another person had completed his application for protection and that he was not aware of the claims made in his application. The applicant’s evidence to the Tribunal was that he is not a Catholic and that he had not suffered any confiscation of his place of worship as claimed. Therefore, based on the applicant’s own evidence the Tribunal finds that the applicant is not a Catholic as claimed in his application. Accordingly, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Vietnam by reason of his Catholic belief.

   (c)Protesting the atrocity of the Vietnamese Communist government

5. In addition, the applicant claimed in his written application that he often participated in protests against the atrocity of the Vietnamese Communist government. He claimed that on many occasions, with other students and professional workers he was detained for five weeks after participating in the protest. The applicant did not provide any evidence of having often protested the atrocity of the Government. In addition, he did not provide any evidence of having been detained for a period of five weeks because of his participating in such protests. The applicant’s evidence was that he was not responsible for the claims in his application for a protection visa and specifically denied the claims in his application. Rather, as referred to below, it was the applicant’s evidence that he went to one of the Formosa protests as an observer for the department during which he witnessed protestors being assaulted by the police. The applicant’s evidence was he attempted to help one of the protestors upon which he was detained by the police, questioned, and then released on the understanding that he was to be interviewed at a later time. Therefore, based on the applicant’s evidence to the Tribunal it does not accept that the applicant protested the atrocity of the government on many occasions as claimed.  In addition, based on the applicant’s own evidence the Tribunal does not accept that the applicant was detained for a period of five (5) weeks as claimed. As such the Tribunal finds that there is no real chance that the applicant will be seriously harmed by reason of having protested the atrocity of the government on multiple occasions or as a result of being detained for five (5) weeks as claimed.

   (d) Applicant’s family protest

6. Finally, the applicant claimed in his application for protection visa that his family are protesting and demanding the explanation from the Vietnamese government about the toxic environment that the local Vietnamese citizens in Ba Ria - Vung Tau.  The applicant claims that his family members are considered traitors by the government in Vietnam. As referred to above the applicant denied the claim in his application. In addition, he did not provide any evidence of his family having been involved in any type of protests. His evidence was that his mother and father are elderly and retired. There was no evidence that they had been involved in any protest. In addition, there was no evidence that his brother had been involved in any protest as claimed. The applicant’s evidence was that his sister is married and has been living in [Town 1], Victoria for approximately 30 years. As such she could not have been involved in protests as claimed. Therefore, based on the applicant’s evidence to the Tribunal, the Tribunal does not accept that the applicant’s family protested against the Vietnamese government about the toxic environment or are considered traitors as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of his family being involved in protests in Vietnam as claimed.     

   (e)The applicant as an assistant for [a section of the armed forces]

7. The applicant claims that he does not agree with the government in Vietnam and that upon his return to Vietnam he will be arrested and tortured due to his political beliefs. The applicant did not specifically say how he did not agree with the Vietnamese government save to say that since he had been in Australia, he had appreciated the democratic beliefs and the human rights that every Australia citizen enjoys and claimed that the Vietnamese government was authoritarian and unjust.

8. The country information[33] reports that Vietnam is a one-party communist state. The Communist Party of Vietnam (CPV) members hold all senior government and military positions. The National Congress is the CPV’s largest national decision-making body which meets every five years. The Congress comprises 1,600 delegates who elected the 200-member Central Committee which, in turn, elected the (currently) 18-member Politburo, Vietnam’s most powerful decision-making body. The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power.[34]

   [33] DFAT report at p.11.

   [34] Ibid.

9. It’s reported[35] that threats to CPV legitimacy are not tolerated. Membership of the CPV can result in better access to social and economic opportunities, especially for senior positions in Government. As the Vietnamese economy develops and matures, more opportunities in the private sector have become available for non-CPV members.

   [35] DFAT report at p.18.

10. It’s reported[36] that some advocacy and activism for broader human rights issues, such as democracy and individual freedoms do take place. However, most public protests are about practical local issues, such as environmental concerns, development and transport. Street protests do occur but generally such protests now occur online.[37] Recently, widespread anti-China protests occurred relating to fears that China would purchase land under reform rules and against laws that required social media companies like Google and Facebook to store user data domestically.[38]

    [36] Ibid.

    [37] Ibid.

    [38] Ibid.

1. The right to assembly is constitutionally protected in Vietnam but in practice is subject to the Penal Code which prohibits ‘establishing or joining an organisation that [is] against the People’s Government’,[39] ‘making, storing, or spreading information … opposing the State’[40] and ‘abusing democratic freedoms to infringe upon the interests of the state’.[41] These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.[42]

   [39] Article 109 Vietnamese Penal Code.

   [40] Article 117 Vietnamese Penal Code.

   [41] Article 331 Vietnamese Penal Code.

   [42] DFAT Report at p.18.

2. Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.

3. It’s reported[43] that the Formosa chemical spill in 2016 was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea killing sea life causing significant damage to the fishing industry and in particular fishing workers.[44] The company agreed to make compensation to the victims of the spill.[45]  The environmental disaster led to protests demanding more compensation. As a result, both street protestors and online protesters were arrested.  It’s reported that Formosa protests are no longer occurring on a large scale.[46]

   [43] DFAT report at p.20.

   [44] Ibid.

   [45] Ibid.

   [46] Ibid.

4. It’s reported by DFAT[47] that land and environmental protesters face a moderate risk of official discrimination. It reports[48] that those who organise protests and publicly criticise the Government are more likely to face discrimination. Nevertheless, the possibility of a low-level activist being arrested cannot be discounted.[49]

   [47] DFAT report at p.18.

   [48] Ibid.

   [49] Ibid.

5. The applicant’s evidence was that because Vietnam is a communist country it was necessary to seek protection from the authorities. As a result, he stated that he worked as ‘an assistant’ the department. His evidence was that he did not work formally for the department but rather had paid a person money in the department to obtain an identity card that identified him as being associated with the department.  That is, he did not work for the department but merely obtained an identity card and would help it from time to time.

6. The applicant’s evidence in relation to his association with the department was vague and lacking in any detail.  The applicant did not provide the Tribunal with a copy of the identity card and did not provide any evidence as to how long he had been associated with the department, how or who he reported to in the department. The applicant was not able to explain to the Tribunal how, as a person who was engaged in selling [specified products], he was able to perform duties for the department. The applicant merely stated that he would report matters to the department from time to time. The applicant claimed that he would be arrested and harmed upon his return to Vietnam because he had not reported what he saw about the protests to the department. The Tribunal notes that the Formosa protests were well known within Vietnam and attended by large groups of people across the country. As such, there does not appear to be any logical reason why the department required the applicant to report on the Formosa protests as claimed. Accordingly, the Tribunal does not accept the applicant’s evidence that he was reporting on the protest for the department as claimed.

7. The applicant’s evidence in relation to his association with the department lacked credibility. The Tribunal does not accept that the applicant would legitimately and legally be able to obtain an identity card as an associate of the department as claimed. As such, the Tribunal does not accept the applicant’s evidence that he was associated with the department as claimed.  Accordingly, the Tribunal finds that there is no real chance that he will be seriously harmed by the department upon his return to Vietnam as claimed.

8. The applicant’s evidence was he was arrested at the protest by the police but released because of his involvement with the department. Having found that the applicant was not involved with the department as claimed, the Tribunal does not accept his evidence that he was released by the police because of his association with the department.

9. The Tribunal accepts that it’s possible that the applicant was arrested at the protest because he tried to help a protestor who was being assaulted by the police. However, the Tribunal notes that the applicant’s evidence was that he was not charged. He stated that he was released on the understanding that he would be interviewed later. The Tribunal notes that the applicant was able to obtain a passport and leave the country without difficulty. If the applicant had been of any interest to the police as claimed, it’s likely he would have been detained prior to his departure from Vietnam. In any event the country information notes that the Formosa protests have stopped.  There was no evidence to suggest that the applicant was an organiser of the protest and an active advocate against the government. In fact, his evidence was that he was associated with the department and was reporting on the protests on its behalf. As such, the Tribunal does not accept the applicant is of any interest to the authorities in Vietnam because of his attendance at the Formosa protests as claimed. Accordingly, the Tribunal finds that there is no real chance the applicant will suffer serious harm by the police or any other authority if he is returned to Vietnam as claimed.

10. Finally, there was no evidence that the applicant was politically active in Vietnam or during his time in Australia. While the tribunal accepts that he may not agree with the political views of the government in Vietnam there was no evidence to suggest that he was of interest to the authorities because of his views. The applicant was not an organiser of any protests nor was he an advocate against the view of the government. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed because of his political views if he is returned to Vietnam.

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

2. The applicant claims that he satisfies the requirements under s 36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment.  In particular, the applicant claims that there is a real risk he will suffer significant harm for the reasons detailed in his application for a protection visa as expressed above.

1. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[50] It therefore follows, for the reason expressed above, the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm in Vietnam by reason of his political opinion, his religion or as a member of a particular social group. That is there is no real risk the applicant will be significantly harmed by reason of being a Catholic as claimed or because he attended the Formosa protests for the department and was arrested by the police as claimed.

   [50] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

2. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.

3. At no stage did the applicant advance any other reason, in either his written or oral claims, for Australia owing the applicant protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

4. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm as required by s 36(2)(aa).

CONCLUSION

1. 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).

2. 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).

3. There is no suggestion that the applicant satisfies s 36(2) based on 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell

Senior Member

Annexure ‘A’

RECENT HISTORY[51]

[51] DFAT Report p.7.

2.1Vietnam officially gained independence from France in the mid-1950s following the first Indochina War. In 1954, the country was divided into two: the northern Democratic Republic of Vietnam (North Vietnam) and the southern Republic of Vietnam (South Vietnam). At the height of Cold War tensions, the two sides entered what is commonly called the ‘Vietnam War’ in English and ‘the American War’ or ‘Second Indochina War’ in Vietnamese. The war ended in April 1975 when communist forces captured the presidential palace in the southern capital of Saigon (now named Ho Chi Minh City (HCMC)) and reunified North and South Vietnam as the Socialist Republic of Vietnam. The conflict produced significant numbers of refugees who migrated to different countries around the world, including Australia, where they established diaspora communities.

2.2Vietnam and China engaged in border clashes in the years immediately after the Vietnam War. Vietnam invaded Cambodia in 1978 and Cambodia’s ally, China, responded with attacks against several northern provinces of Vietnam. This resulted in a mass-exodus of ethnic Chinese from Vietnam in the late 1970s.

2.3The planned economy stagnated in the first decade of reunification. A series of reforms beginning in 1986 opened the country to foreign investment and achieved enormous economic growth. Vietnam then joined the Association of Southeast Asian Nations (ASEAN) and the World Trade Organization. With economic liberalisation came significant improvements to human development indicators such as health, education and poverty rates, but the Communist Party of Vietnam (CPV) maintains tight political control and the space for political dissent remains limited.

DEMOGRAPHY[52]

[52] Ibid.

2.4Vietnam’s population is about 100 million people. It is a young, largely rural population with about 7 per cent of people older than 65 years and 38 per cent of people living in urban areas. The two largest cities are HCMC with 8.8 million people, and the capital Hanoi with 4.8 million people. The Vietnamese language, based on the Hanoi dialect, is widely spoken throughout the country. For ethnic demography, seeRace/Nationality. For religious demography, see Religion.

ECONOMIC OVERVIEW[53]

[53] Ibid.

2.5According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation………………….

POLITICAL SYSTEM[54]

[54] DFAT Report p.12.

2.28 Vietnam is a one-party communist state. Communist Party of Vietnam (CPV) members hold all senior government and military positions. The National Congress is the CPV’s largest national decision making body. It meets every five years. The most recent Congress was in January/February 2021 and comprised 1,600 delegates. These delegates elected the 200-member Central Committee (the secondhighest decision-making body that meets twice a year) which, in turn, elected the (currently) 18-member Politburo, Vietnam’s most powerful decision-making body.

2.29 The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power. Elections are held for the National Assembly, most recently in May 2021. Ninety-two per cent of candidates in the National Assembly are members of the CPV. Real political power is held in CPV structures rather than the National Assembly.

2.30 Vietnam is politically organised into 58 provinces and 5 municipalities (Hanoi, Haiphong, Da Nang, Ho Chi Minh City and Can Tho). Further subdivisions are districts and communes, which are the smallest level of government that exist in both rural and urban areas.

POLITICAL OPINION (ACTUAL OR IMPUTED)[55]

[55] DFAT Report p.18.

3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.

3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.

3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.

3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .

3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.

3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.

3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.

3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused.

3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

Annexure A

POLITICAL SYSTEM

2.37Vietnam is one of the world's few remaining one-party communist states. Under Article 4 of the Constitution, the CPV remains the country’s only legal political party. The CPV, through official and unofficial channels, controls all major government decisions (including defence and security matters), and CPV members hold all senior government and military positions.

2.38 The National Congress is the CPV’s largest national decision-making body. It comprises around 1,500 delegates and assembles every five years. The 12th CPV Congress was held in January 2016, with the 13th Congress scheduled to meet in 2021. The Congress elects the CPV’s Central Committee, the highest decision-making authority outside the CPV National Congress. The Central Committee currently comprises 180 full and 20 alternate (non-voting) members, and meets twice a year. The Central Committee elects the Politburo, Vietnam’s most powerful political body and the CPV’s decision-making body between Central Committee meetings. The Politburo currently comprises 16 members.

2.39 The four key pillars of power in the Vietnamese system are the General Secretary of the CPV (currently the most powerful position); President (Head of State) concurrently held by the General Secretary since October 2018 following the death of the then-President, the previous month; Prime Minister (Head of Government); and, President of the National Assembly (the national Legislature). The General Secretary, Prime Minister and President of the Assembly are all members of the Politburo. In 2019, the General Secretary reportedly suffered a serious illness and as a result has relied on the Vice President and Head of the Secretariat to support him in fulfilling his leadership roles.

2.40 The 14th National Assembly elections were held in May 2016. An extensive vetting process took place for all candidates, which was led by a CPV-sponsored organisation, the Vietnamese Fatherland Front (VFF). The VFF approved 870 candidates to run; of whom 97 were non-Party members and 11 were self-nominees (162 self-nominees sought approval, an increase on previous elections). Of the 496 elected deputies, 475 are Party members, 21 are non-Party members including only two self-nominated candidates. Subsequent to the 2016 elections, due to illness, death, prosecution and other reasons, the current number of deputies has reduced to 483.

2.41 State-run media reported that 99.35 per cent of the eligible population cast ballots. While the CPV concluded the process was successfully conducted, observers criticised the vetting process for candidates and the tight security and propaganda that prevailed throughout the process. Some critics did not consider the two self-nominated candidates elected to be genuinely independent.

POLITICAL OPINION (ACTUAL OR IMPUTED)

3.46 As noted in Political System, Article 4 of the Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, and there are very few formal avenues for political participation for non-members. The structure of Vietnamese society strongly favours those with CPV ties. After the Vietnam War, trusted CPV members and their families were awarded with prime positions, while Vietnamese previously allied to the US were punished and their children denied opportunities. The importance of CPV membership and loyalty for social and professional advancement endures in current Vietnam. For example, the CPV continues to prohibit membership if one’s parents (or those of a spouse) worked in the Saigon government or ‘armed forces of the enemy.’ Around three-quarters of the current government’s cabinet is from northern Vietnam, with the remainder from the southern and central provinces. The increasingly important private sector, however, is creating alternative pathways to social and professional advancement for non-party members.

3.47 Opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. The Vietnam Reform Revolutionary Party (known as Viet Tan) is a US-based opposition group (also with an active branch in Australia) which advocates for democracy in Vietnam. It is considered a terrorist organisation by the Vietnam government. Members of other foreign-based opposition groups, such as the Brotherhood for Democracy, have also been accused of carrying out activities aimed at overthrowing the government. The Brotherhood for Democracy is reported to have funding links to Viet Tan (see Political Activists).

3.48 Vietnam has made some steps towards greater openness and transparency, and authorities have tolerated criticism of government in some instances. There are limits to dissent, however, and no signs that the CPV is willing to loosen its monopoly on power. Individuals can incur long prison terms for breaching broad national security provisions. A range of high-profile arrests and trials over the recent years have attracted international criticism of Vietnam's one-party political system and its management of freedom of expression of political views and human rights (see Political Activists and Media).

Political Activists

3.49 The Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration. These rights are restricted, however, by a number of ‘national security’ provisions within the Penal Code, namely: Article 109 (‘overthrowing the State’); Article 117 (‘conducting propaganda against the State’); and Article 331 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’). These provisions take precedence over constitutionally enshrined rights in practice, and are commonly applied to activists. The penalties mandated by the provisions remain unchanged, ranging from prison sentences of between six months and 20 years, to life imprisonment or capital punishment (see Death Penalty). Official approval is required for all public gatherings, and authorities routinely deny permission for meetings or marches considered politically sensitive. Police and other security authorities routinely use excessive force to disperse unauthorised demonstrations (see Police).

3.50 Despite legal restrictions and often-severe responses from authorities, citizens do continue to protest, generally in relation to single issue, livelihood-related issues, or occasionally in relation to anti-Chinese sentiment. Hundreds of residents from the central provinces protested regularly in the months following the 2016 Formosa disaster (see Recent History), with some protesters reportedly beaten and arrested by police. Police also reportedly stopped some protesters from marching from central Nghe An Province to Ha Tin Province to submit their compensation claims. Activists and their families in Nghe An Province reported an increased incidence of harassment and assault by local authorities in relation to the Formosa disaster protests.

3.51 Large-scale protests occurred on an unprecedented scale in June 2018 in a series of demonstrations in major cities. Thousands reportedly demonstrated in HCMC, Hanoi, Nha Trang, Binh Thuan Province, and other areas against a proposed special economic zone, with some also protesting against a new restrictive cyber security law (see Media). Police in HCMC reportedly beat and detained around 180 people at a stadium, including individuals who were not activists, while civil society organisations reported that plainclothes police officers also beat protesters. By November 2018, at least 127 people were reported to have been arrested and convicted for their participation in the protests. Many protesters subsequently released by police claim to have been mistreated, harassed, assaulted, and detained in relation to the protests in HCMC.

3.52 Low-level protests also occur periodically over land use and compulsory official land acquisition, occasionally involving violence. Under both the Constitution and the Land Law (2013), all land in Vietnam is formally owned by the State, which issues land use rights to individuals or organisations but retains the right to acquire it compulsorily at any time. The Housing Law and Real Estate Business Law (2014) stipulates that land can only be acquired by government if considered necessary for socioeconomic development that is in the public or national interest. The definition of ‘socioeconomic development’ is ambiguous, however, leading to numerous disputes over land use rights. In one such incident in April 2017, villagers in the Dong Tam commune on the outskirts of Hanoi reportedly detained 38 police officers for one week during a land dispute. The standoff ended after the Hanoi mayor committed to not filing criminal charges against protesters, and to investigating land management in Dong Tam and allegations of police injuring the village leader during the protests.

3.53 Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include:

- In February 2018, a prominent advocate for workers’ rights was sentenced to 14 years’ imprisonment in Nghe An Province for 'resisting persons in the performance of their official duties' (Article 330 of the Penal Code) and for crimes committed under Article 331. The activist sentenced had written about the impact of the Formosa disaster, highlighting the effects on local fishermen and assisting them in seeking justice and compensation;

- In April 2018, an anti-corruption and land rights activist in Thai Binh Province was sentenced to thirteen years’ imprisonment, to be followed by five years’ probation, after being convicted of crimes committed under Article 79 after a trial that lasted only hours. The activist, a member of the Brotherhood for Democracy (see Political Opinion (Actual or imputed)), had published articles denouncing the authorities for corruption and abuses of human rights;

- In August 2018, a human rights and environmental activist from Central Vietnam was convicted of crimes under Article 79 and sentenced to 20 years in prison and 5 years’ house arrest, the longest sentence recorded in years for national security crimes. The activist had joined campaigns in support of prisoners of conscience, had used social media to share information about human rights violations, and had campaigned for compensating fishermen affected by the Formosa disaster. During his trial, state media highlighted his affiliation with the Viet Tan organisation (see Political Opinion (Actual or imputed)). The sentence handed down was three years longer than that requested by the prosecutor, with the court adding more time to the sentence because the activist remained silent during his trial and did not admit any crimes.

- In November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist.

- In November 2019, a prominent activist was taken into custody upon their arrival at Hanoi International Airport, and was released after eight hours of questioning. The activist had left Vietnam in May 2016 to work for a Vietnamese civil society organisation, which campaigns for human rights in Vietnam from abroad.

3.54 In a number of cases, authorities have released activists from prison and forcibly deported them from Vietnam. In May 2017, for example, authorities revoked the citizenship of a Viet Tan member and forcibly deported him to France. In June 2018, a Brotherhood for Democracy leader and his assistant were released from prison in Vietnam and deported to Germany, after having been sentenced in April 2018 to 15 and 9 years’ imprisonment respectively. Conversely, human rights observers report that in other cases authorities have confiscated the passports of activists in order to prevent them from travelling abroad, or have imposed restrictions on their domestic travel within Vietnam. Authorities have also subjected prominent activists to house arrest at sensitive times, including during state visits by foreign leaders. In July 2017, Germany publicly accused Vietnam of abducting an asylum-seeking senior Vietnamese official from Germany and forcibly returning him to Vietnam, after he had fled in 2016 amid accusations of economic mismanagement and had been dismissed from Vietnam’s National Assembly. He was later sentenced to life imprisonment.

3.55 Human rights observers report that lawyers who represent political activists often face harassment from authorities to drop cases. Those who do not do so reportedly face restrictions on their ability to practise, which in some cases can lead to disbarring, arrests and detention. Many lawyers are therefore reluctant to accept these cases.

3.56 DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation, and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.

GROUPS OF INTEREST

Civil Society Organisations

3.57 Article 25 of the Constitution guarantees the right to the freedom of association but, in practice, this freedom is limited by highly restrictive regulations. The CPV prohibits the establishment or operation of independent groups, including civil society organisations (CSOs). The domestic legal framework governing civil society is Decree 45 on the Organization, Activities and Management of Associations (2010), which places a range of limitations on CSO activities. For example, CSOs are prohibited from conducting activities deemed harmful to ‘national security, social order, ethics and national customs and practices.’ CSOs are required to register with the government and to obtain official approval before commencing activities. Decrees 76 and 93, which relate to government oversight of events and funding from foreign sources respectively impact on CSO operations. Local CSOs report that additional permits are generally needed to work in the provinces. CSOs in southern Vietnam reportedly tend to be smaller and less established than those in the north.

3.58 In practice, the government has permitted some space for CSOs working on issues it considers as non-threatening to the CPV and its interests. A small but active civil society in Vietnam works to promote a range of rights, including on gender, the environment, land and health. The restrictive legal framework in Vietnam has limited the formation of independent CSOs, however, and authorities have prohibited the formation or operation of dedicated local human rights organisations. Individuals who criticise the government’s approach to human rights are subject to surveillance; interference with personal communications and freedom of movement; arrest; and imprisonment. A number of CSO representatives involved in Vietnam's UPR process in Geneva in January 2019 reported that they were required to attend an interview with MPS before their departure from Vietnam and/or after their return. DFAT is not aware of any cases in which authorities refused CSO representatives permission to travel.

3.59 Local sources report that authorities have become increasingly discomforted in recent years with the role and activities of CSOs – the term ‘civil society’, itself was among a list of phrases that CPV members were instructed to avoid in a Party directive of December 2017. This attitude has seen the operating environment become considerably more challenging for CSOs, ranging from international NGOs to local unregistered groups. CSOs report that authorities are now enforcing regulations more strictly: previously the absence of an official response to CSOs’ requests for approval to undertake activities could be considered tacit consent; now this is no longer the case. This is particularly true for activities organised in partnership with foreign donors or participants, with several workshops and conferences cosponsored by international organisations or foreign embassies being cancelled or shut down at the last minute. In December 2018, authorities shut down an annual conference of CSO representatives in Hanoi, despite many of the participants being registered organisations and the conference having been held in previous years.

3.60 Authorities have applied these increased restrictions across the board, including on CSOs whose work covers the less-sensitive areas mentioned in 3.58. Many CSOs have reported difficulties and delays both in renewing their registration with the government and in obtaining approvals to undertake activities, which have, in some cases, taken more than six months. In some instances, authorities have either not responded to requests for approval, or have denied them altogether. Sources have reported that some local CSOs have been encouraged to pay bribes to reduce the time taken for project approvals.

3.61 A draft law to regulate all associations and CSOs in Vietnam has been under discussion for a number of years. In late 2016, the draft law put to the National Assembly received strong backlash from civil society groups, due to its recognition of only registered organisations (thus banning unregistered CSOs), the complexity of the registration process for CSOs, and the prohibition against CSOs receiving foreign donor funding. At the time of publication, the National Assembly had not committed to a timeline to reconsider the draft law.

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Arbitrary Arrest and Detention

4.14 The Constitution states that a court or prosecutorial decision is required to arrest an individual, with an exception made for ‘flagrant offenses.’ Under the Penal Code, police can detain an individual without warrant for up to 72 hours in ‘urgent circumstances,’ such as when a person is caught in the act of committing a crime. An approval or disapproval of the arrest from the People’s Procuracy is required, however, within 12 hours of police notification of the arrest. A decision by the People’s Procuracy is required to commence a formal criminal investigation of a detainee within three days of arrest, without which police must release the suspect. The People’s Procuracy can request two additional three-day extensions, therefore increasing the maximum custody period to nine days.

4.15 In practice, suspects are held during investigations for varying lengths of time depending on the level of seriousness of the alleged crime. The Penal Code allows for a detention period of up to 20 months for the investigation of crimes categorised as particularly serious, and for two months (extendable once for an additional two months) for less serious crimes. There is no time restriction for crimes that relate to national security. International observers have reported a number of cases in which the government has exceeded these time periods, including in October 2018 when three human rights activists were convicted and sentenced to lengthy prison terms following an almost two-year period of pre-trial detention. As of May 2019, Amnesty International reported at least 128 prisoners of conscience were incarcerated across the country — up from 97 the previous year. The 88 project, a free speech advocacy group, puts the number even higher, at 266 activists behind bars. In June 2019, an American citizen was sentenced to 12 years in prison for "attempting to overthrow the state", having being detained since July 2018.

4.16 Detainees can question the legality of their detention with the relevant authorities, but this right is denied to political prisoners. Access to legal representation is reportedly granted inconsistently. Those held on national security charges (under Chapter 8 of the 2015 Penal Code) can be denied access to legal representation until the investigation is fully complete under Article 74 of the 2015 Criminal Procedure Code. In one case, a human rights activist arrested in July 2017 was prevented from meeting his lawyer until July 2018, and was then sentenced a month later to 20 years’ imprisonment (see Judiciary). The Vietnamese-Australian dual citizen sentenced to twelve years’ imprisonment in November 2019 on terrorism charges (see Political Activists) was not given access to a lawyer, in accordance with Vietnamese law, until the end of the investigation process.

4.17 The Law on Administrative Violations (2012) authorises the arbitrary ‘administrative detention’ without trial of individuals considered threats to security, social order, or public safety. In theory, administrative detention is intended as punishment for people who have committed public order offences that do not warrant criminal prosecution. In practice, however, administrative detention is often imposed in cases where there is insufficient evidence for a conviction on criminal charges. While administrative detainees are typically detained by police, administrative detention centres are not part of the criminal justice system. The law outlines penalties for administrative detainees, ranging from fines and warnings to re-education and compulsory detention. State media reported that authorities imposed ‘administrative punishments’ on 175 protesters arrested in HCMC in June 2018 on suspicion of ‘violating laws at different levels, from harming national security to affecting social order and safety’.

4.18 International observers report that arbitrary arrest and detention has been commonly employed against political and religious activists and individuals protesting land seizures (see Political Activists and Religion). Individuals have been arbitrarily detained in their homes, in vehicles, at local police stations, social protection centres (for the homeless), and local government offices, and upon return to Vietnam following overseas travel. Human rights observers have also reported cases of activists taken into custody by plainclothes individuals without an arrest warrant. Some drug users have reportedly been detained in ‘06 centres’ without charge and with limited judicial involvement (see Health).

STATE PROTECTION

Military

5.1 Although Vietnam’s official defence budget is a state secret, its publicly released budget shows that military spending has increased substantially from VND20.5 trillion (approximately AUD1.8 billion) in 2006 to VND100 trillion (approximately AUD6.6 billion) in 2015. International observers estimated it will reach VND140 trillion (AUD8.7 billion) by 2020.

5.2 The Vietnam People’s Army (VPA) includes a large ground force component, and has the most personnel of Vietnam’s services. The Vietnam People’s Navy and Naval Infantry are responsible for safeguarding the waters and airspace over the waters belonging to Vietnam, and for maintaining coordination with other maritime forces (such as the police, customs service, border defence force, and maritime police) to control national waters and economic activities at sea. The Border Defence Command is a component of the VPA, and is responsible for controlling and protecting security along land borders, islands, territorial waters, and border gates. In practice, all other services are subordinate to the VPA. The Minister of National Defence is responsible for directing and administering the VPA.

5.3 Military service is compulsory for males aged 18 to 25 years, and females can volunteer for active duty military service. The period of service depends on the force: 18 months for the VPA and Air Defence, and two years for the Navy and Air Force. Exemptions are available on several grounds, including for university students and people employed in certain professions. In practice, DFAT understands that while all males must register with the military, very few are required to serve for the full military service period. The US Department of State reported in 2018 that religious adherents are regularly excluded from military recruitment, and are not permitted to be commissioned officers. Local media reported in 2017 that enlistment had become stricter in recent years after legislators had accused wealthy families of paying bribes in order for their children to avoid military service.

5.4 In March 2019, the online newspaper of the Vietnamese Armed Forces reportedly accused some independent newspapers, media, and civil society organisations of misrepresenting information about the CPV and the government by portraying them in a negative light. The article implied the activists and journalists operating the organisations would face criminal prosecution, although DFAT is unaware of whether any prosecutions eventuated.

5.5 DFAT assesses that the military has a strong ability to provide protection to civilians, but is highly influenced by the CPV.

Police

5.6 The MPS manages the People’s Public Security Forces of Vietnam (PPSFV), the country’s main police and security force. It comprises two core forces: the People’s Security Force primarily collects intelligence to detect activities that damage national security; while the People’s Police Force is responsible for social order and public safety and manages more traditional police work, including criminal investigations, neighbourhood policing, traffic control, household registration, and identification cards. Police recruits are required to be members of the CPV or Communist Youth League.

5.7 The PPSFV operates at national, provincial, district, and commune levels. Commune police often have lower salaries and fewer benefits than police at the district, provincial, and national levels and generally receive inadequate training in law and basic police procedures. Provincial and local police forces have a high degree of discretion in their activities. International observers report that corruption is highly prevalent within the ranks of the police. Sources have reported recent cases of organised crime groups bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help. Sources have also reported that local police sometimes use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and religious adherents perceived as undesirable or a threat to national security.

5.8 The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice, police organisations operate with significant discretion and little transparency. Human rights groups have reported multiple recent cases of police abuse where officers have acted with impunity. In the rare cases where officers are prosecuted and convicted, light or suspended sentences or internal disciplinary measures such as warnings are commonly applied. There is no independent police complaint agency to investigate allegations of police abuse by ordinary citizens.

5.9 DFAT assesses that police have a limited ability to provide protection to civilians, particularly at the commune level, are vulnerable to corruption, and typically act with impunity.

Judiciary

5.10 Vietnam has a two-tier court system, including courts of first instance and courts of appeal. It consists of the Supreme People’s Court, which is the highest court of appeal and review; Provincial People’s Courts, which serve as the appellate courts for district cases and the courts of first instance for more high profile cases; local people’s courts; and other tribunals established by law to adjudicate on specific issues. Each district throughout the country has a district people’s court, which serves as the court of first instance for most domestic, civil and criminal cases.

5.11 Prosecutions are managed by the Supreme People’s Procuracy, which has broad ranging powers to bring charges against suspects and also serves as prosecutor during trials. A judging council, made up of a judge and one or more people's jurors, determines guilt or innocence, and passes sentence on the convicted. The relevant people’s council appoints people’s jurors.

5.12 Ongoing reforms have given the judiciary some independence from the CPV and other state agencies, including the Supreme People’s Procuracy. Most judges still tend to be CPV members, however, chosen in part for their political views and affiliations, and as such are subject to political influence from the local and central levels. Judicial appointments are typically a five-year term, after which reappointments are made by the CPV.

5.13 Judges and arbitrators are sometimes inadequately trained, and this lack of experience and independence creates varying quality in court processes and inconsistent implementation of law. Judicial officers are reportedly paid extremely low wages. Bribes and irregular payments to facilitate favourable judicial decisions are perceived to be common. According to a 2017 Transparency International survey, around a quarter of Vietnamese citizens believe most or all judges are corrupt.

5.14 The Constitution provides defendants the right to legal counsel, but many lawyers are reluctant to accept human rights or other sensitive cases for fear of harassment from the authorities (see Political Activists), including in some cases involving minors or the death penalty. According to official statistics, accused persons use a lawyer in only around a fifth of criminal cases. While mechanisms exist for pursuing civil action against abuses by authorities, in practice few victims have successfully received redress or compensation through the court system.

5.15 DFAT assesses that the judicial system in Vietnam has limited capacity to provide state protection, and citizens generally have limited access to legal counsel. In cases that are politically sensitive, the judicial system cannot be relied upon to provide an independent and fair outcome. DFAT further assesses that corruption within the judicial system may impinge on the prospects for a fair trial.

Detention and Prison

5.16 The MPS has responsibility for Vietnam’s prisons, which are run by the Department of Prison Management and prison conditions vary substantially by prison and province. There is no independent oversight mechanism for prison management. Although official statistics are not available, government reporting suggests the prison population in Vietnam is just under 150,000 people. Men and women are generally detained separately, as are juvenile and adult prisoners. Prison authorities have reportedly placed some transgender individuals in solitary confinement, due to confusion about whether they should be detained with men or women. Prisoners are further categorised based on the crime, their sentence, health and other individual factors, and usually share cells with 20 to 40 inmates. The International Committee of the Red Cross is permitted to undertake prison visits, but it reportedly neither requested nor carried out prison visits during 2018. Diplomatic representatives conducted supervised visits in 2018 to several political prisoners at both temporary and long-term detention facilities. However, such visits do not afford the opportunity for independent assessment of the prisoners or prison conditions.

5.17 Prison conditions in Vietnam are considered harsh, but generally not life threatening, with issues of overcrowding, poor sanitary conditions, insufficient diet and lack of access to potable water. A MPS report of 2017 acknowledged a lack of quality infrastructure and overcrowding as ongoing challenges for the prison system. Adult prisoners are generally required to work for eight hours a day, five days a week, without pay and primarily in agricultural and manufacturing work. Healthcare is often inadequate. Prisoners at Nghe An Prison Number 6 went on a hunger strike in July 2019 to protest the lack of access to fans to deal with crippling heat in the prison.

5.18 The living conditions for political prisoners and death row inmates are typically harsher than those for general inmates. Political prisoners (estimated at 244 inmates in December 2018, see Political Activists) are commonly held in small groups separate from general inmates, and can experience harassment and violence from both authorities and other inmates. Former political prisoners have reported receiving less and inferior food to other inmates, although some prisoners were able to receive additional food or other preferential treatment through bribing prison officials. International observers have reported cases of prison authorities revoking, denying, or delaying visitation rights, and restricting family from providing permissible items to detainees. Political prisoners are also commonly detained far from their hometowns to limit family access, and their families are not routinely advised of transfers to other prisons. According to international observers, solitary confinement is used for standard periods of three months for general inmates and for more extended periods for political prisoners. Death row inmates are also detained separately from general inmates. They are only permitted to leave their cells for medical treatment, and be visited by immediate family members for no more than one hour per month. Death row inmates who violate prison rules can be punished by shackling, or restricting communications with family.

INTERNAL RELOCATION

5.19 While the Constitution allows for freedom of movement, citizens staying overnight away from their place of residence are required to register with local police. Authorities reportedly enforce this requirement more strictly in some Central and Northern Highlands districts. Citizens who fail to register movements are subject to fines, and may face difficulties in accessing legal residence permits, public education and health care. Authorities also require citizens to obtain a permit to visit sensitive locations, including border areas, defence facilities, industrial zones involved in national defence, areas of ‘national strategic storage,’ and ‘works of extreme importance for political, economic, cultural, and social purposes.’

5.20 Authorities have imposed additional restrictions on the movement of activists, or those convicted under national security or related charges. This has reportedly included holding individuals under house arrest, particularly during politically sensitive periods, or confiscating national identity cards to prevent individuals from accessing domestic air travel or conducting routine matters. There were multiple reports in 2018 of police checking residency registration as a means of intimidating and harassing activists, and to prevent them from travelling outside of their place of registration.

5.21 Vietnam is experiencing increasing migration and mobility, including internal migration. Rapid economic development and increasing job opportunities are generating large migration flows from rural to urban and peri-urban regions. There are an estimated six million internal migrants, though the number is likely substantially higher including unregistered migrants. Government figures report around 25 to 30 per cent of Vietnam’s largest city populations are comprised of migrants. Younger members of ethnic minority groups schooled in the Vietnamese language are more likely to overcome linguistic and cultural barriers associated with relocation.

5.22 The growth in migration has also fuelled human trafficking, including internal trafficking from rural areas to cities, particularly Hanoi and HCMC. In-country sources have also reported cases of individuals from the Central and South Central provinces being trafficked to work in the mining sector. Women and young girls are also trafficked to urban areas for prostitution.

5.23 DFAT assesses that the strong and effective Vietnamese public security network means that there are few options for internal relocation to seek protection from state authorities.