1815118 (Refugee)

[2021] AATA 2814

1815118 (Refugee) [2021] AATA 2814 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815118

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:James Lambie

DATE:20 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 20 July 2021 at 3:02pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – religion – Roman Catholic – no personal harm in home country and low-level membership and activity in Australia – imputed political opinion – low-level participation in protests in Australia and limited knowledge of issues – activities towards strengthening protection claim – domestic violence by father – children born in Australia – returned failed asylum seeker – department’s data breach – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 36, 45AA, 65, 91R, 91S
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES
MIBP v SZTZI [2016] HCA 29
MIEA v Guo (1997) 191 CLR 559
MZYPA v MIAC [2012] FMCA 43
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant], who claims to be citizen of Vietnam, applied for the visa on 13 June 2014 and the delegate refused to grant the visa on 13 January 2016.

3. [The applicant] applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. This matter was remitted to this Tribunal by the Federal Circuit Court of Australia on 21 May 2018.

5. [The applicant] appeared before the Tribunal on 4 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. [The applicant] was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

21. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether [the applicant] meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims

23. [The applicant]’s claims are summarised in the delegate’s decision, the decision of the previous Tribunal and her protection visa application.

24. [The applicant] is a [Age]-year-old Vietnamese woman who left Vietnam legally by crossing the border into [Country]. She arrived in Australia by direct entry [in] May 2013, before the excision of the Australian mainland from the migration zone on 20 May 2013.

25. She claims to be a practising Catholic who has suffered prejudice, discrimination and persecution by reason of her religion, having witnessed violence against parishioners when she was 15 years old and also hearing about incidents in other parishes.

26. [The applicant] also claims to fear returning to her family’s home because of her father’s violence to her.

27. Since arriving in Australia, [the applicant] has participated in some political activities and claims to fear that the Vietnamese government would cause her harm by reason of her imputed political opinion, her status as an asylum seeker in Australia, and her husband’s political profile.

    Evidence 

28. The Tribunal has before it a range of material, including, relevantly:

    a)[The applicant]’s protection visa application, which was lodged on 13 June 2014;

    b)The applicant’s identity documents being a copy of her Vietnamese national identity card and high school certificate;

    c)The protection visa decision record dated 13 January 2016 (the delegate’s decision record);

    d)The previous Tribunal’s decision record dated 1 December 2016;

    e)The application for review form dated 18 July 2018;

    f)Department file [number] concerning [the applicant]’s protection visa application;

    g)AAT file 1601614 containing material lodged by [the applicant] or on her behalf;

    h)A letter of support from [Mr A] and a selection of photographs of [the applicant] engaged in protest activity;

    i)Material lodged by [the applicant] after the hearing, comprising further photographs, screenshots of text messages, and copies of pamphlets and media articles, referred to in more detail below.

    j)Country information from the latest DFAT Country Information Report on Vietnam, published on 13 December 2019 (DFAT Report on Vietnam) and other sources, referred to below.

    Country of reference / receiving country:

29. [The applicant] claims to be a citizen of Vietnam. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

30. The Tribunal is satisfied on the basis of the evidence before it that [the applicant] does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Assessment of claims and evidence, and findings:

31. The mere fact that a person claims fear of persecution for a particular 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).

32. [The applicant] did not make fresh submissions in respect of her application to this Tribunal but indicated that she intended to rely substantially on her claims previously considered by the delegate and the earlier Tribunal. The exception to this is the new material submitted in respect of her claimed imputed political opinion.

    Claims relating to practising religion

33. [The applicant] claims to have been a practising Catholic all her life. She said that one of her uncles is a priest in Vietnam and that, from the time she was very young, she attended her local church, [Name] in Nghe An, regularly. Since arriving in Australia, she claims to have regularly attended church at [Suburb]. While her knowledge of the clerical and lay staff of the church was surprisingly limited, and she did not produce a letter of support or any other evidence of membership, I accept that she is a practising member of the church.

34. While in Vietnam, she claims that, when she was about [age] years old, she witnessed strangers coming into her church and abusing parishioners, including physical abuse. She believes these people were working for the authorities, because the Catholic faith is not welcome in Vietnam. I accept that this incident occurred and that it caused her a sense of fear.

35. She claimed that Catholics are discriminated against in Vietnam, and that educational and job opportunities are denied to them. She said that, in order to obtain membership of the Communist Party, one had to relinquish one’s religion. When asked for an example of discrimination, she claimed that an older cousin of hers with a higher university degree could not find a job. When asked how this squared with her claim that Catholics were denied educational opportunities, she told the Tribunal that she no longer maintained that particular claim.

36. [The applicant] was asked whether she had any first-hand experience of discrimination or persecution by reason of her membership of the church. She said that she could not point to any educational discrimination, although she believed that she would not have been allowed to join the Communist Party. She did not attempt to join this organisation. When asked again whether she had any first-hand experience of anti-Catholic discrimination, she replied in the negative and said that she depends on other people’s accounts of what may happen to Catholics when they return to Vietnam.

37. She was reminded that, on previous occasions, she had claimed that Catholics are denied public sector jobs.  She admitted that, if she had claimed this, she had no first-hand knowledge, not having applied for such a job. After leaving school she obtained work in a [factory] and her faith was no obstacle to this. She was also reminded that she had previously claimed that police had failed to respond to her claims of family violence because of her Catholicism.  She said that, previous decision-makers having rejected this claim, she did not seek to repeat it. 

38. [The applicant] claimed that a further example of anti-Catholic discrimination in Vietnam included officials extorting bribes from her family when they sought government papers such as birth certificates and household registration booklets. When it was put to her that country information is to the effect that corruption generally is widespread and entrenched in Vietnam[1], she replied that she felt that it just happened to her family.

    [1] DFAT Country Information Report: Vietnam (13 December 2019), 2.18

39. [The applicant] also claimed that there were problems establishing the church in her village, involving a long and difficult application process. She relied upon others telling her about this, not having any first-hand knowledge. However, she said this official attitude was reflected in land disputes that had given rise to protests and police reaction. It was put to her that country information was to the effect that the land disputes in and around her home province had been resolved by 2013 and that government and church relations had been improving. She claimed that she had seen on social media that the land disputes are ongoing but conceded that she had no evidence of this.

40. The Tribunal put to [the applicant] that country information was to the effect that participation in registered religious organisations such as the Catholic Church does not generally cause serious disadvantage to individuals and that many Catholics have achieved high positions in Vietnam. She maintained that Catholics are disadvantaged.

41. The DFAT report “assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from the authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.”[2]

    [2] Ibid, 3.37

42. The United States Department of State 2019 Report on International Religious Freedom: Vietnam observes:

    most representatives of religious groups continue to report that adherence to a registered religious group generally did not seriously disadvantage individuals in non-governmental civil, economic, and secular life, but that adherence to an unregistered group was more disadvantageous. Practitioners of various registered religious groups served in local and provincial government positions and were represented in the National Assembly… High-ranking government officials sent greetings and visited churches during Christmas and Easter…[3]

    [3] United States Department of State 2019 Report on International Religious Freedom: Vietnam, p. 19

1. In view of [the applicant]’s evidence that she had not experienced discrimination on the basis of her Catholic faith, and the relevant country information, I am not satisfied that she has a well-founded fear of persecution on the ground claimed, or that she would be prohibited from practising her religion.

   Claims relating to her husband

2. [The applicant] married [Mr B], who arrived on the same boat as her, [in] February 2015.  They have two children born in Australia.

3. [The applicant] has claimed that, in Vietnam, her husband organised protests and demonstrations against the government in relation to the government’s proposed use of cemetery land. She claims that a warrant was issued for his arrest in respect of the protest activity. No further details were supplied to the previous Tribunal or in support of the current application.

4. [The applicant], when asked, said that she maintained this claim.

5. [Mr B] did not attend the hearing to give evidence in support of [the applicant]’s claims. She claimed he was busy looking after the children.

6. [Mr B]’s own application for a protection visa was dismissed on his failure to appear for a hearing on 20 October 2016 and no application was made for reinstatement. [The applicant] claimed that he never received notice of his hearing or dismissal, which seems surprising given that it appears from Tribunal files that she made contact with the Tribunal to seek a deferral of her first scheduled hearing on the same day he was due to appear.  She did not provide any evidence or details to the Tribunal in respect of the claim.

7. There being no material evidence to support this claim, I cannot be satisfied that there is any substance to it.

   Imputed political opinion

8. In the material before the delegate, [the applicant] claimed to have attended a protest outside the Vietnamese Embassy in Canberra in April 2015. The delegate was not satisfied that the protest took place as described by [the applicant], nor that she attended it.

9. Before the previous Tribunal, [the applicant] reiterated this claim in her statutory declaration dated 10 August 2015 and in her oral evidence. She did not claim to have participated in any political activity in the meantime because she had just started working and did not have any time. At this time, she was living in Melbourne. She had no social media profile to speak of and was unable to provide any further evidence of the April 2015 protest other than some very vague claims of the activities she said she undertook.

10. In support of the current application, [the applicant] submitted a letter from [Mr A], [Official] of [Organisation 1], dated 22 July 2020. [Mr A] says that, since June 2018, his organisation has helped to organise “many protest demonstrations and vigil candlelight events” to:

    ·protest against the decision of the Vietnamese Communist government to create and lease three special economic zones to China for 99 years. This is an action to cover up the sale of Vietnam to Communist China;

    ·protest against the Vietnamese Cyber Law. This law blatantly violated the freedom of speech and help the Vietnamese Communist Party evading the opposition from the people;

    ·protest against and alert on the Communist China world domination policy and interfering to other countries internal affairs, including Australia [sic].

11. [Mr A] describes how [the applicant] has been an active participant in organising and promoting events, and has handed out leaflets to commuters on the day of the events. He also claims:

    [The applicant] has played a big part in organising multiple talks for different political activists who came to visit our community from all over the world with multiple topics, such as how to overturn the Vietnamese Communist Party and release our people from dictatorship, bring freedom and human rights for our people in Vietnam. These events were broadcast on multiple social media channels, such as YouTube, Facebook, Twitter, radio and newspapers for people around the world to follow.

    With the way [the applicant] expressing her clear objections against the Communist Government related to human rights and democracy issues in Vietnam, I believed that she will be in danger not just to herself but also to the welfare of her children if they are to returned to Vietnam [sic].

12. [Mr A]’s description of [the applicant]’s political activities are considerably in excess of those she claimed for herself at the hearing. They are also considerably in excess of the material she provided in support of her claims to have been politically active. She claimed to have attended no more than two or possibly three demonstrations. She was photographed at two of them. With her post hearing submission, [the applicant] included:

    ·screenshots of a group chat relating to [Mr A]’s organisation of an event in March 2020 in which it is not apparent that [the applicant] is a participant;

    ·copies of press releases dated [August] 2018 and [November] 2019 issued by [Organisation 2], naming [Mr A] as the contact, and some pamphlets associated with those events;

    ·undated photographs of [the applicant] at two events; and

    ·a selection of articles relating to a variety of political issues relevant to Vietnam.

13. At the hearing, [the applicant] showed limited familiarity with the issues the subject of the protests, which were elicited from her only by specific questioning and responded to with the briefest details. For example, she admitted knowing nothing about the Formosa environmental disaster – the first political issue she mentioned – other than that some waste had gone to the sea.  She demonstrated no identifiable passion for any of the subjects.  She did not produce any copies of the Facebook posts she claimed to have made. 

14. [The applicant] further claimed that the photographs depicting her in attendance at the political demonstrations had been shared on social media and would therefore be available to the Vietnamese authorities who would use them to persecute her. There is no evidence that any of the photographs have been shared on social media.

15. In these circumstances, I give very little weight to her claims of political activism, or that they could give rise to an imputed political opinion as a ground for possible discrimination or persecution should she return to Vietnam now or in the reasonably foreseeable future.

16. It was put to [the applicant] that all of her protest activity was directed towards strengthening her protection visa claims rather than reflecting any genuine political opinion. She denied this. She said that the protest on special economic zones in Vietnam opened her eyes to an issue that young people cared about and inspired her to become more involved.  She did not volunteer any information as to what concerned her about special economic zones, other than to mention freedom of speech. When asked why it was that her political activity only stepped up, and then only in a minimalist way, following the remittal of her claim to this Tribunal by the Court, she claimed that before 2018 she had been living in Melbourne and the Melbourne Vietnamese community was not politically active and that the only protests in which they were involved took place in Canberra.  The Melbourne Vietnamese community being considerably larger and there being no evidence of, or explanation for, it being less active than that in Brisbane, I do not accept this explanation.

17. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.

18. Taking into account [the applicant]’s limited knowledge of the issues the subject of the claimed protest activity, the exaggerated claims made by her and on her behalf relating to the level of her involvement, her implausible explanations for the timing of her involvement, and the heavy reliance on the photographs covering only two occasions, she has failed to satisfy me that she has engaged in her protest activity otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Convention. Accordingly, once [the applicant]’s, albeit limited, political activity is disregarded, there is no evidence to support her claims to a well-founded fear of being persecuted for her imputed political opinion.

19. Because s.91R(3) applies only to Refugee Convention reasons, it is necessary to consider the effect of [the applicant]’s activities in Australia against the complementary protection criteria. Country information suggests that the Vietnamese government posts Ministry of Public Security personnel to embassies and consulates with the task of monitoring the activities of overseas Vietnamese citizens. Even students living abroad are asked to report their fellow citizens. But the same source distinguishes between anti-regime activities and critical views of the government. That the applicant appeared in protests with numerous others, and that there is no evidence of media or even social media coverage, leads me to conclude that as result of her isolated attendance at these events she would not be known to the authorities is conducting antiregime activities, but rather holding critical views, and therefore does not face a real risk of significant harm.

    Fear of domestic/family violence at the hands of her father

20. [The applicant] did not raise this claim at the hearing until prompted by the Tribunal. She said that her father would get drunk and hit her with his hands or whatever he could grab. She said that she was the only one who would be treated this way, and that her father would not hit her brothers but on occasion had hit her mother. She said that only her mother had tried to protect her. She did not volunteer how often this had occurred and could not recall how old she was the last time this happened, even after repeated questions and prompts. An incident related to the delegate, that her father had pushed her down on the exhaust pipe of a motorcycle, she did not recall until prompted. It was put to her that her previous evidence was that she was very young when the violence ceased. She had no details to offer in response to this, other than to say she accepted that her claims may be difficult to credit.

21. In view of [the applicant]’s evidence, I do find her claims of domestic violence at the hands of her father difficult to credit. The details were extremely vague, and she did not even venture that she maintained her claims of fearing coming to harm at his hands should she return to Vietnam. She offered no suggestion as to why, her father’s violence having ceased when she was (on the basis of evidence previously presented) no older than 9 or 10, she might fear the resumption of the claimed violence as an adult married woman with children.

22. Previously, [the applicant] had claimed that one of the reasons she feared returning to Vietnam was that her husband would be arrested on their return and she would be forced to live with her father. She did not mention this aspect of the claim at the hearing and, for the reasons given in paragraphs 44 to 49 above, there is no evidence that her husband would be arrested and that therefore she would be required to live with her parents.

23. In view of [the applicant]’s evidence, I cannot be satisfied she has a genuine fear of coming to harm the hands of her father. Nor can I be satisfied that she has a genuine fear that the arrest of her husband on their return to Vietnam would expose her to domestic or family violence.

    Claims related to the applicant’s status as a returned asylum seeker

24. [The applicant] submitted, should she return to Vietnam as a failed asylum seeker, that she would be detained and subjected to persecution at the hands of the Vietnamese authorities. Further, her children, who only have Australian birth certificates, would be subjected to adverse consequences because of the uncertainty relating to their nationality. She claimed that, whether or not they were detained with her, they face the risk of coming to serious harm.

25. [The applicant] had no direct personal evidence to provide in relation to these claims.  She acknowledged that her claims were based on what she had heard from others. The Country Information Report notes at 5.29 to 5.31:

    DFAT is unaware of any cases where [the Penal Code] provisions have been used against failed asylum seekers return from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection …

    In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. According to sources in Vietnam, any returnees with travel document concerns a question that interview rooms at airports. DFAT understands that would-be migrants who have employed the services of people smugglers typically only face an administrative fine, including in cases of multiple illegal departures.

    DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between 1 to 2 hours, and focuses on obtaining information about the facilitation of any illegal movement on their part.  DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.

26. At 5.35, the Country Information Report continues:

    DFAT assesses that the government typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves. Such individuals are unlikely to be subjected to the penalties allowed in the law for illegally departing Vietnam.  DFAT assesses that long-term detention, investigation, and arrest is generally conducted only in relation to those suspected of involvement in organising people smuggling operations.

27. When the gist of the country information was put to [the applicant], she responded that the country information was wrong and that she had heard that people just disappeared on their return to Vietnam and that the government does not admit this to foreign governments. Although she did not directly mention her sources for such a belief at the hearing, I have had regard to the media articles she included with her post hearing submission.  [The applicant] included an online article from the Guardian dated 24 May 2016 titled “Vietnamese asylum seekers forcibly returned by Australia face jail”.  It claims that four people face imprisonment as the organisers of an intercepted irregular maritime voyage.  If this is the case, this is consistent with the Country Information Report quoted at paragraph 68 above.  There is no confirmation, and no subsequent information has been submitted to the effect, that any proceedings were brought against those involved in the voyage otherwise than as organisers.

28. In the circumstances, I give more credit to the Country Information Report than to the evidence of [the applicant].  I am not satisfied that she will be detained and/or fined as a failed asylum seeker on her return to Vietnam. 

29. In relation to the position of her children, [the applicant] did not submit any information in support of her claim. The applicants’ parents were Vietnamese citizens in Australia at the time the applicants were born. Neither parent is an Australian citizen or permanent resident.

30. Article 14 of the Law on Vietnamese Nationality provides that, inter alia, a person is determined to have Vietnamese nationality on the grounds of birth, as [relevantly] prescribed in article 15. Article 15 provides that a child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese nationality.[4]

    [4] Ministry of Justice (Socialist Republic of Vietnam), Law on Vietnamese Nationality pursuant to the 1992 Constitution of Vietnam under Resolution No. 51-2001-QH10, 1 July 2009.

31. The decree on Civic Status Registration of the Government of Vietnam, Article 17 (Competence in Birth Registration) provides that: “birth registration shall be carried out at the People’s committee of the commune where the mother has her permanent residence certificate or where the child is born.” The time limit for birth registration is, usually, within 30 days but provision is made under Articles 59 to 62 for the overdue registration of births. This requires an explanation for the overdue registration together with the birth certificate issued by the medical establishment where the child was born, the parents’ marriage certificate if it exists, the household register of the mother, and the identity card of the person making the birth declaration. A Vietnamese birth certificate will then issue within seven days.  Country information is that returnees who are failed asylum seekers are able to obtain household registration if their previous registration has lapsed.[5]

    [5] Department of Foreign Affairs and Trade (DFAT), RRT Country Information Request VNM39900, 5 March 2012.

32. I am therefore not satisfied that [the applicant]’s children will be subjected to adverse treatment because of her status as a returned asylum seeker, nor that they will be denied public services and essential rights such as an education, nor that they will be orphaned, abandoned or imprisoned with their mother.  I am also not satisfied that [the applicant] will be subjected to any treatment which would deprive them of their basic needs, or expose them to significant economic hardship, or threaten their capacity to subsist. Therefore, I am not satisfied that the claimed well-founded fear exists.

    Technical error leading to disclosure of applicant’s name

33. This ground was not expressly pressed in submissions or at the hearing. However, I have had regard to a letter from the Department of Immigration and Border Protection, dated 12 March 2014, on the Department file and the matters it raises, which were discussed in the decision of the previous Tribunal. The letter advises that, in February 2014, a routine report released on the Department’s website unintentionally enabled access to some personal information about people who are in immigration detention on 31 January 2014. The letter advises that “the information did not include the applicant’s address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that she or any other person may have made, and did not include any other information such as health information.”

34. An investigation of the incident conducted by the Australian Privacy Commissioner found that the accessible information related to 9258 people and included full names, gender, citizenship, date of birth, period of immigration detention, location, boat arrival details and reasons why the individual was deemed unlawful.[6]

    [6] Office of the Australian Information Commissioner, ‘Department of Immigration and Border Protection:  own motion investigation report’ November 2014.

35. In Minister for Immigration and Border Protection v SZTZI[7], the High Court of Australia noted that an assumption that a foreign government had access to information, “was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the department’s website, the document containing the personal information of the 9258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time.”

    [7] [2016] HCA 29 at [90]

1. I therefore accept that there is a statistical possibility that [the applicant]’s name could have been accessed by a person or persons in Vietnam with interest in the fact of the [the applicant]’s circumstances. However, there being no suggestion that she was involved in the organisation of people trafficking (see paragraph 68 above), I am not satisfied that any appreciable risk to her from the Vietnamese government or any other person or entity arises from the data leak.

   Cumulative profile

2. The Refugee Law Guidelines, at 3-11, state:

   [I]t would be wrong to simply consider the individual circumstances put forward by an applicant, and accepted by the decision maker, as being grounds for a well-founded fear of persecution in the future, without considering those circumstances cumulatively. This is particularly so where an applicant claims that the aggregation of past incidents suggests that he or she was targeted for harm. In a complex case where an applicant faces multi-faceted risks which may interact and interrelate, a cumulative assessment requires an active intellectual engagement with the issues when considered cumulatively.

3. I have considered each of the applicant’s claims in detail above.  I have also considered, for the purposes of the cumulation claim, the extent to which they might be interrelated and whether the totality of their circumstances may give rise to a well-founded fear of harm or persecution.  While the claims have been presented in a way that suggests a degree of interrelation (e.g., that of an imputed political position arising from her sur place activities, and of religious practice), I am of the view that first I must be satisfied of the existence of each of the heads of claim:  MZYPA v MIAC [2012] FMCA 43 at [58].

4. [The applicant] not having satisfied me that she holds well-founded fears arising from the practice of her religion, her claimed imputed political opinions, her claimed exposure to domestic or family violence, her membership of the claimed social group of returned asylum seekers, or possible government access to her details by way of the data leak, I am not satisfied that any well-founded fear arises from the cumulation of her claims.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?

5. The Tribunal has considered the [the applicant]’s claims in terms of complementary protection.

6. Having regard to the findings of fact above, I do not accept that she left Vietnam because she feared for her physical safety.

7. In view of these findings, I am not satisfied that there is a real risk that she will suffer significant harm for any of the reasons claimed if she returns to Vietnam now or in the reasonably foreseeable future. Having considered all of her claims, individually and cumulatively, and all of the evidence, as well as having considered her personal circumstances, I am not satisfied that she will be arbitrarily deprived of her life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment, or she will be subjected to degrading treatment or punishment if she returns to Taiwan now or in the reasonably foreseeable future.

   Conclusion: refugee criterion

8. In view of the findings above, the Tribunal finds there is not a real chance that [the applicant] will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group).  Her fear of persecution is not well-founded as required by s.5J of the Act and, therefore, she is not a refugee within the meaning of s.5H.

   Conclusion: complementary protection

9. I have considered the [the applicant]’s circumstances both individually and cumulatively, and the country information, as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam there is a real risk that she will suffer significant harm.  On the basis of all of the evidence and submissions provided on her behalf, discussed at length above and for the same reasons, I am not satisfied that there are substantial grounds for that belief.

   Overall conclusion

10. 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

11. 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).

12. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Lambie
    Senior Member