1815806 (Refugee)

1815806 (Refugee) [2020] AATA 2317 (16 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815806
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Luke Hardy
DATE:16 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 June 2020 at 4:52pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Roman Catholic – no claim of harm – arrived in Australia on last day of visa – criminal conviction, imprisonment and immigration detention – status as returnee with criminal record – credibility – unreliable witness – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Vietnam. He entered Australia on [date] May 2017 on a tourist visa and departed again on [date] May 2017. He re-entered Australia [in] June 2017 on the same visa which expired on [the same day]. [The applicant] then became an unlawful non-citizen in Australia. He lodged a protection visa application on 6 October 2017. The delegate refused to grant the visa on 4 May 2018.
[The applicant] was later arrested, charged, convicted and jailed for a drug-related offence. He served an eleven-month sentence and was released into Immigration detention in April 2020. His review application is now before me.
[The applicant] attended a video-conference hearing on 16 June 2020. He is unrepresented. The hearing was facilitated by an interpreter in the Vietnamese-English medium. The hearing was held during the COVID-19 pandemic. The interpreter attended by a telephone link between the Tribunal’s hearing room in Sydney and the hearing room occupied by [the applicant] at the [detention] facility in [another state]. There were some difficulties establishing the video-link and it dropped out on at least four occasions. This happened only once during the middle of someone talking, which is to say that it usually happened at the end of translation of [the applicant]’s oral evidence into English. Contact was quickly re-established in all instances. I took care to recapitulate the proceedings when we re-established contact. [The applicant] explicitly said at the end of the hearing that he appreciated having had an opportunity to speak to his claims. On review of the proceedings, I am satisfied that these occasional technical issues did not prevent [the applicant] from having a fair opportunity to give oral evidence at the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In his application to the former Immigration Department, [the applicant] claimed to have been a self-employed [Occupation 1] who was raised and educated in Da Nang province. He claimed he moved from there to Ho Chi Minh City (HCMC) in 2008 and continued living and working there until he came to Australia in 2017.
In a statement attached to his primary application, [the applicant] claimed:
I left [Vietnam] because I am a Catholics who has very limited rights in the country.
And because I [was dissatisfied] with Vietnam Communist regime.
In 2016, a plastic company named Formosa had dumped their waste to the sea with
approval from the authorities. Lives under the seas such as fish and other sea [animals]
had been destroyed as the marine environment had been seriously polluted.
Just to raise our voices to protect the environment and the rights to be a citizen, the
Catholic community in Nghe An Province had been treated badly. They organised
peaceful demonstrations on behalf of fishermen and women who were suffering from
not being able to make their catch. The priests from our churches had stood up and
lead the people to raise their voices and to protect their citizen rights. They had been
arrested and isolated from people outside. Those who participated in the
demonstrations were beaten and strictly house arrested. The people lived in constant
fear and did not even have their basic human rights.
People all over the country were not informed of what was happening to the local
residents because the government was corrupted, and they had the complete control of
the media. Local and overseas news gathering agencies with details on the truth were
all intercepted by the government and were shut down. All the basic human rights
were not respected in my home country. People lives continued to deteriorate and
many had contracted cancers due to the polluted environment. Fishermen could not
make a living to feed their families as they could not go out and catch fishes.
At the time, there was an alarm raised to warn people that the authorities were against
those who were Christian, particularly Catholics. I am a catholic and I am afraid that
when I return to Vietnam I would be mistreated by the government.
When I came to Australia for visit, I found out a lot of information reflects the truth of
Vietnam Communist regim[e] regarding corruption of the government. I really
[was dissatisfied] with what the government has done and it makes me fear of being
Catholics, therefore, I had to [leave] the country.
I did not experience harm in my country. However, it is not a country for me to live
anymore since Catholic people are being more control[led] under Vietnam Communist
regime.
I did not try to move because there is only one government in Vietnam. Wherever [sic] I
live, the law will be the same.
Since Vietnam had been liberated, the Catholics citizen had been suffering a lot and
have limited rights. We were not allowed to involve in politics. We are not allow[ed] to
become police or [e]ven work for government community. Although we can live and do
business there, but our rights are limited. Same as many other citizen, we don’t have
the freedom of speech. The Vietnamese government always suppress the Catholics.
And being a Catholic, I deeply understand the disadvantages that myself and other
Catholics have been suffered. After the environment disaster in Vietnam happened in
2016, the country situation became worse, especially for the Catholics people.
Our Catholics people from all areas of the country had raise our voice to protect the
fisher man and local resident in Nghe An, the area that was severely affected by the
environment disaster which was caused by Formosa company. However, the
government chose to protect Formosa company, leave the citizen live in miserable
and attempted to suspress Chatholics [sic] who protested for the rights of Vietnam citizens.
I am afraid that if I ever return to my homeland, I would not be of an exceptional case…
From what I have seen, the authorities in Nghe An and Provinces over the country
had resourced more and more to blatant and forceful measures to suppress the
Catholics.
From the use of delinquents to encircle the prayer chapel, to the use of grenade to
destroy the chapel, and now the authorities had resorted to the armed forces to
suppress the catholic people. Many Catholics were beaten badly and were seriously or
critical injured. It had been worse in some cases where the police disguised as thugs
and other elements who threw rocks at masses, beat parishioners, caused damages to
the churches and particularly destroyed the statues of Our Lady Maria. Facing these
situations, many Catholics from all over the country had gathered together at one
location to join forces and participated in demonstrations to seek justice and to ask the
authorities not to create many more crimes towards the people and to stop suppressing
the people. On the contrary, they had increased their act of suppression towards the
people.
I am a person involved in religions. I know how cruel the Vietnamese communists
were. And this was the main reason that I was afraid of if I ever had to return to
Vietnam, as I would be treated the same as [those] people were. Even though I had not
committed any offence or done anything wrong, to the Vietnamese government being
involved and active with religion would be a severe offence. They treated us as
traitors. They would find any possible reasons to suppress us to the end. Particularly
in my country, these happen very regularly. The disparaging of religions has been
engraved deep down in the minds of the authorities in Vietnam.
Although I have not been mistreated or beaten by the police, I am sure that the
Vietnamese government would never protect me from this as they are afraid that those
returning from overseas would be the sources of a revolution. If I return I would face danger.
Independent country information
I have had regard to the following independent information regarding Catholics in Vietnam, provided in the DFAT Country Information Report: Vietnam, published on 13 December 2019:
3.32 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. Authorities do not, however, permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytisation.
3.33 Unlike other religions, there are no independent Catholic organisations claiming to represent Vietnamese Catholics. There has, however, been a rise in the number of independent ‘house churches’ in locations where Catholic parishes have faced difficulties in registering with provincial authorities, due in part to inconsistent enforcement of national laws. These parishes are generally in remote areas and/or areas with majority ethnic minority populations, with the most problematic regions reportedly in the Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong Provinces), the Northwest Highlands, and Hoa Binh Province. Human rights observers report that these house churches face constant surveillance by authorities.
3.34 The Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances. In the aftermath of the Formosa environmental disaster of 2016 …, Catholic priests in Nghe An and Ha Tinh Provinces were active in organising demonstrations in response to pollution and high volumes of fish deaths, and assisted parishioners to file lawsuits against the government for financial compensation. Catholic priests were also among the most vocal critics of draft laws on cybersecurity and special economic zones in June 2018 ... For example, the Federation of Vietnamese Catholic Mass Media criticised the Cybersecurity Law’s lack of privacy protections, and claimed it had reduced online traffic to Catholic websites ... Authorities responded by arresting several Catholic activists, while others reportedly went into hiding or fled the country.
3.35 Throughout 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, human rights observers reported a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by both plainclothes individuals and members of the Red Flag Association, a highly organised pro-government militant group that has typically worked with or under the direction of local authorities. For example, a violent clash broke out in December 2017, between Catholic parishioners and plainclothes individuals regarding the construction of a new chapel in Vinh Diocese. State media reported that parishioners assaulted police, while social media reported plainclothes individuals assaulted parishioners under local authority directives. Human rights observers reported several other violent incidents involving Red Flag members throughout 2017 and 2018, including other attacks in Nghe An and Dong Nai Provinces. International observers reported that the Red Flag Association self-dissolved in 2018 and is no longer active.
3.36 The Catholic community has also been significantly affected by ongoing incidents of land appropriation and destruction of property in a number of locations, including Hue, HCMC, Da Nang, and Hanoi. In January 2019, for example, HCMC authorities reportedly demolished at least 112 residential properties on land claimed by the Catholic Church.
3.37 DFAT 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 authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.
Regarding the Formosa incident and ensuing protests, the same source reports:
2.4 Vietnam’s rapid economic transformation has contributed to significant improvements in health, education, and poverty outcomes. The Communist Party of Vietnam (CPV) has maintained tight political control and provides limited space for dissent. The country continues to experience numerous small-scale protests, the vast majority of which are connected to either land-use issues, calls for increasing political space, or the lack of equitable mechanisms for resolving disputes ... More significant protests have also occurred in recent years: following the April 2016 Formosa environmental disaster, in which toxic discharge from a steel plant poisoned a large stretch of Vietnam’s central coastline; in June 2018, in relation to both a proposed new special economic zone and a restrictive cyber-security law; and in relation to the ongoing South China Sea dispute with China.
The Formosa disaster is also discussed in the following article[1] in The Diplomat:
[1] “It’s Official: Formosa Subsidiary Caused Mass Fish Deaths in Vietnam,” The Diplomat, early April, residents along the central Vietnamese coast began noticing unprecedented numbers of dead fish. A month later, over 100 tons worth of dead fish had been collected, and Prime Minister Nguyen Xuan Phuc had labeled the crisis “the most serious environmental incident Vietnam has faced.”
Phuc promised an investigation. Now, nearly three months after the first dead fish washed ashore, the government has announced its conclusion – and it’s the same one local residents reached from the outset: pollution from a steel plant in Ha Tinh province, owned by Taiwan-based Formosa Plastics Group’s local affiliate, Hung Nghiep Formosa Ha Tinh Steel Corp, poisoned the fish.
According to the government investigation, which featured over 100 scientists from Vietnam and abroad, Formosa Ha Tinh Steel’s plant discharged industrial waste into the ocean, containing harmful chemicals such as phenol, cyanide and iron hydroxides. That pollution was responsible for killing the fish, Minister Mai Tien Dung announced in a press conference on Thursday.
Residents had long blamed Formosa Ha Tinh Steel, with local fishermen reporting they had seen red water discharging from a dumping pipeline linked to the as yet unfinished plant. The company’s initial response only made things worse, with a representative telling the media, “Before acquiring the land, we already advised local fishermen to change their jobs… Many times in life, people have to make a choice: either to catch and sell fish, or to develop the steel industry. We cannot have both.”
Formosa Ha Tinh Steel took a different approach to the government’s announcement on Thursday, saying it would accept the report’s conclusion – and the responsibility. “We respect the government’s investigation results and are cooperating with the authorities to handle and mitigate the consequences,” the company’s chairman, Chuan Yuan-Cheng, said in a written statement.
Officials from the company attended the government press conference on Thursday, where they offered an apology along with a bow. They also pledged to pay 11.5 trillion Vietnamese dong ($500 million) in compensation for economic losses and to treat the pollution. Tellingly, part of the compensation will go toward helping local fishermen find new employment – a frightening indication that the marine life may never recover.
The fish deaths sparked rare mass protests in major Vietnamese cities over the course of several weeks in April and May. Citizens complained that the government was not taking the matter seriously enough, nor investigating quickly enough. The protests were marred by arrests and violence, according to activists, but apparently had an impact. Notably, Phuc convened a meeting on implementing an emergency response only after the protests began.
Some of the protesters accused the government of looking the other way on the environmental crisis to ensure investment kept rolling in. As Bloomberg reported in May, Formosa Ha Tinh Steel was “considering whether to raise its investment in Ha Tinh from $10.5 billion to $28.5 billion” at the time.
Taiwan’s Ministry of Foreign Affairs said in a statement that Taiwanese officials in Vietnam have been helping to mediate in order to help both sides settle the dispute as quickly as possible. The ministry added that investors abroad should respect local environmental laws and shoulder corporate social responsibility “in order to avoid harming our country’s overall image or influencing foreign relations.”
The ministry also urged the Vietnamese government to safeguard the rights of all Taiwanese companies investing in Vietnam and to protect the safety of Taiwanese people and property – perhaps fearing a repeat of riots in 2014 that targeted Taiwanese factories. In May 2014, rioters attacked the Formosa Ha Tinh Steel mill, leaving two workers dead and injuring 90.

I have had regard to the following information in the latest DFAT Country Information Report: Vietnam relating to returnees to Vietnam:
5.24 Article 23 of the Constitution provides for citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the government imposes limits on the movement of some individuals, particularly foreign travel by high profile political activists or critical journalists. Authorities often confiscate passports or deny issuance of passports for people the government deems a threat to national interests, including their family members…
5.26 Irregular maritime movements occur in Vietnam, including for intended travel to Australia. Most departures to date have originated from Binh Thuan Province in the south and Quang Binh, Nghe An, and Ha Tinh Provinces in the north. DFAT is not aware of any reports of authorities being involved in facilitating illegal departures.
5.27 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return. Article 17 of the Decree on Sanctions of Administrative Violations in Social Security, Order and Safety, Prevention and Fighting of Social Evils, Fire, and Domestic Violence mandates a fine of between VND3 million (AUD187) and VND5 million (AUD310) for crossing a national border without undergoing official exit procedures; evading, organising or helping others to leave illegally; or departing using another person’s travel documents (or permitting another person to use their documents). Fines of between VND5 million (AUD310) and VND10 million (AUD620) are mandated for the owners or operators or vehicles that transport people across the border illegally; and for the use of fraudulent travel documents or other identity documents. In practice, the implementation of this legislation varies depending on the person and the circumstances of the illegal departure...
5.28 Articles 120 and 121 of the Penal Code state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence. Organisers of such movements face imprisonment of between five and 15 years, and those found to have committed particularly serious crimes can be imprisoned for 12 to 20 years, or life. Individual travellers face imprisonment of between three and 12 years, or between 12 and 20 years in serious cases.
5.29 DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned 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 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
5.30 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 are questioned at 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.
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two 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…
5.33 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see Security Situation). Anecdotally, indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh Provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34 A number of formal programs support the reintegration of returnees, including with the support of foreign governments. The International Organization for Migration provides financial assistance for education or income-generating activities or in-kind goods. The Reintegration Network is a non-funded, voluntary alliance of local and international organisations and UN agencies that specifically supports the return and reintegration of women and children, including through improving the coordination of referrals and reintegration assistance provided to returnees.
5.35 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.
Evidence to the Tribunal
It is important to note that up to this point, [the applicant] claimed not to have been relevantly harmed at any time in his life back in Vietnam. It can also be seen that, in his statement of claims, [the applicant] misreported the outcome of the Formosa pollution scandal: whereas he said the government protected the polluters, independent reporting shows that the government prosecuted them. In any event, [the applicant] did not claim to have ever joined in any protests by members of the Catholic Church in Vietnam in relation to any issues at all, let alone local land disputes in Nghe An and Ha Tinh provinces, or the Formosa incident.
At the hearing, I asked [the applicant] about his Catholic family and its life in Da Nang. He described his mother as elderly and generally staying at home. [Details of siblings]. His evidence indicates that his family is just getting on with day to day life, with those of working age able to work in positions of responsibility. He confirmed that he was a self-employed [Occupation 1] back in Vietnam. He said he lived in Da Nang until he was twenty and then moved to HCMC.
I asked [the applicant] about his practices as a Catholic. He said he used to go to Mass every Saturday or Sunday in HCMC, the Saturday service, I understand, being a sabbath vigil service commonly allowed by the Church as an alternative to Sunday Mass. [The applicant] told me he also attends weekly Mass in Australia. I am prepared to accept that [the applicant] is a Catholic.
I asked [the applicant] what issues he might face in Vietnam due to his being a Catholic and he said that Catholics are considered like black sheep in Vietnam. He said that if one says he or she is a Catholic in a professional resumé one may face difficulty. He said that although discrimination on religious grounds is not officially permitted in Vietnam there is prejudice under the surface.
I asked [the applicant] for more information, reminding him that he had previously claimed never to have suffered any potentially relevant harm in Vietnam. In reply, he said that a Catholic in business can suffer hindrance from the government. I asked him if he could provide a specific example and he said that if a worker says he or she is Catholic it becomes difficult for that person to be promoted by his or her employer. I reminded him again that he used to work for himself, the point being that his example did not seem relevant to his own experience. In reply, he said he had previously worked for the government before going into business for himself.
I have not been able to find any independent evidence to suggest that a person in Vietnam needs to state his or her religion on a professional resumé. Meanwhile, I note that there is no reference in [the applicant]’s original claims regarding his employment background suggesting he was ever employed by the Vietnamese government. Prior to owning his own business he was attached to another enterprise as an “advisor.” In any event, he said to the Department that he was never harmed in Vietnam and, to any extent that he might have been engaged by the government in the past, he was evidently able to move on and run his own business.
[The applicant] made some substantial new claims at the Tribunal hearing. He said he attended Mass a few times in Nghe An province at some stage in the past. He said that when he used to do this the authorities used to ask him why he was there. HCMC is quite far (broadly) south of Da Nang. Nghe An is a considerable distance in the opposite direction, closer to norther Vietnam. I put to [the applicant] that he had never claimed prior to the hearing that he had been in Nghe An, and he said, “sometimes I visited.”
I put to [the applicant] that according to the independent country information it took more than merely going to Mass in Nghe An to attract negative attention from the authorities. He then made another new claim, to the effect that he attended Catholic protests in Nghe An province. He went on to say that the authorities were unable to arrest him, however, due to their fear of precipitating a public outcry. This claim did not appear to sit with evidence to the effect that some protest leaders were arrested and detained in 2016 in Nghe An (see paragraph 3.34 of the DFAT report cited above).
I asked [the applicant] to explain why he did not make any of these claims known to the Immigration Department in his original application. In reply, he said he did not speak English and needed assistance to make his application.
I invited [the applicant] to discuss his claim about people who return to Vietnam from abroad being treated like dissidents or “revolutionaries.” I put to him that if this were generally the case, the Vietnamese government might not let anyone leave the country in the first place, whereas he had evidently been able to leave Vietnam legally on an Australian tourist visa. His reply struck me as confused: he said that, although he is not regarded by Vietnamese authorities as a “reactionary” or “revolutionary,” he is still on their “black list.” I asked him to explain how someone not regarded as either of these things could be on a government “black list” and how, in such circumstances, he had been issued with a passport and allowed to leave Vietnam. In response, he said that the authorities caused him difficulties in business and prevented him from going to Nghe An. I put to him that he appeared here to be contradicting himself, as he had just claimed to have visited Nghe An a few times to attend Masses there. He then said the authorities could not prevent him. His evidence here struck me as improvised and confused.
I asked [the applicant] if he had any other claims. He said he feared being scrutinised by authorities in the event of being escorted all the way back to Vietnam by Australia police. I took this to be a vaguely implied claim regarding “double jeopardy” or being persecuted or at least re-prosecuted in Vietnam for crimes committed abroad.
[The applicant] told me that he was arrested and convicted in 2019 in a matter involving [an offence]. He said he served a non-parole period of eleven months in jail before being moved into immigration detention.
Relevant to this new claim, relating to facts that did not exist prior to the primary decision in this case, I have had regard to the following information provided in the DFAT Country Information Report: Vietnam, dated 13 December 2019:
4.10 The principle of double jeopardy is regulated in the Constitution, Penal Code and Criminal Code (2015). It is also referenced in the Law on Mutual Assistance (2008). According to the Ministry of Justice, the principle of double jeopardy applies in Vietnam: persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subjected to further trial in Vietnam for the same crimes. Article 6 of the Penal Code provides that people, who have committed offences overseas, where the sentence has not been served, may be ‘examined for penal liability in Vietnam’.
I put to [the applicant] that on the evidence before me it seemed highly unlikely that he would face any action from Vietnamese authorities in relation to his offence and servitude in Australia. [The applicant] did not rebut this, but repeated his fear of being escorted into Vietnam by Australian officials whose presence might cause Vietnamese authorities to pay closer attention to him. This struck me as a claim based purely in bald speculation given that [the applicant] had spent so little time in prison here for an offence that appeared to be entirely a domestic matter. [The applicant] might be escorted to an aircraft in Australia but there was no evidence before me to suggest that Australian authorities would be required to escort him home: he is evidently no longer in criminal custody.
[The applicant] expressed the desire to be allowed out of detention for just long enough to spend some time with his partner and their children here in Australia before boarding an aircraft home. I explained to him that this is not a matter that the Tribunal has any power to decide.
[The applicant] finished by saying that he had said everything he wanted to say in this matter and that he was willing to return to Vietnam.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either "well-founded" or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to "significant harm". It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.
In assessing the credibility of an applicant's claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
In this specific case, the claims relate to “religion” and imputed or actual “political opinion.”
That said, [the applicant]’s claims are not impressive or compelling. He struck me at the hearing as an unreliable witness, given to improvisation in the course of speaking to his claims. Whereas I can accept that in certain local and specific circumstances, Catholics in Vietnam may come to the negative attention of authorities there, I give weight to the evidence to the effect that they are generally free to practice their faith, and I find that [the applicant]’s claims about having come to negative attention lack consistency and credibility. I give much more weight to his claim about never having suffered any potentially relevant harm in Vietnam for reasons related to his being a Catholic, or for any other reason. Further, I find that [the applicant] will not engage in protests on behalf of the Catholic church or for any other reason because he is not genuinely interested in doing so, rather than out of a fear of being persecuted.
I do not accept that [the applicant] ever attended Mass in Nghe An. On the evidence before me I do not accept that he has ever visited Nghe An.
[The applicant]’s claims about the implications of stating that one is Catholic on a work resumé are unsupported and not compelling. I give them no weight in this particular case.
I am not satisfied on the evidence before me that [the applicant] will suffer any potentially relevant harm in Vietnam due to having spent time in a foreign country, whether as a tourist, or failed asylum seeker, or former prisoner here.
On the evidence before me, I am not satisfied that there is a real chance of [the applicant] facing re-prosecution or related persecution in Vietnam due to his having been convicted of an offence in Australia.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Vietnam in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Vietnam is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are 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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. 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 (ref. MIAC v SZQRB [2013] FCAFC 33).
"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 is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission.
Torture 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 ICCPR. Cruel or inhuman treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Degrading treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one 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 ICCPR.
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.
Accepting that [the applicant] is a citizen of Vietnam, I find that Vietnam is the “receiving country” in this case.
I find that the harm identified in [the applicant]’s case, includes at least “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” and “arbitrary deprivation of life.”
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims, which have failed due to inconsistency and lack of credibility and/or an overall lack of a real chance of being persecuted. In the circumstances, those claims can no more succeed as complementary protection claims.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2020] AATA 2317

16 June 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice