1816066 (Refugee)

1816066 (Refugee) [2024] AATA 4440 (2 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Philip Pham (MARN: 0531540)
CASE NUMBER:  1816066
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Paul White
DATE:2 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 October 2024 at 1:05pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – husband’s separate application in progress in Federal Court, with older children as members of family unit – youngest child not registered in home country. not part of either parent’s application and may have capacity to make own application – reliance on husband’s claims – religion and political opinion – husband involved with Catholics – summoned, threatened and beaten by police – removed from household registration after departure – no harm to applicant in home country – passage of time – church and protest activity in Australia – no public profile – passport renewed without difficulty – country information – personal and family registration – procedure and conditions for returnees – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 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 25 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Vietnam and applied for the visa on 7 July 2017 (PV application). The delegate interviewed the applicant and was satisfied that she is married and a Catholic. The delegate refused to grant the visa as the situation for Catholics had changed since her husband left Vietnam in 2012. The delegate considered that the applicant’s difficulty registering herself and the children on the hộ khẩu were economic and personal factors not related to S5J (1)(a). The applicant was assessed against complementary protection criteria by the delegate who did not accept that the applicant is unable to register herself as head of household and her children if she could not register on her father’s or father-in-law's hộ khẩu.
The applicant appeared before the Tribunal on 25 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant gave evidence about her background, her migration history, and her claims for protection. The applicant was represented in relation to the review.
At the start of the hearing, I discussed with the adviser whether the applicant’s husband intended to give evidence. I asked the adviser about his expectations of the husband as he was listed as a witness. The adviser said the applicant relied on her husband’s claim. Her two eldest children were linked by the Department to her husband’s claims. They were referred to the Immigration Assessment Authority (IAA) following the decision of the Department. The IAA affirmed the Departments decision, and the matter is now before the Federal Court. The adviser indicated it may be some time before a Federal Court call-over and the filing of affidavits in her husband’s case. The adviser indicated he did not consider it necessary to call her husband as a witness as his matter is before the Federal Court and the applicant’s case could be assessed on its own merits. The applicant’s husband remained in the hearing room for the duration of the hearing.
Family members
The applicant’s husband [Mr A] arrived in Australia [in] October 2012 and has a matter relating to his immigration status before the Federal Court ([Reference]). His application for protection was refused by the Department and the Immigration Assessment Authority. In that matter the applicant’s husband ([Reference]) is the first applicant and her son [Master B] ([Reference]) and her daughter [Miss C] ([Reference]) are also applicants but made no separate claims.
The applicant’s youngest child is [Master D] who is not listed an applicant in the Federal Circuit Court documents or attached to his mother’s PV application. He was born [Number] years after the applicant’s PV application was decided and more than [Number] years after the IAA decision in the applicant’s husband’s case. [Master D] is not a party to these proceedings before the Tribunal and may have capacity to make his own and separate claims to the Department.
Background
The applicant came to Australia [in] May 2013 to study English at [University]. She returned to Vietnam in early February 2015 and stayed a few weeks. She arrived again in Australia [in] February 2015. Her student visa was valid until March 2017. The applicant married [Mr A] in a lawyer’s office in [Suburb], NSW, in [Year].
The applicant and her husband have three children; their son [Master B] is aged [Age] years, their daughter [Miss C] is aged [Age] years, and their son [Master D] is aged [Age] years. All children are born and baptised in Australia and have never left Australia. The family is part of the [Parish] and [Catholic Primary School] in [Suburb]. The applicant attends church, and the children attend various church and school related activities.
The applicant had a valid Vietnamese passport when she left Vietnam that expired in [2019]. An agent in NSW renewed her passport in 2021 through the Vietnamese Embassy in Australia without difficulty to help obtain her youngest child’s birth certificate. The applicant’s children do not have passports.
The applicant does not have her citizen identity card with her in Australia. She obtained one in Vietnam when she studied year nine as she needed it for high school. She believes it is with her parents in Vietnam.
The applicant completed her 6-month English course after arrival in Australia but did not complete her vocational course because she was detained pending a court appearance. She encountered a problem because she was sharing accommodation with people who were involved in marijuana trade. She was detained for three months and granted court bail. Following her court appearance, she was cleared; her matter was dismissed and finalised.
The applicant has been busy in Australia looking after her children. She did not pursue studies other than for a few months in 2014. The applicant has worked in Australia as [an occupation 1], [an occupation 2] and now helps her husband with his [business].
Claims
To Immigration
The applicant was interviewed on 17 May 2018. The applicant claimed she and her husband would be excluded from the hộ khẩu and their son would have difficulty getting registered. Her husband has been taken off the register because he is an asylum seeker. She said her husband was involved with Catholics in Vietnam. He was called to the police station, threatened, and hit. He escaped from Vietnam. The applicant claims if she returns, she won't be added to the household registration of her husband, and they will have no rights.
The applicant is practising her faith in Australia. She attends church in [Suburb] on Sundays and on special days. She was a Catholic before she came to Australia. The applicant met her husband at the church in Sydney in November 2013. The applicant said she did not get married in a church because she had financial difficulty at the time. She delayed making a protection visa application after she married in [Year] because she still had a student visa. She studied English on her student visa yet she did not finish her course because she was pregnant and had a miscarriage.
The applicant can attend church in Vietnam should she return but would be monitored because prior to leaving her husband was involved in politics and Catholicism in Vietnam. Should she return to Vietnam she would be followed, investigated, and put into prison because of her husband. She could not move elsewhere because a police network was everywhere, and they would know where she was. Police will come to her and try to get information about her and her husband if she returned to Vietnam. Police went to the house of her husband's mother in Vietnam in 2012 and 2013 and said her son will not be a citizen of Vietnam anymore. The applicant’s mother-in-law did not tell her about the problems with household registration until sometime afterwards.
The applicant told the delegate she will follow her husband now that she is married rather than be part of her own parent’s registration. Her husband was told he had to renounce his faith, or he would be put in a re-education camp. The applicant said authorities frequently harass her family and ask questions about her husband and they must have found out about their relationship through an informant. If she goes back to Vietnam she must live with her parents in law.
The applicant said if she goes back to Vietnam she will take the children with her. They will have difficulty with their peers and because they don't have household registration. The family will not be treated as equals, will be harassed, and threatened by authorities. Her children will not have normal schooling because they will be treated unequally compared to other students. They will not have a good future in Vietnam. When it was suggested that she could move to Hi Chi Minh City she said everywhere is the same.
Prehearing
The applicant’s adviser provided amongst other things the applicant’s Marriage Certificate, Birth Certificates, Baptismal Certificates, school their attendance records of their children and two Vietnamese Police Summons dated May 2012 and May 2013 inviting the applicant’s husband to attend the People’s Committee local office. The Immigration Assessment Authority’s decision on the applicant’s husband’s protection visa application and his appeal application to the Federal Court were also submitted.
Tribunal hearing
The applicant said she does not know the situation for certain if she went back to Vietnam. She relies on her husband's application. She doesn't know how his situation would affect her or how authorities would react. She repeated more than once during the hearing that Vietnam is a one-party system. The applicant expects that she might be summoned to the office of local authorities. The applicant claims authorities link everything, so her husband’s application and time in Australia will impact her.
In Australia in 2019 and 2020 she joined with a group of protesters who travelled by bus from [Suburb] to Canberra. In Canberra the Vietnamese Embassy staff as well as people from her group took photos. She also attended a rally in Sydney protesting against land pollution by the Formosa Company because that area in which it occurred was close to her parent’s home in Vietnam. These activities might impact her in Vietnam.
The applicant had no difficulty practising her religion in Vietnam and expected that she could practise her faith in Vietnam in the future. She is not a political activist. I put to her various aspects of country information from the DFAT December 2022 Report (the DFAT Report). She thinks, but is not certain, her parents were involved in a prolonged legal action against Formosa chemical company. She is not sure of the details but knows some protests in Vietnam were shut down.
The applicant said she travelled to Hanoi to have her biometrics and health check done prior to travel to Australia on her student visa. She travelled to Ho Chi Minh City to visit an aunt for a holiday before coming to Australia.
The applicant claimed if she returns to Vietnam, she will have difficulties because she is part of her husband's family; she will not have a stable life; and she will live in fear because there is no freedom. She has now lived in Australia for a long time so is not sure how things work in Vietnam. She would have to restore her citizen identity card as the modern version is more sophisticated with a chip. She said she is not sure if she can get documentation because of her husband. In relation to her husband she would have difficulty in Vietnam and may be arrested if she goes back again and her family would be harassed. She would be questioned and might be taken away. She will be asked about her husband, and anything could happen to her. She could not relocate to her aunt’s place because her aunt has her own family in Ho Chi Minh City.
Adviser’s submission
The applicant’s advisor using DFAT December 2022 report submitted amongst other things that corruption in politics and police is identified by DFAT as a major problem. (Refer 2.11)
Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but also that corruption is a key concern of everyday Vietnamese people. Despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services. See Police or Judiciary or Prevalence of Fraud (in documents) for further specific information.
Passport issuance is not an indication that the applicant is not of interest to authorities as it is possible to get anything until the money dries up and then it is impossible. Vietnamese Embassy staff around the world, Consulate officials and Ministry staff have been gaoled for corruption. (Refer 5.41)
Catholics have faced persecution and difficulties for many years. (Refer 3.22)
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.
It is difficult to practise religion in rural areas compared to city areas. (Refer 3.13)
Vietnam is officially an atheist state. Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion. In practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers. The 2020 US Department of State International Religious Freedom report estimates, based on census data, that 14 per cent of Vietnamese have some religious faith, with 6 per cent of the population Catholic and 5 per cent Buddhist. Protestants make up about 1 per cent of the population. Small religions and traditional religious-cultural practice (for example, ancestor veneration) are also practised.
Everyday Catholics demonstrate if authorities try to enter land and church grounds. Catholics will oppose action being taken because they consider their churches the House of God. (Refer 3.18)
Many incidents relate to religious groups that are politically active in local land or environmental disputes. It can be difficult to distinguish between religious and political claims. The distinction is not necessarily apparent in the everyday experiences of religious adherents or the authorities, either or both of whom may see religious activity as inherently political.
Arrest of the applicant is possible and happens in Vietnam. There is evidence from DFAT about the arrest and enforced or involuntary disappearances (Refer 4.2)
The 2019 US Department of State Human Rights Report for Vietnam reported an alleged disappearance of a Vietnamese national in Bangkok. Similar allegations about a Vietnamese person being kidnapped in Berlin, allegedly by state actors, and then reappearing in Vietnam and being tried and sentenced for corruption were reported in 2017. Arrests sometimes occur without the knowledge of friends, families or employers, and those arrested may be assumed to be disappeared. See Arbitrary Arrest and Detention. DFAT is otherwise not aware of recent claims of enforced or involuntary disappearance by state actors in Vietnam.
Relocation is not possible. (Refer 5.32)
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. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
The applicant does not claim she has had difficulty in the past but when she returns it is possible she could be arrested disappear and encountered difficulties linked to her church. (Refer 4.2 above)
There are difficulties according to DFAT with unemployment and underemployment, social security, and household registration. (Refer 5.32 above)
The applicant has three children here who cannot go with her to Vietnam as they are undocumented even though that would be what she wants if she cannot remain in Australia if this application is unsuccessful.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
DFAT Country Information Report Vietnam dated 11 January 2022 (hereafter the DFAT Report) was referred to by the adviser in support of the applicant’s claims.
Analysis, reasons, and findings
Country of nationality

The applicant travelled to Australia on a Vietnamese passport, a copy of which is contained on the Departmental file. She renewed her passport in 2021. She has at all times stated that she is a citizen of Vietnam, and she has been assessed on that basis by the Department. The Tribunal finds the applicant is a Vietnamese citizen and has assessed her claims against Vietnam as the country of nationality and the receiving country.
Issues
The issues in this review are whether there is a real chance that, if the applicant returns to Vietnam, she will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
The applicant has claimed that if she returns to Vietnam she will be with her family. If she returns she will return with her husband and three children to her husband’s former place of residence. I accept as the DFAT report indicates that Vietnamese culture emphasises traditional family values and the applicant will return with a marriage certificate as a married woman and not as she left, as a single woman. She has consistently claimed she is part of her husband’s family since their marriage. I accept this and I have considered her claims based on her family returning together. As such I find they will return, at least initially, to Hà Tĩnh - a northern coastal province in the North Central Coast region of Vietnam rather than the applicant’s area of origin which is in Quang Binh some 150 kilometres south of Hà Tĩnh. I note the Diocese of Hà Tĩnh comprised 284,000[1] baptised Catholics in 2021 and over 130 priests.
[1] Statistics of Ha Tinh Diocese (ucanews.com)
The applicant makes no claims that she has ever encountered difficulty in Vietnam. She obtained the documentation required for her student visa, left and arrived in Vietnam without problems, renewed her Vietnamese passport without any difficulty from authorities and practiced her religion unhindered. In this application the applicant relies primarily on her husband’s situation which she claims will impact her should she return to Vietnam.
Husband’s claims
In sum, the applicant’s husband claims he is of the Catholic faith. In November 2011 he became aware of a disturbance at his local church, attended the church and was beaten then summoned to appear at the local police station. He was interrogated, beaten, and tortured by police, and told that he must abandon his Catholic faith or be sent to a re-education camp. He fled the village and stayed with a relative about 1000 kilometres from his home before departing Vietnam for [Country 1], [Country 2] and then Australia. He claims he is wanted by the police and if he returns to Vietnam he would be arrested and imprisoned and he would be harmed for leaving illegally and seeking asylum.
In support the applicant provided a notice inviting her husband to attend the People’s Committee Office in his village at 1400 [in] May 2012 and another ‘1st notice to appear’ making the same request dated [May] 2013. For reasons given below I do not accept the applicant faces a real chance of serious harm should she return to Vietnam for any reason covered by the Act.
Catholicism
I accept, as the delegate did, that the applicant is married and Catholic and that she will continue to practice her faith in Vietnam should she return to Vietnam. The applicant claims she will encounter difficulty because of her commitment to Catholicism and because her husband was involved in the church in Vietnam over 12 years ago. I note the DFAT Report indicates Catholics reside in most districts, provinces, and cities, and are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. The Catholic Church is, by definition, united and deals with the Government at a national level across Vietnam and in general, relationships between the Government and the Church are cordial. I note the applicant said she did not expect difficulty practicing her religion in Vietnam. This is consistent with the DFAT assessment that generally Catholics are able to practise freely at registered churches.
I note the DFAT Report indicates there have been Catholic political movements that attract negative attention from authorities and, as the applicant adviser mentioned, the distinction between faith and politics can be difficult to draw where Catholics are involved in political, human rights or environmental movements. Land disputes have been reported, including the seizure of Catholic land and buildings. DFAT indicate much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades and that process continues. I accept that as the DFAT Report states Catholics generally do not experience societal discrimination or a pattern of such discrimination. I do not accept that the applicant faces a real chance of serous harm because of her association with the Catholic church or any related political movement.
I have considered whether the applicant’s husband’s claim related to his religion summarised above will impact on the applicant. I do not accept the applicant will encounter difficulty that gives rise to a real chance of serious harm for reason of her husband’s engagement with or support for his religion. The claimed involvement at his church, even if found credible, is now remote in time. I do not accept the incident that he claims gave rise to his departure will impact the applicant to the extent it gives rise to a real chance of serious harm for her.
Sur place
I note land and environmental compensation disputes are extant in Vietnam. DFAT report the 2016 ‘Formosa’ chemical spill that the applicant mentioned, was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms, and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate. Some activists have been prosecuted, protests responding to the Formosa Steel environmental disaster have largely ended and the company agreed to pay $500 million in damages. While I accept the applicant participated protests related to this issue in Australia I do not accept this creates a profile that would be of interest to the authorities in Vietnam should she return now or in the reasonably foreseeable future. There is no information to suggest her action relating to Formosa in Sydney has come to the attention of authorities in an adverse way.
Similarly, her visits to Canberra in a community bus may have brought her to the attention of the Vietnamese authorities in a minor way if she was photographed by Embassy officials or informants amongst the Vietnamese community travelling with her. However, she has only participated in events organised by the Vietnamese community in Australia. She has not used her time in Vietnam or overseas to build a profile of a citizen who publicly opposes the Government, and there is no evidence to suggest that she is of interest to Vietnamese authorities for actions here or for any actions engaged in domestically in Vietnam. The applicant held no leadership role in the Formosa or Canberra demonstration. She said she is not a political activist.
I have considered whether the applicant’s husband’s claim relating to his political involvement will impact on the applicant. I do not accept that either her husband’s profile or claimed action over 12 years ago or her participation in demonstrations gives rise to a real chance of serious harm should she return to Vietnam now or in the reasonably foreseeable future.
Registration
The applicant claims she will be unable to formally register her presence in Vietnam. The DFAT Report indicates the system has changed since the applicant first left Vietnam in 2013 and her husband left in 2012. The DFAT Report indicates citizens are required to have a Citizen Identity Card (CIC). Cards have a twelve-digit number and barcodes were added after 2016. They are being replaced progressively by chip-based cards, which contain information on 20 different fields including tax and insurance. This information is kept on a national database, which was launched in February 2021.
Hộ khẩu books are no longer issued and have been replaced by information held in a national database that is linked to a person’s CIC. Hộ khẩu registration of residence is still possible at police stations on arrival. I note the applicant obtained her passport in 2021 in a timely manner and without difficulty from national authorities following an application to the Immigration Department through her nearest diplomatic mission in Sydney.
I am satisfied the applicant, as a married woman, can obtain registration as the law in Vietnam recognises two categories of registration (reduced from four under the previous law): temporary and permanent. Citizens who marry into a family already holding permanent residence are entitled to gain permanent residence status in a new district according to the DFAT report. I am satisfied that should the applicant move to her husband’s original province where his family maintain their registration she will be entitled to registration there once she negotiates any potential bureaucratic hurdles. His family reside there, and she can join his family registration. Her husband may also need to obtain registration and CIC and negotiate potential bureaucratic hurdles. I do not accept this will give rise to a real chance of serious harm for the applicant. I note DFAT is not aware of cases of returnees being denied citizenship. I am satisfied the applicant’s husband can re-acquire his citizenship should he have lost this as his mother claims.
Monitoring by authorities
The applicant may face some monitoring because of her husband’s method of departure from Vietnam as Articles 120 and 121 of the Penal Code prohibit illegal emigration and describes penalties of between 3 and 20 years in prison for both organiser and individual émigrés. I note DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia. Authorities occasionally question returnees from Australia upon their arrival in Vietnam for one to two hours and focus 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. Sources have described cases where people have been detained for multiple days or recalled for further questioning where would-be migrants have employed the services of people smugglers yet at worst only face an administrative fine. This is not the applicant’s situation, and I am satisfied that even if she is monitored this does not give rise to a real chance of serious harm.
Problems fitting into Vietnamese society
With respect to the applicant’s claims to fear harm based on an inability to adjust to life in Vietnam or gain employment or because of she and her family enjoys greater opportunities in Australia, I find the applicant has not articulated any claims which satisfy the thresholds for protection in this regard. I appreciate she has greater opportunities in Australia and that her children know only life in Australia, and that she wishes to stay after such a long period in Australia. However, absent of other considerations, adjustment and economic circumstances are circumstances of general application in a country and lack the degree of particularity required to give rise to protection obligations under the refugee or complementary protection criteria.
Adjustment to life in Vietnam and generalised economic circumstances do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations and do not constitute persecution or discrimination within the meaning of s 5J(4). The applicant has not provided evidence that the adjustment or economic circumstances amount to systematic and discriminatory conduct with respect to her.
Returnees, including failed asylum seekers, 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. Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese life for decades, is very common and is even encouraged by the Government.
I accept that the applicant will not be guaranteed a job or a place to live if she goes back to Vietnam. The applicant’s connection to her homeland is much weaker than it was when she first came to Australia in 2013 and when she returned in 2015. The applicant claims she would have difficulty readjusting yet she has maintained her language skills, is young, intellectually capable, has no substantial medical problems or criminal history that will make it difficult for her to obtain employment in Vietnam. She may initially face some difficulty, but I find that any difficulty will not reach a level that will meet the protection criteria for refugee or complementary protection.
Accordingly, I am not satisfied that in the applicant’s individual circumstances regarding adjustment and the country information regarding the economic circumstances in Vietnam the applicant would face a real chance of serious harm on return to Vietnam now or in the reasonably foreseeable future on this basis.
I do not accept that the applicant will be subjected to harm on her return to Vietnam for one or more of the reasons mentioned in s 5J(1)(a) of the Act. I find, based on the DFAT Report, that the circumstances in Vietnam are generally not such as would meet the definition of serious harm contained in s 5J(5) of the Act.
Corruption, arrest, or disappearance
The applicant’s adviser submits corruption in politics, police, and government including the diplomatic missions, and mistreatment may lead to the arrest or enforced, or involuntary disappearance of the applicant should she return to Vietnam. I reject this submission. The applicant has not provided credible evidence that satisfies me or indicates she faces a real chance of serious harm should she return to Vietnam now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul White
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.
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5J   Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36   Protection visas – criteria provided for by this Act
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(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.
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[2024] AATA 4440

2 October 2024

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