1819210 (Refugee)

1819210 (Refugee) [2024] AATA 3167 (16 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Rami Yousif
CASE NUMBER:  1819210
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Patricia Tyson
DATE:16 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 May 2024 at 10:33am
CATCHWORDS
REFUGEE – protection visa – Vietnam – local government’s extortion and attempts to confiscate family business – applicant interrogated and beaten and brother imprisoned – departed on visa and passport in another name – limited and low-level political activity in Australia – inconsistent claims and evidence – delay in applying for protection – engagement with authorities to renew passport – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 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 26 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 18 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
CLAIMS AND EVIDENCE
The applicant originates from Ha Tinh province, Vietnam. In Vietnam, the applicant worked in his family’s seafood company. He left Vietnam in April 2013 and entered Australia on a passport and student visa in a different name. He has not returned to Vietnam since that time.
Evidence to the Department
In his visa application dated 18 January 2018, the applicant made claims that he would be interrogated, beaten and imprisoned if he returned to Vietnam. His claims for protection that can be summarised as follows:
·The Vietnamese oppressed the applicant and used any means to confiscate the family business. The applicant and his brother stood up against the government. His brother has been arrested and put in prison.
·The Public Security beat the applicant and took him to the District Public Security interrogation many times beating him and requesting him to sign the paper to hand over the family company, but he did not do so. The applicant did not dare to appeal to the government.
·The applicant escaped from the local government to South Vietnam. However, the Ha Tinh Police searched for him in the south. The local government asked him to be present at the local Public Security. His brother was arrested and sent to prison and they waited for the applicant to come home to interrogate him.
·Public security chased him and provided his name to all Public Security to catch him. The applicant paid money to an agent and used the passport of another man. He applied for a visitor’s visa and left Vietnam. The applicant has renounced his citizenship.
The applicant also submitted a handwritten statement of claims (and translation) dated 20 January 2018 and translation to the Department. In that statement, he claimed:
·In January 2011, the applicant’s parents established [a Company] for importation and exportation of river and seafood. The applicant worked with his parents. In November 2011 the company was transferred to him.
·In February 2012, the government forbid the company’s transportation and import-exports. Local government used gangsters and Public Security members to bar all vehicles coming to the company and asked for bribes. The applicant and his family stood up against the orders and the Local Public Security sent gangsters to beat them.
·In May 2012 the local government and Public Security came to beat them and threatened to imprison the applicant. His parents helped him leave home and tried to find a means for him to leave Vietnam, but the government barred him from applying for a visa. His parents paid for a visa with a different name and [in] April 2013 he left Vietnam using that name.
·After the applicant’s departure, his parents transferred the company to his elder brother on 31 July 2014. The government again oppressed them during his elder brother’s management.
·After the April 2016 Formosa incident which caused environmental disaster to Central Vietnam, the applicant’s parents and brother helped local people to buy products, but the government did not subsidise and pay back the company. The applicant’s parents and brother, together with the local people, ran a campaign against the government of all levels to the highest. The Public Security arrested and beat his brother then sent him to prison.
·The applicant fears that if he returns to Vietnam he will be treated like his brother or killed.
The applicant provided the Department with two passports: one which he says is his own genuine passport issued [in] 2012; and the passport on which he had entered Australia which was issued in [2023], is in the name [Alias initials] and has a different date and place of birth.
The applicant also submitted a document and translation. The document is titled ‘Application of Appeal’ and is a letter purportedly written by his mother as company director on 10 April 2017. It is addressed to various Vietnamese authorities and relates to the issue of compensation following the Formosa environmental incident in April 2016.
The applicant was not invited to an interview with the delegate.
Evidence to the Tribunal
The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review, but his representative did not attend the hearing.
At the hearing, the applicant initially indicated that he knew he did not meet the criteria for the visa, but expressed his desire to remain in Australia, referring to his lengthy residence here and the business he has established. He indicated he had paid taxes and contributed. He expressed a desire to do the right thing and indicated he could have, but did not, pursue a dishonest way to remain in Australia such as by paying someone to sponsor him for a partner visa. He referred to having left Vietnam because of some problems but said he did not think they would cause him problems in the future. He said he has a daughter in Vietnam who is now [Age] and that he has not seen her in person since she was [Age].
Given he appeared to be conceding he did not meet the visa criteria, there was some discussion about whether or not the applicant wished to pursue the application and continue with the hearing. Ultimately, the applicant indicated he was maintaining the claims in his written statement, and added new claims about political activity in Australia. With his agreement, I determined that the hearing should proceed. The applicant’s evidence is discussed in further detail below, as relevant.
The applicant provided his current original passport, issued in Canberra [in] 2022. He also provided a number of tax assessment documents from the ATO to support that he paid taxes in Australia.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
FINDINGS AND REASONS
The issues in this case are whether the applicant’s claims about events in Vietnam are credible and whether he has a well-founded fear of persecution or, if not, a real risk of suffering significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality
The applicant has said that he entered Australia using a false Vietnamese passport obtained through an agent which contained his photograph but not his details. He was issued an Australian visa in that same name. The delegate’s decision, which the applicant submitted to the Tribunal, confirms this.
The applicant has presented what he says is his correct passport. That passport is now expired, and he has evidently been issued a new passport in that same identity in Australia which is a strong indication that this is his correct identity. The applicant gave evidence in the Vietnamese language and referred naturally in his evidence to Vietnamese geography and institutions. I am satisfied that the applicant’s identity is as he says (that is, [the applicant] and not [Alias initials]) and that he is a national of Vietnam.
The applicant clarified that he had not renounced his citizenship, as suggested in the protection visa application, and said this must have been added there by his former agent.
Problems with Vietnamese authorities
At the Tribunal hearing, the applicant said that his family had had a [seafood] business for around forty years. It was a large company with up to 300 workers in busy seasons. They were located next to the port and bought fresh fish from fishermen when they came to shore, [processed] it and then sold it to distributors. He said after school he studied [Subject] at university in Hanoi but did not complete his degree and returned to work as a manager in the family business from around 2008. He was able to provide detail about the operation of the business and I accept that the family had this business and that he worked in it prior to leaving Vietnam.
The applicant claimed that he had left Vietnam because of an incident in which he had grown frustrated with local authorities causing problems for his family business. He got angry and punched them. He was then detained for three days and released. In response to questions, he described that officials from different authorities would come every two or three days to the business and demand that the family pay them ‘drinking money’. The officials would halt work at the business such as stopping the loading of containers or the driver from driving for many hours which would often result in the [product] being ruined. They would require payment of ‘fines’ for the work to resume. These demands were for bribes rather than legitimately issued fines. The applicant said he had complained to local government but had been told they were following orders from the higher authority.
In January 2013 the applicant was loading a truck when four officials came and asked for money. He resisted and they threatened to close the gate to prevent the container moving, and said that it would take days for an order to open the gate. An argument ensued and the applicant, who was young and angry, grabbed an iron bar and started hitting them. Police arrived and he was taken into custody at a police station for three days where he was continuously tortured and beaten. The applicant claimed that after he was released they sent people like street fighters to monitor him and hit him every day. He said three days after he was released he went to Hanoi and approached an agent about leaving Vietnam. He said he was in Hanoi for two or three months and did not return to Ha Thinh.
The applicant initially said that he did not think this would cause any problems in the future since it was so long ago, but later suggested that if the same officials had been promoted to a higher rank, he might get in trouble.
I have concerns over the credibility of some of these claims. Firstly, there is a significant difference between the claims made in the applicant’s visa application, the written statement and the evidence at the hearing. I note that the applicant indicated in the hearing that he had told his then agent about his experiences but was not sure what the agent had ultimately put in the visa application. However, he confirmed that he had prepared the handwritten statement himself.
While in the handwritten statement he made broadly similar claims that officials barred vehicles from coming to the company and asked for money, he says that he and his family stood up against the orders and gangsters were sent to beat them. He then says that in May 2012 the local government and public security came to beat and threatened to imprison the applicant. The written statement makes no mention of the claimed incident in January 2013 when the applicant hit officials and was detained for three days. Nor does it mention him going to Hanoi.
The claims in the visa application are similarly inconsistent. There it is said that the applicant was beaten and taken to the Public Security for interrogation many times. It says he escaped to the south of Vietnam (Hanoi is in the north). It says public security were chasing him.
When I raised the inconsistencies with the applicant, he said that he had to call people in Vietnam to obtain the dates and events to put in there but that today had told the true events. He said he did not know how to explain about the differences and did not want to pretend to be a victim. He referred to not wanting to lie. This does not explain the discrepancies and omissions.
There is a further inconsistency in the evidence at the hearing. At the start of the hearing, I asked the applicant where he had lived before he left Vietnam and he gave his home address in Ha Thinh. I asked if that was where he was actually sleeping until when he left and he confirmed it was. I then asked if he remembered the date he had left there for the last time. He said he was last there [in] April 2013 and had gone to Hanoi to catch a flight. I later raised the inconsistency between this evidence and his claim to have left for Hanoi months prior to departing. In response, the applicant said that when I had asked the initial question he had just been thinking the question was about his home town, he did not think he was asked a specific date or that it related to his claim, he just answered where he came from. He referred again to not wanting to lie and that if he could have remained in Vietnam he would have. I do not accept this explanation. I had specifically asked if that was where he had been sleeping up until leaving, and about the date he had left there for the last time. I do not accept that the applicant did not understand the questions or thought I was asking generally about where he had lived in Vietnam.
I also note that despite claiming to have left Vietnam because he had been arrested and beaten, and to have been of such interest that he was unable to leave on his genuine passport, the applicant did not apply for a protection visa until almost five years after his arrival. He claimed he had believed he was living illegally in Australia since he was not studying in accordance with his student visa, and had been living in fear of being caught. He was too afraid to seek advice about a visa, and it was only after meeting a Viet Tan member that he was advised to get help from a migration agent. Even accepting he was afraid and believed himself unlawful, I have some difficulty accepting that the applicant would not have sought immigration advice earlier if he was genuinely afraid of returning to Vietnam.
The applicant also made claims about events which occurred after he left Vietnam. In his written statement, he says that after the April 2016 Formosa incident, his parents did not receive compensation. They and his brother, together with the local people, ran a campaign against government. His brother was arrested, beaten and sent to prison.
For context, the April 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, decimating fish stocks and devastated fishing communities along Vietnam’s central coast. The company eventually agreed to pay $500 million in damages.[1] The disaster provoked large protests against both Formosa and the government in part due to the heavy impact on the livelihoods of the affected communities.[2] These protests led to arrests of both street protesters and online activists.[3]
[1] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report Vietnam’, 11 January 2022; Bertelsmann Stiftung, 'BTI 2020 Country Report - Vietnam', 29 April 2020, 20200429143402; New York Times, 'Outrage Over Fish Kill in Vietnam Simmers 6 Months Later', 3 October 2016, CX6A26A6E10573.
[2] Hoang C, ‘Vietnam’s dead fish may spawn a stronger culture of dissent’, cogitASIA, 30 September 2016, CIS38A80122116
[3] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.
I asked the applicant whether the Formosa incident had caused problems for his family, and he referred to the impact on the fishing industry and their business. He said even product that had been frozen prior to the incident was classified as contaminated and they had to destroy it. He said that they did not receive any compensation at all despite the money paid by the Formosa company to the government. I asked if there were any other problems for the family apart from the financial impact, and he said they lost their business and that authorities had not made too much trouble after that. He said he had no particular fears over the Formosa incident. The applicant gave evidence that his parents no longer have the company. They lost a lot of stock after the Formosa incident and ultimately sold the company, but still have one warehouse and run a smaller [seafood] business.

The applicant gave inconsistent evidence about the circumstances of his brother’s arrest. In the visa application, they way the events are described suggests that his brother was arrested prior to the applicant’s departure from Vietnam in relation to the same events that led to the applicant leaving. In the written claims however, it is said that his brother ad parents, with others, ran a campaign against the government relating to the Formosa incident. His brother was then arrested and sent to prison. At the hearing, the applicant initially said that his brother was involved in similar situations to himself, when officials would go to the port and stop him from helping their parents, and that he also had a punch up with them and was put in prison for three years. He thought this was in around 2017 or 2018. However, when I later asked why his brother had been arrested, he said his brother had been caught working on his computer and accused of gambling. He had been imprisoned for three years. I asked when he had been released and the applicant said that he did not have much hope for those claims and had not studied them well, and that if he had been prepared he would have had an accurate answer. I noted that an accurate answer should be truthful from his memory, not about studying a claim. He said he agreed and did not want to study and gather the evidence and information. When I raised the differences in the claims, the applicant said that he does not know much because he does not talk to his brother. It was the applicant who presented these different version of events, rather than saying that he did not know or was unsure about the circumstances of his brother’s arrest. His response does not resolve my concerns about the discrepancies.
While I take into account that the applicant was quite upfront at the hearing in admitting that he did not believe himself to satisfy the criteria for the visa, he nonetheless appears to have embellished aspects of his experiences. Taking his account as a whole, I have concerns over the credibility of some of his claims. I am prepared to accept that officials were regularly asking for bribes. The applicant’s evidence on this was detailed and it is consistent with country information regarding the prevalence of corruption including among government officials.[4] However, considering the variations in his evidence I do not accept that there was an incident in which he punched or hit officials. I do not accept he was detained for three days, that he was beaten by street fighters or that he went to Hanoi and stayed here for a number of months. I do not accept his use of a fraudulent passport was connected to these claimed events. I do not accept that he left Vietnam because he was of interest to authorities or feared harm.
[4] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.
I accept that the Formosa incident impacted the applicant’s parents’ business. The document submitted by the application referred to them not having received any compensation and I am willing to accept that was the case. However, given his evidence at the hearing I do not accept that the applicant’s brother or parents led any sort of activity against the government, or experienced any further issues because of the Formosa problems, other than the financial impact and eventual sale of their business. Considering the inconsistencies in his evidence, I do not accept that the applicant’s brother was imprisoned in relation to the Formosa events or in any of the various circumstances he claims.
I find that the applicant was not a person of any interest to authorities at the time he left Vietnam, and do not accept that his family has become of adverse interest since that time.
I have accepted that the applicant was regularly asked to pay bribes. As I discussed with the applicant, there was a large anti-corruption campaign in 2017 and 2018 that saw thousands of investigations and prosecutions. Perception of corruption levels are falling and there have been significant efforts to control corruption. However, corruption remains ‘rampant’ and bribery to officials, including requests for ‘coffee money’, is common.[5] The applicant said at the hearing that his parents have a smaller business now and have had less trouble. I am not satisfied that there is a real chance or risk of the applicant again being requested to pay bribes at the frequency or amount he was previously, which was linked to his parents’ large business. Even accepting it is possible that he may occasionally be requested to bribe officials in day to day life, I am not satisfied on his evidence or the country information that there is a real chance that this would be at a level, or entail repercussions, that would amount to serious harm. Nor am I satisfied that there is a real risk of it amounting to or leading to harm that would amount to significant harm as defined.
[5] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.
I am otherwise not satisfied there is a real chance or risk of any harm to the applicant in connection with any of these claimed events.
Viet Tan activity in Australia
When I asked the applicant if there was any other harm he feared in Vietnam, he stated that around the time he had lodged the visa application he had joined Viet Tan and participated in some activities. He had been introduced to the organisation by some friends who came to Australia by boat and told him about Viet Tan fighting for human rights and about how wrongly the Vietnamese authorities treated citizens. After speaking with them he felt he was in a similar situation. He expressed generally thinking Vietnamese authorities were bad and said he had learnt more after accessing material on the internet in Australia that was blocked in Vietnam.
The applicant said his activities had consisted of going to Canberra on one occasion for a demonstration in front of the Vietnamese embassy on 30 April in 2018 or 2019. This is the anniversary of the reunification of Vietnam and is an official day of celebration in Vietnam, but perceived by others as a day of loss.[6] He said the demonstration was attended by many people from the Vietnamese community and from many groups, not just Viet Tan. The applicant had shouted words and held an Australian flag. In addition to this, on other occasions he cooked food for a fundraiser, donated money ($50 or $100 at a time) and did work for the association through his home improvement business. He confirmed he had not formally joined or become a member of Viet Tan.
[6] WBUR, ‘For Vietnamese, April 30 is a Day of Many Meanings’, 30 April 2015, >
The applicant said he had ‘joined’ Viet Tan for around a year but then thought about it and stopped since he had family and a daughter in Vietnam and might need to return. He said he was a Vietnamese citizen, had been born and raised there, his parents and daughter were still in Vietnam and he wanted the opportunity to go back and visit. He said he did not want to engage in the activity just for the sake of having some evidence to support a claim. He conceded this was the initial reason that he had done it but said he later wanted to do the right thing and not tell lies. The applicant referred to having photographs on his phone of the Viet Tan protest. I asked if he would like to submit any evidence about this activity and he said no, because he did not want to persist with something that was not 100 per cent the truth.
The applicant said he was not sure whether Vietnamese authorities would have footage or information of what he had done. When I asked if there was anything that made him think the authorities would know about his activities, he said Viet Tan members would say they knew him and he was a member. He clarified this to mean he had helped fix up their office, helped members who needed help and donated to fundraising. He later said that a former girlfriend had suggested to him he would be on the blacklist because of his engagement with Viet Tan in Australia. He did not know what she based this comment on. The applicant said he did not think this activity would meet the visa criteria and when I asked if he thought it would cause problems in Vietnam, said he did not think it was too bad to return.
The applicant said he had never previously done anything political, nor had he done anything political since then. He said he would not do anything like that in the future, although suggested that if he returned to Vietnam and the authorities pushed his family then he would. I asked what he would do and he said he could not think of anything at this moment but would find ways to fight them.
On the applicant’s own admission, I find that the applicant’s motivation in participating in activities with Viet Tan was primarily for the purpose of obtaining evidence to support his protection visa application. However, considering not all of his activities were public and that he donated his time and skill, I am willing to accept he also obtained some other benefits such as social and community interaction, and that his conduct was not solely for the purpose of strengthening his claim to be a refugee.
As I discussed with the applicant, the Department of Foreign Affairs and Trade (DFAT) assesses that it is difficult to make an overall assessment of risks to political activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the government face a moderate risk of official discrimination, and those who organise protests are more likely to face discrimination. The possibility of a low-level activist being arrested cannot be discounted.[7]
[7] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.
The applicant’s public involvement with Viet Tan consisted of attendance at one demonstration around 2018 or 2019, in addition to other activities such as fundraising over a limited period of time. His suggestion that he had or could be identified by authorities as a person of adverse interest because of this was speculative. This activity was a number of years ago and I note the applicant was since issued a passport by Vietnamese authorities in Australia. I do not accept he had any existing political profile with Vietnamese authorities. On his own evidence he was one of many in a large crowd at one demonstration. There is no evidence of authorities having taken any interest in the applicant after this time. While I take into account DFAT’s assessment about the unpredictability of the risk, in all the circumstances I consider the chance of the applicant’s brief involvement with Viet Tan coming to the attention of Vietnamese authorities and the applicant being harmed for that reason to be no more than remote, less than a real chance.
While I accept the applicant’s evidence that he stopped his involvement with the Viet Tan because he did not want to jeopardise his prospects of returning to Vietnam in the future, I find that he did not engage in this activity because of any actual political belief or commitment to begin with. Considering the evidence as a whole, I do not accept that the applicant has any sort of genuine commitment to the Viet Tan or to engaging in political activity and I find he would not engage in any such activity in the future. This is not because of a fear of persecution, but because of a lack of interest or commitment to doing so.
I am not satisfied there is a real chance or risk of the applicant being harmed in connection with any real or perceived political opinion in the reasonably foreseeable future.
Departure on fraudulent passport
The applicant suggested that he may be charged over using a false document to depart Vietnam.
The applicant gave somewhat confusing evidence about obtaining the false passport that he had used. He initially said he went to a travel agent, told them the situation, gave them his passport and identity document and they did the rest. When I asked what passport he had given them, he said it was under the name [Alias initials]. However, when I asked where he had got that passport, he contradicted his previous evidence. He said that the travel agent had escorted him to the airport, handed a passport to the immigration officer, it was checked and handed back to him and it was the [Alias initials] passport. That was the first time he had held it. I asked what he had meant when he said he had given the travel agent his passport, and he said he had given his real passport, but when he received it back it was his real face but a different name. He claimed his own passport had then been sent to his home by post.
I accept that the applicant arrived in Australia on the [Alias initials] passport. As set out above, I have rejected his claimed about being detained in January 2013 and to have stayed in Hanoi for months prior to his departure. I do not accept that he left Vietnam because he was of interest to authorities or feared harm and I have significant doubt that he did actually depart Vietnam on the [Alias initials] passport. Considering the applicant’s shifting evidence around how he obtained the passport, I think it probable that he departed Vietnam on his own legal passport and used the [Alias initials] passport to facilitate a visa and entry to Australia. In that case, there is not a real chance or risk of him being harmed in connection with any claimed illegal departure on a fraudulent passport.
However, even if I am wrong and the applicant did depart on the fraudulent [Alias initials] passport, information from DFAT suggests that persons who have employed the services of people smugglers and departed illegally are viewed as victims, and that at worst face an administrative fine.[8] When I raised this with the applicant, he did not suggest that this would not apply to his situation, claim that he would be unable to pay any such fine, or that it would amount to serious or significant harm. I am not satisfied there is a real chance or risk of the applicant facing a penalty that would amount to serious or significant harm.
Conclusion
[8] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.
I have accepted above that it is possible that the applicant may in the future be approached to pay bribes, and also that he may face a fine for having departed on a fraudulent passport. However, even considering this together, I do not accept that there is a real chance of him experiencing treatment rising to a level that would amount to persecution entailing serious harm. Nor do I accept there is a real risk of him suffering treatment that would meet the thresholds in the definitions of significant harm. I have not accepted that the applicant was a person of any interest to Vietnamese authorities at the time he left Vietnam, or that he or his family has come to any adverse attention since that time for any of the reasons claimed, or might do so in the future. Considering his claims as a whole, I am not satisfied that there is otherwise a real chance or real risk of the applicant suffering any harm in Vietnam.
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.
Patricia Tyson
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.
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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 3167

16 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction