1823584 (Refugee)
[2024] AATA 3229
•28 May 2024
1823584 (Refugee) [2024] AATA 3229 (28 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1823584
COUNTRY OF REFERENCE: Vietnam
MEMBER:Peter Vlahos
DATE:28 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 28th May 2024 at 9.00AM.
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – criminal conviction – resignation from the Communist Party – religion – a member of the Mennonite Church – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65,425, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 August 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 23 August 2017. The delegate refused to grant the visa on the basis that the application did not satisfy subsection 36(2) of the Act.
The applicant appeared before the Tribunal on 20 May 2024 at 9.30AM via video link to give evidence and present arguments. The Tribunal received no oral or written evidence from any other person or persons on the applicant’s behalf.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was not represented by a registered migration agent or Australian legal practitioner.
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s Country of origin
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Peoples’ Socialist Republic of Vietnam and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
Therefore, on the basis of the abovementioned evidence, the Tribunal further accepts the applicant’s identity as a citizen of Peoples’ Socialist Republic of Vietnam as he has claimed.
Finally, the Tribunal is satisfied from the evidence before it that the applicant has no claim to protection in any third country.
Department’s File
The Tribunal has before it the Department File relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a copy of the delegate’s decision to the Tribunal which was attached to his review application.
Background -the Applicant’s migration history
Date Event details [date]/05/2017 Arrived in Australia on FA600 visa 23/08/2017 Lodged Permanent Protection XA866 visa application EVIDENCE BEFORE THE TRIBUNAL
Background – the Applicant’s Personal details
The applicant claims to be a Kinh man born in Ho Chi Minh City, Vietnam. He lists as his family consisting of his father, mother, two sisters and one brother who all reside permanently in Vietnam. The secondary applicants are his wife ([name]) and his daughter ([name]) but both wife and daughter have withdrawn from proceedings before this Tribunal.[1] The applicant lists his previous employment as a ‘Manager in a [Project]’ in Vietnam but recorded that he was unemployed at the time of making this application. The applicant also recorded in his application that in Vietnam he had completed primary and secondary level education.
[1] see, AAT File _Notice of Withdrawal_ Wife and daughter _
He also told the Tribunal that he was currently in custody serving a prison sentence of three years (commencing in 2021) for the ‘cultivation of a drug of dependence’ which he told the Tribunal he ‘could not understand’ because he believed he ‘had not done anything illegal’ because he was employed by ‘others’ to take care of a property.
The applicant provided no further details concerning his current imprisonment.
The applicant’s claims for Protection
The Tribunal noted that the applicant made the following written claims in his application for Protection visa which was submitted to the Department and noted in summary form here, as follows:[2]
·The Applicant visited Australia on [date] May 2017 after he became a Mennonite Christian. When the applicant arrived in Australia, he sent a resignation letter to his company to resign from his job and his membership of the Communist Party of Vietnam.
·The Communist Party of Vietnam has centralised control over the State, Military and Media. If he returns to Vietnam, they will seize his passport, investigate the reasons for his resignation from the party, torture him and imprison him if he does not withdraw his decision to resign from the Communist Party.
·The applicant referred to a ‘Mr Trinh Xuan Thanh’ who ran away from Vietnam in September 2016 and publicly declared his resignation from the Communist Party and sought asylum in Germany. Thanh was allegedly kidnapped, repatriated to Vietnam and imprisoned.
·The applicant believes that what happened to Trinh Xuan Thanh will also happen to him.
(The ‘bold’ is the Tribunal’s and used for emphasis here).
[2] Department of Home Affairs [file number]_Decision Record of the Delegate _ dated 3.08.2018
The applicant provided no further claims or varied the current claims before the Tribunal and indicated (through the interpreter) he was content for the Tribunal to deal with the claims as stated in summary in the delegate’s decision record.
The applicant said that he arrived in Australia on a tourist visa on [date] May 2017.
After, his arrival in Australia, the applicant said that he was employed in a “[firm]” which closed down when Covid-19 came in 2020. Since that time, the applicant has been working on a casual basis when work was available.
The applicant explained to the Tribunal that his ‘casual work’ led him to act as a property’s ‘caretaker’ which caused him to be imprisoned for doing “illegal work” (cultivation of a drug of dependence). The applicant said that he had been imprisoned for three years (commencing in 2021).
The applicant said that he ‘did not know that what he was doing was illegal.’
Applicant’s claim that he fears persecution in Vietnam because he is a ‘Mennonite Christian’
The applicant was asked by the Tribunal – when did you become a member of this Church? The applicant’s response was “if I can remember correctly in 2015 or 2016”.
The applicant was asked to explain – how did he become a member of the Mennonite Church? The applicant said, that “I went to the church on a weekly basis”. He then told the Tribunal that “in Vietnam, there is no church but a ‘group of people’ (Christians) ‘who gather and pray together.’
The applicant was asked to explain the fundamental beliefs of the Mennonite Church. The applicant said the following:
‘I believe in the holy ghost’
The applicant was asked to be more specific about his church’s religious fundamentals of belief (as he understood them to be). The applicant said
‘we believe in Jesus Christ’ and that ‘Jesus Christ sacrificed himself to save mankind’
The applicant was asked – if his church referred to any sacred book or scriptures for religious instruction? The applicant said:
‘the Holy Bible’
The Tribunal asked the applicant to explain – what was in his view ‘the Holy Bible’? The applicant said:
At first that ‘he could not remember’
The Tribunal asked the applicant what prayers did he and other Mennonite Christians say individually when alone or collectively in their prayer groups? The applicant’s response was:
‘We pray before we eat and before we sleep…we say Jesus will help us to have good food and good health…”
The applicant said that the Vietnamese authorities do not tolerate his religion because ‘people come together to pray’ and that is ‘not allowed by the authorities.’
The applicant said that he ‘was never caught by the authorities’ ‘or detained’ but was ‘always monitored and followed…’
The applicant said that his religious group was often ‘stopped by the authorities’ but members ‘were never placed in prison…’
The applicant said that ‘when he was in Vietnam’ the authorities ‘only warned him about his religious beliefs’
The Tribunal asked the applicant if he was involved in any political activities on behalf of his Church? The applicant’s response was “no”.
The Tribunal asked the applicant – when did he resign from the CPV (Communist Party of Vietnam)? The applicant said (at first) that he “could not remember” and then told the Tribunal that ‘he submitted his resignation from the Party’ ‘when he decided to come to Australia.’
The Tribunal asked the applicant – did he submit a resignation letter to the CPV and did he have a copy of that letter? The applicant said the following:
‘I have no copy’
The applicant said that he decided ‘to resign from the Communist Party’ because ‘it was against ‘religion’ and religious belief.
The applicant said that if was to return to Vietnam, he will be arrested, placed in prison and tortured because he resigned from the Communist Party because of his religion as a Mennonite Christian.
The applicant said that while in Australia he had attended various Christian churches. The applicant said that he attended the church he described as the “[name] Church” and [a] Church in [a suburb].
The applicant provided no further information concerning his church attendances except to tell the Tribunal that he was a regular attendee to church services and bible lessons.
The applicant said that he attended (in Australia) church services every weekend and church religious classes during the week.
The applicant provided no further evidence to the Tribunal and request no further allocation of time post-hearing to submitted any further evidence for the Tribunal to consider.
COUNTRY INFORMATION _ PEOPLES’ REPUBLIC OF VIETNAM AND RELIGIOUS BELIEFS AND PRACTICE_ AND THE RULE OF LAW [3]
[3] Department of Foreign Affairs & Trade _ Country Information Report _ Vietnam_ January 2021.
RELIGION
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.
3.14 The Law on Belief and Religion came into effect on 1 January 2018. It established a role for the state in protecting religious freedoms and established legal personhood for religious groups. It requires such groups to register with the Government, and religious activities, including routine worship, festivals or conferences, to be registered. Activities can be disallowed on national security or morality grounds. The following sections focus on the day-to-day experiences of religious groups since the law came into effect.
3.15 A key distinction is between registered and unregistered faith groups. After the Vietnam War and the establishment of the unified Socialist Republic, the state created official religious groups and, since then, further groups have become registered. Registered groups worship with limited or no Government interference; those that are not registered may be pressured by Government to join the registered group. Among unregistered groups a further distinction can be made between those groups that have some (perceived) political or foreign agenda and those that do not. Different people of different religions in different areas will also have different experiences, depending on local authorities. Those in cities are less likely to experience official interference.
3.16 The Government recognises 38 religious organisations linked to 16 religious traditions, including Buddhism, Islam and Catholicism. Protestantism is broadly recognised and some international Christian organisations such as Seventh-day Adventists and the Church of Jesus Christ of Latter-Day Saints (Mormons) are specifically recognised. Distinct denominations and new sects of any religion must individually register.
3.17 The extent of difficulty that a religious group could expect to face from authorities (for example, refusal of registration, questioning or disruption of activities) can depend on where they are located. Many claims of Government interference are at the hands of local and provincial authorities rather than national authorities. Attitudes and policies can differ between authorities.
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.
3.19 There are several high-profile examples of religious figures who have advocated for religious freedom and been imprisoned. Such cases are fewer in recent years but those who have been arrested and imprisoned in the past might still be under surveillance by authorities or summoned for regular interrogation. DFAT understands this is generally limited to questioning and surveillance and not violence.
3.20 Pew Research conducted a study in 2016 of global restrictions on religion that included analysis of ‘social hostility’ against people of different religions. That report placed Vietnam as one of the countries with the lowest levels of social hostility, along with other East Asian countries. Several in-country sources told DFAT that religious intolerance between people of different faiths is not an everyday problem in Vietnam.
3.21 DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, but the situation differs from place to place. Those in large cities are particularly free to practise. Adherents associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.
Protestants
3.32 There is a wide-range of Protestant traditions present in Vietnam. Protestants are mostly members of ethnic minorities, but Kinh Protestant communities also exist, especially in the south. Issues of religious freedom and connection with land may overlap with ethnic issues. Officially registered churches that cooperate with the Government are generally able to organise and operate relatively freely and those that are engaged in political activism are likely to attract the attention of authorities.
3.33 Protestant groups can face bureaucratic difficulties. For example, gatherings might be banned on technicalities such as not having approved lists of attendees. DFAT is also aware of reports of recent examples of more serious harassment such as Protestant ministers in remote areas having assets seized or premises raided – but notes, again, that religious and political issues tend to overlap.
3.34 Registered Protestant groups experience less interference from the Government than unregistered groups. Nonetheless, DFAT understands some unregistered churches do operate. It is difficult to assess in a general way whether they have tacit approval of authorities, but some unregistered churches still operate with house church gatherings of a few people up to several hundred people. Other house churches may have a certificate of registration for prayer groups, for example for their family. The situation likely differs from place to place.
3.35 In-country sources told DFAT activities such as Protestant conferences and meetings are generally unrestricted in large cities. Efforts to expand or build churches in more remote areas can be difficult. Bureaucratic obstacles, including obtaining permits, may prevent the construction of churches or the establishment of new communities.
3.36 Conversely, Protestant house churches might provide social services with the cooperation of Government; for example, city authorities in Hanoi allowed house churches to operate drug rehabilitation services, according to the 2020 US Department of State International Religious Freedom Report. The same report also noted that Catholic and Protestant groups were sometimes reluctant to open schools or hospitals because of legal restrictions, despite the Government’s official encouragement of the opening of those services. In-country sources told DFAT of cooperation between different Protestant churches to provide food and other essentials to people during the COVID-19 pandemic. Protestant religious education is available, but again the situation may differ from place to place.
3.37 Different denominational traditions tend to have good relationships with each other while remaining largely independent. Some Protestants have relationships with churches overseas, including in Australia, and international Protestant conventions have occurred recently in Vietnam with few reports of difficulties.
3.38 The 2020 US Department of State International Religious Freedom Report notes that Protestant Christianity is growing in Vietnam. Despite some difficulties with bureaucracy, in-country sources told DFAT that efforts to evangelise and recruit new members are possible in large cities. DFAT understands that this is the case in relation to large events in which people might preach. Reports are mixed and DFAT understands that over time and in different parts of Vietnam there have been varying levels of tolerance from authorities towards evangelism.
3.39 DFAT assesses that members of registered Protestant churches face a low risk of official discrimination or harassment in relation to their faith. Adherents of unregistered Protestant churches face a moderate risk of official discrimination if they are engaged in political expression, protests or criticism of the Government (in which case see Political Opinion (Actual or imputed)). In-country sources told DFAT that Protestants experience little societal discrimination, especially in cities. The situation is different in small rural communities, where societal discrimination might be more prevalent but would differ from community to community.
FINDINGS AND REASONS FOR DECISION
Preliminary comments
Before the Tribunal explains its reasons in deciding the applicant’s claims it must point out that the mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is “well-founded.” In similar terms, if an applicant claims to race a risk of significant ham does not establish that such a risk exists or that the harm feared amounts to “significant harm.” It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect to whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[4] The Tribunal does not have any of the responsibility or the obligation to specify or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the obligations made by the applicant: see, MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191 and Prasad v MIEA (1995) 6 FCR 155 at [169]-[170].
The applicant’s claims – considered
[4] see, section 5AAA of the Act.
The applicant claimed that he was forced to leave Vietnam because he “became” a “Mennonite Christian”. He also claims that by becoming a “Mennonite Christian” the applicant “resigned” his membership of the Communist Party of Vietnam and claimed he did so, as his protest against the Communist Party’s opposition to Christianity. He also claims that if he is returned to Vietnam, he will be investigated, tortured and arbitrarily imprisoned as retribution against him because he “resigned from the Communist Party” in order to become a Mennonite Christian. For the reasons that follow, the Tribunal does not accept that the applicant is a witness of truth nor that he has ongoing and serious concerns awaiting him in Vietnam because of his religious beliefs or resignation from the Community Party of Vietnam as he claimed.
Is the applicant ‘a refugee’ as provided for in section 36(2)(a) of the Act?
(a)Does the applicant face persecution because he is Mennonite Christian?
The applicant claimed that he came to Australia because he became a Mennonite Christian while in Vietnam. The country information considered by the Tribunal indicated reports of repression, violence and harassment of religious activities and individuals involved outside state-approved religious groups is a common occurrence. The Vietnamese authorities continue to interfere in the religious activities of unrecognised branches of various churches.[5] Parishes in remote areas with majority ethnic minority populations face difficulties in registering for government recognition, uneven and inconsistent enforcement of national laws, and a lack of accountability on the part of provincial authorities.[6] Catholic leaders have commented that the most problematic regions are Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong provinces), Northwest Highlands, and Hoa Binh province.[7] Reports of harassment from the authorities including monitoring, acts of intimidation and forcibly dispersing gatherings,[8] although credible sources report that more serious acts of violence are generally related to activities such as protesting against land confiscation and anti-government activities, rather than due to a person’s religion.[9]
[5] see, Human Rights Watch World Report 2017 – Events of 2016, Human Rights Watch, 13 January 2017, at page 671, NGA465F52.
[6] International Religious Freedom Report for 2016 – Vietnam, see US State Department, 15 August 2017, OGD95BE927128, at page 20.
[7] Ibid at page 20
[8] Ibid at page 20
[9] DFAT Country Information Report – Vietnam, 21 June 2017 and later Country Information Report – Vietnam June 2021.
Recognised religious groups in Vietnam who worship quietly and conform to government policies have a low risk of official interference. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh City, although there are still constraints relating to the registration of new churches6. Government officials have highlighted the expanding opportunities of charitable and social work by the Catholic Church,[10] and Catholic groups – along with Protestants, Muslims, Baha’I and Buddhist groups – are now allowed to provide religious education to adherents.[11] In September 2016, the Catholic Institute of Vietnam opened in Ho Chi Minh City, becoming the country’s first-ever university-level institute of theology.[12] In September 2016, the Catholic Institute of Vietnam opened in Ho Chi Minh City, becoming the country’s first-ever university-level institute of theology.[13] According to a report from the UN Special Rapporteur on freedom of religion or belief, the relationship between Vietnam and the Vatican has improved markedly in recent years.[14] In May 2016, the Vietnamese government granted recognition to the Church of Jesus Christ of Latter-day Saints, while the Popular Council of the Independent Cao Dai Church has also reported declining government repression.[15]
[10] Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017, CISEDB50AD4597, p.12
[11] USCIRF Annual Report 2016 – Vietnam’, US Commission on International Religious Freedom (USCIRF), April 2016, CIS38A8012888, p.134
[12] International Religious Freedom Report for 2016 – Vietnam, US Department of State, 15 August 2017, OGD95BE927128, p.22
[13] ‘Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt – Addendum: Mission to Viet Nam (21 to 31 July 2014)’, UN Human Rights Council, 30 January 2015, CISEC96CF13238, p.13
[14] 2017 Annual Report, US Commission on International Religious Freedom, April 2017, CISEDB50AD3969, p.116
[15] ‘Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt – Addendum: Mission to Viet Nam (21 to 31 July 2014)’, UN Human Rights Council, 30 January 2015, CISEC96CF13238, p.13
The Mennonite Church in Vietnam is a Protestant denomination of Christianity in Vietnam.[16]
[16] World Christian Encyclopedia 2nd edition (Oxford University Press, 2001), first volume, p. 806
In a 2017 country report on Vietnam, the Department of Foreign Affairs and Trade (DFAT) assesses that Protestants are able to practise their faith more freely than in 2014 and 2015 but continue to face a moderate level of harassment in remote areas due to the authorities’ reluctance to register house churches.[17]
[17] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade (DFAT), 21 June 2017, CISEDB50AD4597
DFAT notes that authorities’ actions appear to be motivated by the perceived political views or activities of these groups, rather than religious beliefs. The Government continues to scrutinise some groups more than others, due to a perceived involvement with separatist political organisations. Given that a high percentage of Protestants belong to ethnic minorities, especially the Montagnards, the Government remains suspicious of ethnic minorities establishing religious groups within the sensitive mountainous regions.[18] First, having considered the country information before the Tribunal and the applicant’s evidence, the Tribunal noted, that the applicant did not reside in a remote area while living in Vietnam and made no claims belonging to an ethnic minority. The information in his visa application records that he originates from Ho Chi Minh City and belongs to the majority Kinh ethnic group which make up approximately 86 percent of the population of Vietnam.[19] Moreover, the applicant has not participated in any actions designed to embarrass or challenge the authority of the Vietnamese State. He has not participated in any demonstrations or attempted to extol the virtues and beliefs of his Mennonite faith on others with a view of challenging the general beliefs structure of his community when in Vietnam. The Tribunal accepts that persons belonging to unregistered churches and congregating with other like-minded religious believers may invite from time to time the intervention of the authorities as the applicant told the Tribunal but if persons are not actively involved in activities considered a threat to the state authority – they are usually left alone or provided with a warning on occasion as was the case with the applicant in this instance. The applicant’s evidence to the Tribunal was that he attended unregistered or informal church meetings on a regular basis and though at time monitored he was never (on his evidence) subjected to imprisonment or any other form or forms of state discipline for being a Mennonite Christian. Of particular note, the applicant was able to be issued with his Vietnamese Passport and travel documents without any issue, in order to enable him to travel to Australia and this indicates that he was not of any interest to the authorities in Vietnam for being a Mennonite Christian or for seeking to participate in Mennonite Christian activities like prayer meetings and other gatherings with other fellow Mennonites as he claimed. Therefore, on the evidence before the Tribunal, the Tribunal is not satisfied there is a real chance that the applicant had been singled out by the authorities in Vietnam because of his Mennonite Christian beliefs or for choosing to meet and pray with other Mennonites nor, that on return to Vietnam in the reasonably foreseeable future, the applicant would suffer persecution or harm for reasons relating to his religion and his religious beliefs or for any other reason or reasons as provided for in s.5(1)(a) of the Act.
(b)The applicant’s resignation from the Communist Party of Vietnam and the ‘consequences’ claimed that would result considered
[18] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade (DFAT), 21 June 2017, CISEDB50AD4597
[19] Ibid, see DFAT Country Information Report – Vietnam (2017) and (2022).
The applicant claimed to fear harm and persecution from the Vietnamese ‘party’ or ‘state’ authorities because of his decision to resign from his membership of the Communist Party of Vietnam (CPV).
The Tribunal noted from the available information that there a number of criteria for one to consider before committing themselves to becoming a member of the CPV. First, the individual should be a Vietnamese citizen aged 18 and over and committed to the political platform and policies of CPV, and must participate in the grassroots party organisation. More importantly, he (or she) must be considered to be trustworthy by one’s peers. Country information also reports that a prospective CPV member will be mentored by an existing member until he (or she) is considered ready to join. A final determination on an individual’s members is made by a party committee.[20]
[20] ‘Striving to become a member of the Communist Party of Vietnam’, Communist Party of Vietnam, 12 October 2016, CIS38A80125068. Source disclaimer: Google translations can often be poor and can contain errors; as such they give only a rough indication of the contents of a document. For any further reliance on information translated via Google Translate, a professional translation should be obtained; ‘How smart are the members of the communist party of Vietnam?’, Quora, n.d. (accessed 27 September 2017), CISEDB50AD5801
The applicant in his evidence to the Tribunal at the hearing was not clear about the issue of him writing and sending a ‘resignation letter’ to CPV prior to his leaving Vietnam, but the Tribunal does not considered the applicant’s forgetfulness of what he had done in the past as an issue of credibility concerns. Applicants, with the passage of time do forget what they have said or what documents had been provided – the provision of which were submitted with a view of it acting as ‘proof’ of what they claim to have experienced in the past or fear in the not-so-distant future. The Tribunal has reviewed the Department’s File and noted that the applicant had provided a translation of his application to leave the CPV.[21] The Tribunal noted the following comments made by the applicant:
“… I participated in the Party’s activities for over one year, during which time I always completed the tasks assigned to me well, and I did not breach the Party’s, as well as the Company’s policies.
My family currently have a private matter, as well as there is the lack of time to complete the specialised tasks as assigned by the organisation, as well as carrying out the responsibilities of a Party member.
As such, I am writing to request the different levels of the Party Committee to make an assessment to allow me to leave the party as per the Party’s charter.I am sincerely grateful to the organisation and the Party members who introduced me to the Party for making the effort to educate me and assisted me in becoming a Party member of the Communist Party thus far…
I hope that the sub-branch and the Party Committee will consider my application.”
[21] see, Department of Home Affairs File_ no. [number]_Document [7] and others attached on the PDF File.
The applicant provided no evidence as to whether or not his ‘resignation’ was accepted by the CPV sub-branch or considered by the Party Committee. When he was asked specifically about his resignation from the CPV, his response to the Tribunal was “…I cannot remember…” More to the point, there was no evidence before the Tribunal or in the Department’s File to indicate that the above letter would be interpreted or characterised by the CPV officials as either ‘anti-Party’ or ‘anti-government.’ As the applicant indicated in his resignation letter, he completed the tasks assigned to him well and did not breach the Party’s policies. He also expressed his gratitude to the CPV members who provided him with assistance and who had introduced to the Party and proceeded to explain that he was seeking to leave the Party as provided by the Party’s charter due to a ‘private matter’ and for a lack of time for him to dedicate himself to the carrying out of the CPV’s many public or popular works.
There was no indication of dissenting from any CPV policy or policies except desiring to resign because of a ‘private matter’. The applicant no indication of his opposition to CPV’s opposition to underground Christian churches or to private gatherings established to discuss religious doctrine or other issues which may involve some orchestrated and planned opposition to a particular policy initiative of the government (for example, land confiscation or environment issues). The applicant is totally silent on his reasons for seeking to leave the Party. However, he told the Tribunal that he resigned from CPV because it opposed his religion and his religious beliefs which he wished to practice as he wished with fear or hinderance.
The applicant, the Tribunal noted provided an example of an individual named Mr Trinh Xuan Thanh who purportedly resigned from the CPV and was imprisoned as a result. The applicant claimed that he would suffer the same fate as Trinh Xuan Thanh because he to resign from the CPV. From the information available on Thanh example, the country information indicated that Trinh Xuan Thanh did not resign from the CPV but was expelled. The Tribunal noted that there are a number of examples in which individuals had been expelled from the CPV, but these expulsions involved high-level officials who had been found guilty of corruption or misconduct.
The Tribunal noted that the most recent high-profile case involved Dinh La Thang, a former member of CPV’s Politburo – its highest decision-making body – who was expelled from the Party in May 2018.[22] In January 2018, Thang was sentence to 13 years in prison for economic mismanagement while he served as the head of state-administered oil company PetroVietnam.[23] A former party chief of Ho Chi Minh City and former Transport Minister, Thang had earlier been expelled from the Politburo in May 2017. A Radio Free Asia report said that while it was highly unusual for a Politburo member to face sanctions, there were instances in which previous disciplinary measures against a Politburo member had included the stripping of CPV membership.[24] Also, according to an August 2017 Time article, Trinh Xuan Thanh, a co-defendant with Dinh La Thang who received a life sentence in January 2018 for his alleged role in economic mismanagement at PetroVietnam,[25] was expelled from the CPV in 2017.[26]
[22] ‘Party Central Committee asks to implement resolution productively’, Vietnam+, 12 May 2018, CXBB8A1DA27418 and ‘The Beginning of a Political Doi Moi? Takeaways From the VCP’s Seventh Plenum’, Diplomat, The, 15 May 2018, CXBB8A1DA27402
[23] ‘Former chief of Vietnam’s state energy firm loses bid to overturn jail term’, Reuters, 14 May 2018, CXBB8A1DA27253 and ‘Vietnam jails former politburo official for 13 years in graft crackdown’, Reuters, 22 January 2018, CXBB8A1DA20633
[24] ‘Vietnam’s Community Party Further Demotes ex-Politburo Member Thang’, Radio Free Asia, 10 May 2017, CXC9040669978 and ‘Vietnam’s Communist Party Sacks Politburo Member Over Misconduct’, Radio Free Asia, 8 May 2017, CXC9040668054
[25] ‘Former chief of Vietnam’s state energy firm loses bid to overturn jail term’, Reuters, 14 May 2018, CXBB8A1DA27253
[26] Germany Expels Vietnam Diplomat After Abduction of Former Hanoi Official’, Time, 7 August 2017, CXC90406620879
There is no evidence before the Tribunal to indicate that the applicant is a high-level official or that he has been involved in corruption or other state sanctioned misconduct. Moreover, the applicant has provided no evidence to suggest that he would be harmed because of his religious beliefs and practice as a Mennonite. He was provided with a legal passport and not in any manner prevented by the state from leaving Vietnam for Australia when he decided to do so in 2017. If the applicant whether a member of the CPV or as one that had tendered his resignation from CPV for ‘private reason’ or others was not on the evidence before the Tribunal a person of interest to the authorities. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there is a real chance of persecution for one or more of the reasons provided for in sub-section 5J(1)(a) if the applicant was to return to Vietnam in the reasonable foreseeable future. Therefore, the applicant is not a ‘refugee’ as defined in section 5H and the criterion of refugee in section 36(2)(a) of the Act is not satisfied for these reasons.
CONSIDERATION OF COMPLEMENTARY PROCTECTION – section 36(2)(aa) of the Act
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s 36(2)(aa).
The applicant has claimed to fear harm from the Vietnamese state and the associate state authorities because he is a Mennonite Christian and because he chose to resign his membership of the CPV because of his religion and religious beliefs as a Mennonite Christian.
In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated in in part, that:
In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … there is a real chance that SZQRB will suffer significant harm … were he to return to Afghanistan …”
{see paragraph 246}
In the present case, the Tribunal has found that the applicant faces no real chance of serious harm in Vietnam for all the reasons he has submitted. The individual and cumulative reasoning applies equally in the complementary context, having regard to the concepts of real risk and significant harm.
Thus, the Tribunal finds on the evidence before it, offers no substantial grounds for believing the applicant faces a real risk of significant harm – in any manner or form – as claimed – as necessary and foreseeable consequence of the applicant being returned to Vietnam, for any of the reasons submitted. In particular, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk that the applicant will suffer significant harm inflicted upon him by the CPV or its state authorities because he was a Mennonite Christian and had religious beliefs which did not complement or support the general ideology of the CPV as is provided in s.36(2)(aa) of Act. Also, the Tribunal does not accept that the applicant will be harmed or persecuted by the Vietnamese state or CPV authorities because of his purported resignation from the CPV membership for ‘private reasons’ as stated in his resignation letter or for his religious beliefs or for any other reasons (the applicant not being a person of interest to the authorities on the evidence before the Tribunal). Therefore, even when observed and considered cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk he will suffer significant harm as defined in s.36(2A) of the Act.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations as provided for 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.
Peter Vlahos
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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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