1828209 (Refugee)

[2019] AATA 1413

1828209 (Refugee) [2019] AATA 1413 (31 May 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828209

COUNTRY OF REFERENCE:                  Vietnam

MEMBERS:Deputy President Jan Redfern (Presiding)

Darren Renton, Member

DATE OF DECISION:  31 May 2019

DATE CORRIGENDUM

SIGNED:17 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following correction is made to the decision:

In paragraph [58](1), the word “It” be replaced with “If”, so that the text of the decision reads as follows:

“(1) If the applicant returns there is a real risk authorities will become aware of this and resume their investigations.”

Jan Redfern
Deputy President

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828209

COUNTRY OF REFERENCE:                  Vietnam

MEMBERS:Deputy President Jan Redfern (Presiding)

Darren Renton, Member

DATE:31 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 31 May 2019 at 1:45 PM

CATCHWORDS

MIGRATION – Refugee and Humanitarian (Refugee)(Class XA)(Subclass 866) visa – s36(2)(aa) Migration Act – Vietnam – protection obligations under complementary protection criteria – real chance test – significant harm – indictment- embezzlement – death penalty – remit with direction.

LEGISLATION

Migration Act 1958 (Cth) ss 5, 36, 65, 499

Criminal (Penal) Code 1999 (Vietnam), Article 7, 139, 179, 278, 279, 281

Criminal (Penal) Code 2015 (Vietnam), Article 12, 27, 40, 253, 354

CASES

BUD17 v Minister for Immigration and Border Protection [2017] FCCA 2325

BUD17 v Minister for Home Affairs [2018] FCAFC 140

Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 55

SZGIZ v MIAC (2013) 212 FCR 235

Thi Dan and Other (Case no 187/2018/HS-ST)

SECONDARY MATERIALS

Ministerial Direction No. 56

DFAT Country Information Report, Vietnam, 21 June 2017

Procedures Advice Manual – PAM3 ‘Refugee and humanitarian – Complementary Protection Guidelines’

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

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [an age] year old male born in Vietnam. He first arrived in Australia on 10 October 2010 using a Vietnamese passport on a visitor visa which remained in effect until 24 October 2010. On 30 July 2011 the applicant was stopped by NSW police for a traffic offence and detained as a visa over stayer pursuant to s.189 of the Act and transferred to [a] Immigration Detention Facility at that time. He was subsequently transferred to [another detention centre] where he has been in detention since his transfer.

3. The applicant lodged an application for a protection visa on 11 August 2011. The application was refused by a delegate of the Minister on 14 September 2011 and on 2 December 2011 the former Refugee Review Tribunal (RRT) affirmed the refusal.

4. The applicant lodged a further protection visa application on 5 August 2013. This visa application was permitted as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, allowing a further protection visa to be made under the complementary protection provisions which came into effect on 24 March 2012. The basis for this application was a claim that the applicant was concerned he could face the death penalty as a result of alleged criminal conduct by him in Vietnam before he came to Australia.

5. This further protection visa application was refused by a delegate on 12 February 2015 and on 25 May 2015 the RRT affirmed the decision. The Federal Circuit Court set aside the Tribunal’s decision on 23 June 2016 and the review was remitted for reconsideration to the Administrative Appeals Tribunal (AAT) following the amalgamation of the former RRT with a number of other federal Tribunal’s into a newly constituted AAT.

6. The matter was again considered by the Migration and Refugee Division of the Tribunal, differently constituted, on 22 March 2017. The Tribunal affirmed the decision of the delegate concluding that, while there was a real risk the applicant would face a long period of imprisonment if he returned to Vietnam and was convicted of various for fraud offences, there was only a remote possibility he would be charged with the more serious charges of bribery, which may involve a sentence of capital punishment. It was on this basis that the Tribunal decided the applicant’s circumstances did not engage the complementary protection criterion.

7. The applicant sought judicial review and the Tribunal decision was upheld by the Federal Circuit Court but on 23 August 2018 the Federal Court remitted the decision for reconsideration on the basis the Tribunal had erred in failing to consider crucial material, relevantly the terms of a criminal indictment against the applicant in Vietnam, that was alleged to be central to his case refer (BUD17 v Minister for Immigration and Border Protection [2017] FCCA 2325 and BUD17 v Minister for Home Affairs [2018] FCAFC 140).

8. The applicant appeared before the Tribunal on 11 March 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages. He was represented by his registered migration agent, who provided written submissions and documents in support of the application prior to and following the hearing.

9. The issue for determination is whether the applicant meets the complementary protection criteria, namely whether there is a real risk he will face significant harm if he is removed from Australia and returned to Vietnam. Relevant to the circumstances and the claims made by the applicant is the question of whether there is a real risk the applicant will be prosecuted for alleged historical criminal offences and thereby face the death penalty if he returns to Vietnam.

OUTLINE OF CLAIMS MADE BY THE APPLICANT

10.  The applicant claims that he operated a real estate business in Vietnam through a company. He claims the business was so successful that during 2009 and 2010 senior communist party officials wanted to become hidden equity partners without investing money in the business. The applicant claims he refused to facilitate this or to pay the officials bribes and as a result land owned by his company was rezoned. This resulted in losses to the associated properties and caused problems with existing lenders.  The applicant claims he was forced to obtain loans on the black market at high rates and turned to corrupt banking officials who operated a bank. The applicant claims that if he is returned to Vietnam he will be prosecuted by Vietnamese authorities for serious fraud offences and will be liable to the death penalty.

11.  In support of his claims, the applicant provided to the Tribunal an indictment from the People’s Procuracy of Ho Chi Minh City dated [date redacted].

12.  The indictment against the applicant and eight others named the applicant as the ‘ringleader’ of frauds alleged to have taken place between 2009 and 2010 where large amounts of money were misappropriated from a Vietnamese authority to the benefit of companies owned or controlled by the applicant. According to the indictment, the applicant was the chairman of a real estate company. He set up a number of companies, appointed directors to those companies and used his connections with officials from a Vietnamese bank to borrow money through those companies. The applicant allegedly used falsified documents as security to borrow money and, with the assistance of the other accused, fraudulently appropriated a significant amount of money. It is alleged the Vietnamese bank made significant losses as a result of the transactions.

13.  The indictment concerned a number of individuals charged under the Vietnam Criminal (Penal) Code 1999 (the 1999 Penal Code) for appropriating property through swindling (Article 139), breaching regulations on loan provisions in the operating of credit institutions (Article 179(3)) and abusing positions and powers while performing official duties (Article 281(3)). The indictment followed an investigation which was concluded in November 2011. An Interpol Red Notice was issued in respect of the applicant for the swindling charge under Article 139. A Red Notice is a notice issued by international law enforcement agencies seeking co-operation for agencies in other countries.  It is an alert not an arrest warrant or a request for extradition.  

14.  It is apparent that the indictment resulted in prosecutions and, according to a translated version of a judgment of the People’s Court of Ho Chi Minh City (the Criminal Judgment), eight of the accused referred to in the indictment were convicted of a number of offences under the 1999 Penal Code. They were sentenced to various terms of imprisonment between three and twenty two years and, in some cases, also ordered to pay compensation. One accused was given a suspended sentence. The applicant was not listed as a defendant in the criminal proceedings. He left Vietnam for Australia before the investigations were finalised. Relevantly, the People’s Court of Ho Chi Minh City made findings against each of the accused arising out of conduct alleged to have been undertaken by the applicant or on his behalf.

15.  The applicant fears that if he returns to Vietnam he will be prosecuted by authorities for various offences of bribery of government officials under the Penal Code and if he is convicted of those offences he will be exposed to the death penalty. Even if he is not sentenced to the death penalty, the applicant fears he will be attacked and seriously harmed or killed while he is detained awaiting trial because his evidence may be damaging to other officials.

RELEVANT LAW

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

17. There is no dispute that the applicant’s claims under the refugee grounds have been determined and refused and that his present claim for protection is confined to a claim based on the complementary protection criterion. As such, the issue for consideration is whether the applicant satisfies the criterion for complementary protection under s 36(2)(aa) of the Act.

18. Section 36(2)(aa) provides that if a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the person will suffer significant harm.

19. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. For instance, there may be a real risk of suffering harm even though the possibility of the harm occurring is well below 50 per cent refer (Chan v MIEA (1989) 169 CLR 379 and MIEA v Guo (1997) 191 CLR 559).

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

21.  There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These circumstances arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act. None of these exclusions apply in the circumstances of this case.

22.  In accordance with Ministerial Direction No.56, made under s 499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Guidelines contain the Department’s interpretation of the Act, and set out examples of circumstances which may or may not fall within the protection visa criteria in s 36(2)(a) and (aa). We have reviewed the most recent DFAT Report for Vietnam dated 21 June 2017 and the Complementary Protection Guidelines and our assessment of the application and relevance of the Report and Guidelines is set out below.

23.  Whether the applicant is a person in respect of whom Australia has protection obligations is to be assessed on the facts as they exist when the decision is made. As such, while the applicant made his application for protection in 2013 in respect of matters alleged to have taken place in 2009 and 2010, it is our task to assess his claims having regard to all available information, including country information, known at the time of our decision. However, we must necessarily make our assessment about whether there is a real risk the applicant will suffer the claimed harm in the reasonably foreseeable future. Making an assessment of whether there is a real risk something will happen in the foreseeable future is a difficult exercise, particularly when it is apparent that not all information that would assist the Tribunal in making an informed decision is available.

CONSIDERATION OF CLAIMS AND EVIDENCE

24.  The issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm. In this case, the significant harm is claimed to be the death penalty or, if the applicant is not sentenced to the death penalty but he is imprisoned, significant physical harm or death caused by or on behalf of certain officials.

25.  The PAM3 Complementary Protection Guideline gives some guidance on how this may assessed and, relevant to the circumstances of this case, provides at [13] as follows:

In order for there to be a real risk of the death penalty, it is not sufficient that the imposition of the death penalty be in theory a possibility: it is necessary for there to be a real risk that the death penalty will actually be carried out. This is because a non-refoulement obligation would not arise in situations, for example, where:

• the death penalty may be imposed if the person were convicted of a criminal offence but there is no real likelihood of their being tried (such as where no warrant for their arrest exists and/or there is information to the effect that the crime or the person is not of interest to the authorities) or

  • the person may be convicted and a death sentence may be imposed but there is information to indicate that actual executions are rare or non-existent.

  In such situations, there is no real risk of the application of death penalty, because there is no real risk that the death penalty will be carried out. The situations mentioned above are examples only and are not intended to be exhaustive.

26.  The difficulty in this case is that there is a paucity of information about the current status of the investigation involving the fraud alleged to have been perpetrated by the applicant and, in particular, the likely or even possible outcome of any such investigation and resulting prosecution.

27.  This is an issue that has faced the Tribunal as previously constituted on two occasions. Further information and submissions have now been provided which have clarified some aspects of the applicant’s claims, although we have no further information about the status of the investigation or the prospects and outcome of any prosecution against the applicant by Vietnamese authorities. However, the nature and scope of the available evidence was considered in some detail by the previous Tribunal and by the Federal Court. While our role on reconsideration is to review this matter afresh, the findings and enquiries made by the previous Tribunal and the findings of the Federal Court are instructive.

28.  In the previous review, the Tribunal made considerable efforts to ascertain whether the applicant could be charged with offences under the Penal Code which carried the death penalty. The results of those enquiries were not conclusive and the Tribunal, appropriately in our view in the circumstances of the case, decided to proceed ‘on the most favourable basis for the applicant’. Relevantly, it was accepted by the Tribunal that there was a possibility those involved with the applicant in past criminal behaviour and those already charged and convicted of other offences could in the future be charged with the more serious offence that would invoke the death penalty and that assessorial liability could be imposed on the applicant.

29.  Notwithstanding this, the Tribunal found there was only a remote possibility, and therefore not a real risk, of this happening. In summary, the Tribunal found that the applicant’s co-accused had already been convicted, they had not been charged or convicted of the more serious charge or any other offences that may incur the death penalty and the Interpol notice relating to the applicant revealed that the arrest warrant was for a lesser offence which did not carry the death penalty. Having regard to these matters, the Tribunal concluded that the possibility the applicant would be exposed to the death penalty if he returned to Vietnam was therefore highly speculative.

30.  The case was appealed, firstly to the Federal Circuit Court and then to the Federal Court. The Full Court of the Federal Court (Robertson, Steward and Thawley JJ) considered the case and found that it could be inferred the Tribunal overlooked the terms of the indictment and the applicant’s statement dated 20 March 2017 otherwise it would not have reasoned that it was highly speculative and remote that the applicant could be exposed to further investigations, charges and potentially a conviction where the death penalty could be imposed. The Federal Court did not make a finding on the issue of whether there was a real risk that the applicant would be exposed to significant harm on his return to Vietnam because this was not part of its role on review. However, it found that the material before the Tribunal was such to disclose jurisdictional error by the Tribunal apparently failing to consider critical material that supported a central part of the applicant’s case about his fear.

31.  In his statement dated 4 March 2019, the applicant claims that if he returns to Vietnam he will be prosecuted for embezzlement or taking bribes under the 1999 Penal Code (or under the equivalent provisions of the 2015 Penal Code as amended). According to a statement provided to the Tribunal by the applicant’s representative, the representative was unable to obtain expert evidence on whether the applicant would be prosecuted for embezzlement because the lawyer in Vietnam who was contacted to provide a written opinion was not willing to do this for fear of reprisal from the Vietnam government. However, the representative provided hearsay evidence of the lawyer’s opinion which was to the effect that there was a risk the applicant would be prosecuted. This evidence carries little weight because it is hearsay, could not be tested and did not disclose the basis for the opinion. As such there is no expert evidence available to the Tribunal about the operation and effect of the relevant criminal provisions under the law of Vietnam.

32.  Even though the Tribunal does not have expert evidence about the likelihood and prospects of any prosecution, we have access to a translated version of the laws of Vietnam and, in particular, the Penal Code. In the absence of expert evidence, we can assess the operation and effect of the relevant provisions, although we accept it is possible our assessment of those provisions may be somewhat imperfect. We are not familiar with the relevant legislation, the practice of the authorities who enforce the legislation and any practical or procedural issues that may impact on a prosecution. We also accept that we have no evidence of the prosecution policy of the authorities or the outcome for sentencing in cases such as this. On the other hand, we have access to country information which reports on cases where the death penalty has been imposed and the applicant has provided us with a recent decision of Thi Danh and other (Case no 187/2018/HS-ST) which is said to be comparable to this case.

33.  These matters are relevant to this review and to the factual findings we are required to make. For this reason it is useful to outline the relevant provisions of the Penal Code.

Relevant criminal provisions under the law of Vietnam

34.  The Penal Code was amended in 2015 but at the time the applicant is alleged to have engaged in the misconduct involving officials the relevant law was that contained in the 1999 Penal Code. The indictment referred to Articles 139, 179(3) and 281(3) of the Penal Code. This is a reference to provisions in the 1999 Penal Code.

35.  There is no dispute that Article 139, being the offence referred to in the Interpol Red Notice, does not carry the death penalty. It is also relevant to note that Articles 179(3) and 281(3) do not carry the death penalty. However, under Article 278(4), which relates to embezzling property, a person who abuses their position to appropriate property valued over 500 million VND (Vietnamese Dong) is liable to be sentenced to 20 years imprisonment, life imprisonment or capital punishment. Article 279(4), which relates to officials abusing their positions resulting in the appropriation of property valued at 300 million VND or more or causing other particularly serious consequences, attracts a sentence of 20 years imprisonment, life imprisonment or capital punishment.

36.  The applicant’s representative submits that the provisions of the 2015 Penal Code apply but has not provided any substantiation or analysis as to why this is so.  It is therefore necessary to consider the relevant application provisions of each Penal Code. The 2015 amendments to the Penal Code took effect on 1 January 2018.

37.  Article 7 of the 1999 Penal Code provides:

The temporal application of the Penal Code

1. The provision applying to a criminal act shall be the provision currently in force at the time such criminal act is committed.

2. Provisions defining a new offense, a heavier penalty, a new aggravating circumstance or restricting the scope of application of suspended sentences, the exemption of penal liability and/or penalties, the reduction of penalties or remission of criminal records, and other provisions not in favor of the offenders, shall not apply to acts of criminal offense committed before such provisions take effect.

3. Provisions canceling an offense, a penalty, an aggravating circumstance and/or defining a lighter penalty, an extenuating circumstance or broadening the scope of application of suspended sentences, the exemption of penal liability, penalties, the reduction of penalties, the remission of criminal records and other provisions in favor of the offenders, shall apply to acts of criminal offenses committed before such provisions take effect.

[Emphasis added]

38.  The effect of Article 7 is that the provisions of the 1999 Penal Code apply if a criminal offence is committed at the time the relevant provision is in force. However, if new provisions come into force which have the effect of creating a more favourable criminal outcome, the accused gains the benefit of the new provisions, which will apply. This is also recognised in Article 7 of the 2015 Penal Code which is in similar terms at the 1999 version of the Penal Code.

39.  To form a view about which provisions apply it is necessary to undertake analysis of the relevant provisions of the 1999 and 2015 Penal Code.

40.  We have assessed the provisions and it is apparent that, while a number of the provisions in the 1999 Penal Code and the 2015 Penal Code relevant to this case are the same or in similar terms, there are important differences.

41.  First, Articles 353 (embezzlement) and 354 (taking bribes) of the 2015 Penal Code, which are in similar terms to Articles 278 and 279 of the 1999 Penal Code, provide a higher threshold for the potential imposition of the death penalty. Relevantly, the death penalty may only apply where the property embezzled is assessed at more than or equal to 1 billion VND or where the offence results in property damage of more than or equal to 5 billion VND. This compares to 500 and 300 million VND under the 1999 Penal Code and is clearly more favourable to an accused.

42.  Secondly, there are important differences in relation to the potential to commute the death penalty between the 1999 Penal Code and the 2015 Penal Code which would potentially be more favourable to the applicant.

43.  Article 35 of the 1999 Penal Code provides:

Article 35.-Death penalty

Death penalty is a special penalty only applied to persons committing particularly serious crimes.

Death penalty shall not apply to juvenile offenders, pregnant women and women nursing children under 36 months old at the time of committing crimes or being tried. Death penalty shall not apply to pregnant women and women nursing their children under 36 months old. For these cases, the death penalty shall be converted into life imprisonment.

In cases where persons sentenced to death enjoy commutation, the death penalty shall be converted into life imprisonment.

44.  Article 40 of the 2015 Penal Code provides as follows:

Article 40. Death sentence

1. Death sentence is a special sentence imposed upon people committing extremely serious crimes that infringe national security, human life, drug-related crimes, corruption-related crimes, and some other extremely serious crimes defined by this Code.

2. Life imprisonment shall not be imposed upon juvenile offenders, women who are pregnant or raising children under 36 months of age, and people from 75 years of age or older when they commit the crime or during trial.

3. The life sentence shall not be executed in any of the following cases:

a) The convict is pregnant or a woman raising a child under 36 months of age;

b) The sentenced person is 75 years of age or older;

c) The person sentenced to death for embezzlement or taking bribes, after being sentenced, has returned at least one third of the property embezzled or bribes taken, closely cooperates with the authorities in the process of investigation or trial, or has made reparation in an effort to atone for the crime.

4. In the cases specified in Clause 3 of this Article or the death sentence is commuted, the death sentence shall be replaced with life imprisonment.

45.  As can be seen from the above provisions, the 2015 Penal Code allows for the death penalty to be commuted in relation to embezzlement and taking bribes if there has been co-operation with authorities and the accused has made reparation of at least one third of the property embezzled or taken.  While neither of those would assist the applicant in this case for the reasons outlined in more detail below, the fact that the 2015 Penal Code provisions are more favourable, on the face of it, supports the applicant’s submission that the 2015 Penal Code provisions apply.

46.  Thirdly, given the passage of time since the offences are alleged to have been committed it is relevant to consider whether there are any differences in the relevant statutes of limitation under each Penal Code and whether any prosecution would be statute barred in any event.

47. Articles 23 of the 1999 Penal Code and 27 of the 2015 Criminal Code contain limitations for criminal prosecution but both provide that if a person flees or evades capture, the limitation period will not commence to run until the person turns themselves in or is arrested. The limitation period under both the 1999 and 2015 Penal Codes is five years for less serious crimes, ten years for serious crimes and 20 years for ‘particularly serious’ crimes (under the 1999 Penal Code) and ‘very serious’ or ‘extremely serious’ crimes (under the 2015 Penal Code). Under the 1999 Penal Code the limitation period is only 15 years for ‘very serious’ crimes. Arguably the 1999 Penal Code is more favourable. On the facts of this case it would not matter because any prosecution against the applicant would not be statute barred under either Penal Code. In short, if the applicant returns to Vietnam there is unlikely to be an impediment to prosecution under either Penal Code.

48.  One of the issues raised in the first Tribunal hearing was the issue of whether it was possible the applicant could be charged and convicted of the commission of an offence under Article 278(4) of the 1999 Penal Code as an organiser or instigator on the basis of assessorial liability. This was said to be relevant to the issue of whether the applicant could be prosecuted under Article 278(4), being an offence where the death penalty may be imposed by the Courts. If the applicant could not be prosecuted under this provision but, for instance, could be prosecuted under the equivalent provisions of the 2015 Penal Code, the 1999 Penal Code would apply because the 2015 Penal Code would clearly be less favourable to the applicant.

49.  There is no reference to ‘assessorial liability’ in either the 1999 or 2015 Penal Code, although there are references to ‘complicity’.  Article 20 of the 1999 Penal Code provides:

1. Complicity is where two or more persons intentionally commit a crime.

2. The organizers, executors, instigators and helpers are all accomplices. The executors are those who actually carry out the crimes.

The organizers are those who mastermind, lead and direct the execution of crimes.

The instigators are those who incite, induce and encourage other persons to commit crimes.

The helpers are those who create spiritual or material conditions for the commission of crimes.

3. The organized commission of a crime is a form of complicity with close collusion among persons who jointly commit the crime.

50.  The equivalent provision in the 2015 Penal Code is Article 17, although it is relevant to note that Article 17 includes the definition for ‘organised crime’ as a ‘form of complicity in which the accomplices cooperate closely in committing the crime’. Committing organised crime is an ‘aggravating factor’ for the purposes of sentencing under the 2015 Penal Code.

51.  While we cannot be certain that these provisions impose assessorial liability to expose the applicant to prosecution under Article 278(4) of the 1999 Penal Code, it is likely that the concept of assessorial liability is similar to complicity. However, nothing ultimately turns on this. While there is no expert evidence about the operation and effect of the provisions of the 1999 and 2015 Penal Code, on the plain reading of the legislation and having regard to the matters alleged against the applicant, we are satisfied that it is possible he could be liable to be prosecuted under either or both of Articles 278(4) and 279(4) of the 1999 Penal Code or Articles 353 or 354 of the 2015 Penal Code, if he returns to Vietnam. Each of these provisions carries the death penalty.

52.  Relevantly, it is apparent that Article 278(4) of the 1999 Penal Code or Article 353 of the 2015 Penal Code could apply directly to the applicant’s circumstances because it could be argued that he abused his position as a director of various companies to appropriate property valued over 500 million VND (under the 1999 Penal Code) or over 1 billion VND (under the 2015 Penal Code). Based on the findings of the Ho Chi Minh People’s Court in 2013, there is no dispute that the value of the property alleged to have been misappropriated was in excess of 1 billion VND and the amount of damage caused was in excess of 5 billion VND. Alternatively, it could also be argued that the applicant was complicit in the commission of the offences by the officials in contravention of Article 279(4) of the 1999 Penal Code or Article 354 of the 2015 Penal Code.

53.  In summary, having regard to the provisions of the 1999 and the 2015 Penal Code and the fact that the 2015 Penal Code provisions on the whole seem to be more favourable to the applicant, we accept the submission of the applicant’s representative that the relevant provisions that would apply to the applicant if he was to return to Vietnam would be those in the 2015 Penal Code.

Is there a real risk of significant harm?

54.  The previous Tribunal found that while this was a possibility it was highly speculative and any risk was remote and not real. This was essentially for two reasons. First, the other accused defendants had not been charged with these offences and had been sentenced on the basis of lesser offences. Secondly, the arrest warrant for the applicant referred to in the Red Notice only mentioned Article 139.

55.  As already noted, the Federal Court found that the Tribunal member must have overlooked the terms of the indictment and the applicant’s statement which set out in some detail why the applicant was concerned he could face the death penalty if he returned to Vietnam. The Federal Court addressed the relevant evidence in some detail and it is useful to extract the relevant part of the judgment detailing this evidence. At [47] to [55] the Court noted as follows:

47. The Tribunal concluded that the appellant’s claim that he would be charged and convicted under Article 278(4)(a) was “highly speculative and remote”. That conclusion was based upon the Tribunal’s rejection of the submission that, if the appellant returned to Vietnam, there would be further investigations of the officials who had already been convicted. This submission was rejected because “the factual evidence ... does not indicate that”.

48. However, the factual evidence which the Tribunal stated it had regard to did in fact support the submission which had been put. It did so in various respects.

49. The indictment included (underline emphasis added):

In this matter, [the appellant] is the RINGLEADER. Currently, [the appellant] and [another named individual] fled. They are currently charged of "Appropriating property through swindling". [AB77]

...

After arresting [the appellant] and [the other named individual], the roles and responsibilities of [three other named individuals] will be considered again according to regulations. [AB78]

...

In the matter, there are a number of issues related to signing blank commercial contracts to support loan applications for [the appellant]. In the future, if [the appellant] is arrested, such issues will be reviewed and each person related these issues will be considered again according to regulations. [AB79]

50. The appellant in his submission to the Tribunal dated 20 March 2017 expressly drew attention to the indictment.

51. The indictment had been provided by the appellant with a “Submission” from the appellant dated 11 March 2013. That submission included the following (errors in original, footnotes omitted):

The Government of Vietnam did not want to sentence all people involved in the INDICEMENTS in [date redacted] until I am arrested. The article is annexed and marked “D”. MY MATTER was adjourned. [AB31]

52. Annexure D to the statement purported to be a translation of an article and included the following (emphasis added):

[THE NAMED BANK] MATTER IS ADJOURNED BECAUSE THE RINGLEADER IS YET TO BE ARRESTED.

In the afternoon [date redacted], after three days hearing, the People's Court of Ho Chi Minh City was unable to sentence 8 accused in related to damages of [VND$X billion] at [a named bank].

The matter was returned to police for further investigation because many details cannot be proved at the hearing. After additional investigation, new charges will be laid against the accused based on new evidence.

The most important factor in the decision of the People’s Court of Ho Chi Minh City is that [the appellant] ... is yet to be arrested. [The appellant] is the ringleader. [The appellant] is not at the hearing, the testimony of accused is not challenged by [the appellant].

The trial went more than expected time (the trial was initially planned for 2 days) because the defendants did not provide evidence honestly. They created many difficulties at the hearing.

...

In this matter, [the appellant] is the ringleader. [The appellant] fled and has been hunted, if he is arrested then he will be prosecuted. [AB139]

53. The appellant’s statement of 11 March 2013 also stated:

After MY MATTER was adjourned, I was told by my associates in Vietnam that the secret police in Vietnam knew that I would be able to be removed from Australia in January 2013.

On the deportation date, my associates in Vietnam told me that there were few different groups of police waiting for me at the Ho Chi Minh City International Airport. One of the groups was a special secret police from Ha Noi.

I was told that after the plane from Australia to Vietnam landed, the special secret police from Ha Noi was not be able to locate me at the Ho Chi Minh City International Airport. The special secret police from Ha Noi thought that other police groups were corrupted to help me to escape and did not know that I did not board the plane. There was turmoil at the Ho Chi Minh City International Airport.

If [two other named individuals] involved less than [VND$Z billion] were executed, then I shall not see how the Government of Vietnam will spare my life when I involved more than [VND$X billion] and I also knew so many Senior Officials involved in corruption in Vietnam.

54. The Tribunal overlooked the terms of the indictment referred to above and overlooked the aspects of the appellant’s statement referred to above which provided an evidentiary foundation for the submission which the Tribunal concluded, incorrectly, was not supported by the evidence.

55. The submission dated 20 March 2017, to which the Tribunal did not refer in its reasons, also directed attention to the indictment and contained material which supported the appellant’s submission.

56.  In our view, the evidence referred to by the Full Court, while not conclusive about the likelihood or prospects of any prosecution, carries considerable weight and is compelling. It is clear from the extract of the indictment and the media reports of the criminal trial referred to above that the fact the applicant had fled the jurisdiction inhibited the investigation and prosecution. There is also evidence prosecutors were seeking to pursue the applicant through the issue of the Interpol Red Notice and there is no evidence to suggest prosecutors are no longer interested in pursuing the applicant. The fact the Interpol Red Notice is not current does not exclude the possibility that authorities in Vietnam will reactive their investigations of the applicant returns to Vietnam.

57.  Accordingly, with the benefit of the further submissions and evidence provided by the applicant, we have come to a different conclusion to the previous Tribunal.

58.  We find there is a real risk the applicant will be prosecuted on his return with the more serious offences under either the 1999 or 2015 Penal Code, which both attract the death sentence as a penalty. We also find there is a real risk of the Court in Vietnam imposing the death penalty if the applicant is convicted.  Our reasons for these findings follow:

1. If the applicant returns there is a real risk authorities will become aware of this and resume their investigations.  If this occurs there is also a real risk the applicant will be charged with criminal offences.

2. If the applicant is charged, it is possible he could be charged and convicted of the more serious offences of embezzlement or bribery. The fact the Red Notice only referred to the swindling offence and the applicant’s co-accused were not prosecuted with these offences does not negate the possibility of a more serious prosecution of the applicant. In this regard, is relevant to note that the applicant was alleged to have been the instigator of the fraud involving Vietnamese officials and this is one of the relatively small number of offences considered by Vietnam to warrant capital punishment.

3. We have not assessed, nor are we in the position to assess, the strength of any prosecution or defences the applicant may have. However, we do not need to do so.  We must be satisfied on the basis of the available information that there is a real risk of significant harm if the applicant is returned to Vietnam. In the absence of evidence to the contrary, we are so satisfied.  

4. We are satisfied that there is the potential for the applicant to face a sentence of capital punishment. While Articles 35 (1999 Penal Code) and 40 (2015 Penal Code) make it clear that the death penalty is only imposed for the most serious matters, the applicant submits, and we accept, that there is a real risk of this given the seriousness of the allegations, the amount of money alleged to have been misappropriated and the applicant’s alleged role in the fraud.

5. In support of this submission, the applicant provided a copy of an English translation of the Judgment of the Ho Chi Minh City People’s Court in a case involving Thi Danh and other (Case no 187/2018/HS-ST) where Mr Thi Danh, who was the Head of the Tan Phu District Compensation Board was sentenced to the death penalty for misappropriating 54 billion VND. In imposing the sentence the Court took into account of Mr Thi Danh’s lead in the role. In his submission to the previous Tribunal the applicant referred to two other cases in the Ho Chi Minh City People’s Court where the accused defendants were sentenced to death for embezzlement and misappropriation of significant amounts of money not dissimilar to and potentially less than the amounts which may be the subject of any subsequent prosecution of the applicant.

6. The offences in this case are serious and the sentences imposed by the Ho Chi Minh City People’s Court against the other accused, who played lesser roles and in some cases had paid compensation, is an indication of the seriousness of the alleged fraud and the approach of the Court and the prosecution to such offences.  The fact the applicant is alleged to have been the ringleader and has fled the country, to avoid prosecution, is likely to draw him to the attention of prosecutors.  There is no limitation period or bar on the applicant’s prosecution and given the other accused have been prosecuted, convicted and sentenced, it is more likely their evidence could be used in aid of any prosecution. For instance, prosecutors may not wish to pursue the co-accused for additional charges, other than the official in respect of which there was insufficient evidence, and this may facilitate their co-operation and the use of evidence against the applicant.

7. According to the DFAT report for Vietnam at paragraphs 4.5 and 4.7, DFAT reports that there are 22 serious crimes under the 1999 Penal Code where the death penalty can be applied. Two of those offences include receiving bribes and embezzlement. It is noted in the report that under the 2015 Penal Code the number of offences punishable by death was reduced from 22 to 18. Our review of the 2015 Penal Code discloses that the offences of embezzlement and receiving bribes still carry the death penalty. This suggests Vietnam maintains a severe approach to sentencing wrongdoers involved in embezzlement and bribery of public officials. It is also relevant to note that according to the DFAT report (para 4.7) there have been 429 reported cases of executions for serious crimes for the period 2013 to 2016 and there are approximately 680 death row inmates.

8. While there is a possibility that a death sentence for embezzlement or taking bribes can be commuted under the provisions of 2015 Penal Code, this is only where the accused has closely cooperated with authorities and has made reparation to atone for the crime. In this case, the applicant has fled the jurisdiction and inhibited the investigation and his prosecution. He has not made reparation and his evidence is to the effect that he has no funds or assets in Australia or Vietnam.  We accept this evidence.  

59.  We therefore conclude that this is not a case, as contemplated by the PAM3 Complementary Protection Guidelines, where the imposition of the death penalty is in theory a possibility but there is no real risk of the application of the death penalty. For instance, this is not a case where the applicant is unlikely to be tried if he returns to Vietnam or, if he is tried and convicted, that he is unlikely to be executed because the death penalty and actual executions are rare. In our view, the risk is real and not remote.

60.  The applicant raises additional grounds for his fears but it is unnecessary for us to deal with those claims because we have found there is a real risk he will face the death penalty if he is removed from Australia and returned to Vietnam.

61. None of these matters reflect well on the applicant’s character but the applicant’s visa has not been refused on this basis and character refusals (under s 501 of the Act) are made and reviewed by this Tribunal on a different basis. For instance, if the Minister is satisfied that the criterion in s 36(2)(aa) is satisfied, relevantly, that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia and returned to Vietnam, the Minister may still refuse to grant a protection visa.

62. These matters are not before us and the issue for determination is whether, on the available material, we are satisfied the applicant meets the criterion set out in s 36(2)(aa) of the Act. For the reasons given above, we are satisfied.

63. The Tribunal is therefore satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

DECISION

64. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Jan Redfern
Deputy President

Darren Renton
Member