1832599 (Refugee)

[2019] AATA 6505

1832599 (Refugee) [2019] AATA 6505 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832599

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Christopher Smolicz

DATE:17 October 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 October 2019 at 3:14pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – religion – Catholic – imputed political opinion – anti-abortion group – particular social group – failed asylum seeker – arrest – physical assault by police – legal proceedings – legal departure – decision under review affirmed

LEGISLATION

Migration Act 1958, 36, 65
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505
MIBP v SZTZI [2016] HCA 29

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

APPLICATION FOR REVIEW

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 who claims to be a citizen of Vietnam, applied for a Protection (Class XA) visa on 11 June 2014 and the delegate refused to grant the visa on 30 June 2015.[1]

   [1] By operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa

3. The applicant applied to the AAT for a review of the delegate’s decision.

4. On 12 April 2017 a differently constituted Tribunal (the first Tribunal) affirmed the Department’s decision not to grant the applicant a protection visa.[2]

   [2] AAT case file ref. 1509699

5. The applicant sought judicial review of the first Tribunal’s decision before the Federal Circuit Court of Australia (FCCA).

6. [In] October 2018 the FCCA quashed the first Tribunal’s decision and the matter has been remitted to the Tribunal for reconsideration.

   Criteria for a protection visa

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. 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 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 the applicant 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’).

11. In accordance with Ministerial Direction No.84, 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.

    Material under a public interest non-disclosure certificate

12. As a preliminary issue the Tribunal notes that there is a certificate issued by a delegate of the Minister under s.438(1)(a) of the Act in relation to information contained on file ([number]).

13. Section 438 permits the Minister to certify that the disclosure of information may be contrary to the public interest for any reason specified in the certificate: “that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed”.

14. In summary the Tribunal has considered the certificate and the reasons why it was issued. The Tribunal has formed the view that the certificate is not valid because no reason has been provided why the disclosure of the documents subject of the certificate would be contrary to the public interest. Secondly, the Tribunal considers the material which is subject to the certificate, namely the applicant’s entry interview record, is relevant to its decision. 

15. The Tribunal discussed this information with the applicant during the course of the hearing in accordance with the provisions at s.424AA of the Act (see below).

    Issue

16. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds because:

    ·     he is a practicing devout Catholic

    ·     of his leadership role in the Catholic Church and member of a right to life, anti-abortion group in Vietnam

    ·     he has come to the adverse attention of the authorities in Vietnam

    ·     he would be perceived to be a religious activist and anti-government

    ·     he is a failed asylum seeker

    ·     he may be charged under s.91 of the Vietnamese Penal Code

    ·     of a Departmental ‘data breach’

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

18. The applicant was born in [a specified] Hamlet in [Village 1], Cam Xuyen District, Ha Tinh, Vietnam.  He is Catholic and his race is Kinh.  He claimed he was married and had one daughter.  His wife and daughter have remained in Vietnam. He arrived in Australia by boat [in] May 2013.

19. He states that during his entry interview on 6 June 2013 he was asked to provide a brief description of his claims and it was not explained to him what was relevant to disclose to the Department.

    Summary of claims and evidence

20. In a statutory declaration dated 9 June 2014 the applicant provided information in support of his claim for protection. The claims are accurately set out in the first Tribunal’s decision and are detailed below.

21. He was forced to leave Vietnam in order to avoid serious harm.  In Vietnam there is no freedom of speech, freedom of religion or freedom of association.  The Vietnamese authorities continue to commit human rights abuses. 

22. Due to being Catholic he had several issues with the Vietnamese authorities who did not allow him to follow his religious practices or uphold his religious values.

23. He was a member of a right to life, anti-abortion group.  As a result of the Vietnamese authorities implementing a one to two child policy, abortions are prevalent in Vietnam.  His group aimed to provide information to the wider community about the negative effects of abortion.  They campaigned at health centres and abortion clinics.  They also attended orphanages and tried to help the children who resided there.

24. Due to his involvement in this group he was regularly monitored by police.

25. He had a [business] in his village.  His group would regularly meet at the [business] in his village to discuss their vision and campaigns. 

26. In April 2012 the police attended his [business] while a meeting was taking place and told him to stop the meeting.  He was not prepared to adhere to the demands of the police and so he was badly beaten.  The authorities relied on thugs to beat them and he was attacked with a knife and has scars on his [body].  The police left and told him that if he did not leave the group he would have to close his [business].  He was passionate about his involvement and so continued his association with the group.

27. [In] March 2013 the authorities attended his [business] and arrested him.  They took him to the police station and advised him that he was considered a political dissident given his actions in support of his group.  They believed his support of the group indicated he was against the government.  He was threatened and beaten and only released when his brother paid a bribe.

28. [Days later] he received a summons to attend the police station.  He was scared and ignored it. 

29. [After a few days] he received another summons and again he ignored it. 

30. [Later in] March 2013 he received a letter requesting him to attend the [specified] police station. 

31. He was scared for his safety and escaped to Saigon.  He knew if he remained in Vietnam he would be found and seriously harmed for not attending the police station.  He contacted a friend who assisted him to flee the country.

32. If forced to return to Vietnam he will be at risk of harm from the Vietnamese authorities and associated thugs who continue to subject many individuals to serious harm. 

33. He will be targeted on return due to his perceived political opinion and religion.  Further he will be subjected to harm for fleeing the country when summonsed by the authorities. 

34. He has been advised that his personal information was leaked by the Australian government and the Vietnamese government will know he has travelled to Australia and claimed asylum. 

35. The Vietnamese authorities are concerned about the reputation of the country and as such would punish him on return.  He will be targeted wherever he resides in Vietnam.  In order to move to another area in Vietnam he would require consent from the authorities and this would bring him to the attention of the authorities. 

    Submissions

36. In a submission received by the first Tribunal on 21 March 2017 the applicant’s claims are repeated.  The applicant’s agent made the following comments in response to the delegate’s decision.

37. With respect to the fact the applicant did not fully disclose his protection claims on arrival to Australia it is submitted that the purpose of the entry interview is to ascertain basic information about applicants and their journey to Australia.  As such it should not be relied upon to discount the applicant’s claims for protection.  The applicant was traumatised by the long and arduous journey to Australia and not able to fully articulate his claims in detail on entry.  Further, he was misinformed by other individuals who travelled with him about the particulars of information to disclose upon arrival.  Once he understood his information was going to be kept confidential he felt at liberty to disclose the full extent of his claims to the Department.  Furthermore, the Delegate noted the applicant provided information to Serco that was inconsistent to his claims.  It is submitted that the veracity of the records of information provided to Serco is questionable and should not be relied upon to discount the applicant’s credibility.

38. With respect to inconsistencies raised between the submission provided by the applicant after he was screened out and his statement of claims, the applicant was not afforded an interpreter or legal representative to provide the submission to the Department.  He was required to rely on the assistance of a friend and given he was in detention he was unable to obtain further support or assistance.  Given his lack of education and understanding of the process, he was not able to fully articulate his claims.  Once he was afforded the assistance of a lawyer and accredited interpreter, he was able to clarify certain aspects of his case and fully outline his protection claims.  Nonetheless the applicant’s evidence at his Departmental interview was relatively consistent with his statement of claims, adding to his overall credibility.

39. It is submitted that the Vietnamese authorities are known for targeting individuals who they deem to be political dissidents and religious minorities and it is plausible the authorities wanted to seek retribution against the applicant for his actions.  Particularly, it is submitted that the applicant was a very involved member of the Right to Life group and as such it is likely the authorities viewed him as an influential Catholic.  If the applicant did not take precautions and flee the country there is real chance he would have been subjected to serious harm from the authorities.  Further, it is submitted that if the applicant was now to return to Vietnam after spending a prolonged period of time abroad, he would be further imputed with anti-government sentiments and subjected to serious harm. 

40. It is also submitted that it is evident from the applicant’s testimony that he is a devout Catholic who was heavily involved with the Right to Life group.  Given this active involvement and his disobedience to the authorities, it is apparent he was considered a political dissident. 

41. Given these matters, it is submitted that it cannot be discounted that there is a real chance the applicant would face serious and significant harm due to his religion and imputed political opinion upon return to Vietnam.

42. It is submitted that country information referred to in the submission indicates that the Vietnamese authorities show a great hatred towards Catholics especially individuals like the applicant who are instrumental in their church community and have shown their disdain towards the government.  Further reports indicate that relocation is very difficult in Vietnam and that corruption is rife.  Further, there are reports of returned asylum seekers being jailed for trying to flee the country by boat. 

43. The Tribunal was also provided with a submission dated 20 June 2019 in which the applicant’s agent made a number of comments in response to the first Tribunal’s decision.

    Consideration of claims and evidence

44. The applicant appeared before the Tribunal by video hearing on 24 June 2019 and 4 September 2019 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent.

45. The Tribunal did not find the applicant to be a credible witness. The Tribunal found the applicant’s evidence about his involvement in the anti-abortion group in Vietnam to be vague, inconsistent and lacking in credibility. The Tribunal’s concerns with the applicant’s evidence are detailed below.

46. The Tribunal questioned the applicant about why he left Vietnam and travelled to Australia.

47. The applicant said that in Vietnam he was the owner of a [business] and was harassed by the local police. He said he purchased the [business] in 2008 when he married. The Tribunal referred the applicant to his protection visa application and noted that he declared at question 15 that he married on “[date] May 2010”. The applicant said that he was actually not married but lived with his partner and his daughter was born in [year]. The Tribunal told the applicant it was concerned about why he would claim he was married in his claim form and in his statement. In response the applicant said he was not married. He said he forgot and had a bad memory. The applicant said that since he arrived in Australia he has commenced a relationship with an Australian citizen and had ended the relationship with the woman in Vietnam. The Tribunal again asked the applicant if he could recall when he purchased the [business]. The applicant said 2011. The Tribunal told the applicant that it was concerned about the inconsistencies in his evidence. In response the applicant said he could not recall when he purchased the business and it could have been 2008 or 2011.

48. The applicant said he was the organiser of a group called “[Group 1]”. He was in charge of distributing anti-abortion leaflets. He described himself as a leader. When asked when he joined the organisation he said he could not recall and after further questioning thought it was 2008 or 2010.

49. The applicant said that he was a Catholic who worships Jesus and Mary. His local priest asked him to be involved in the anti-abortion organisation because there were a lot of women in his area who were performing abortions and as Catholics they do not believe in killing.

50. The Tribunal questioned the applicant about his faith and finds he displayed limited knowledge about the Catholic Church. For example, when asked who was the head of the Catholic Church he said “the leader in this world is Jesus.” When prompted by the Tribunal if he could name the Pope he could not provide further information. He said the Pope lived in “Fatima” and after further questioning he said he forgot where the Pope lived.

51. The Tribunal asked the applicant to explain what his anti-abortion group did in Vietnam. The applicant said the group protects life. He claims he was the leader of the group. The group had ten people. He claims that after his [business] closed at around 10 pm they would go to the hospital where abortions were carried out and bury the foetuses. If they saw a pregnant woman at the hospital seeking an abortion they would talk to the woman and ask her not to kill the unborn living child. The Tribunal asked how he was able to access the hospital and to talk to women who were having abortions. The applicant said they would speak to the nurse and bury the foetus and talk. The Tribunal asked why the patients or hospital would give them permission to bury a foetus. The applicant said the hospital would discard the foetus and they did not need to ask for permission. He could not provide more details of his work at the hospital and repeated this claim that the group would go to the hospital and ask the nurse if there were any foetuses from abortions lying around so they could bury them instead of the hospital getting rid of the bodies. He said they would do this many times and they would also distribute leaflets. The Tribunal finds the applicant’s explanation of the work he undertook as an anti-abortion activist lacking in credibility.

52. The Tribunal has had regard to country information which confirms that the Vietnamese Central government and Ministry of Health is responsible for provincial and district hospitals in Vietnam.[3] The Tribunal does not find it plausible that a State-run public hospital in Vietnam would allow the applicant as a member of an anti-abortion group to approach women in hospital who were seeking abortions and take possession of their foetus for burial.

    [3] DFAT Country Information Report Vietnam, 21 June 2017 [2.11]

53. The Tribunal asked the applicant if he could explain the laws in Vietnam in respect to abortions. The applicant said he did not know much about the law and was unable to explain how the laws in Vietnam assist women to have abortions in Vietnam. The tribunal told the applicant that it expected that he would have a greater knowledge about this topic in circumstances where he claims he was the leader of an anti-abortion group. In response the applicant said that he knew more about the political side and if people in Vietnam had a third child their salary would be reduced or they would have to pay a fine.

1. The Tribunal asked the applicant to explain the group’s view on contraception. The applicant said his group was of the view that people should use the pill or condoms to avoid having a third child and not go ahead with an abortion. The Tribunal noted that it was inconsistent for a Catholic anti-abortion group to advocate the use of contraception. After further questioning the applicant said he was not the leader of the group.  He was part of a smaller group and did not undergo any formal training. The Tribunal asked the applicant if he attended any classes. The applicant did not answer the Tribunal’s question.

2. The Tribunal asked the applicant what information was provided on the leaflets the group were distributing. He said the leaflet would advise women not to go through with abortions. The Tribunal asked the applicant if he could be more specific about the message that was on the leaflet. The applicant said the message was “anti-abortion”. The Tribunal again asked the applicant to explain their message and how they tried to persuade women not to undergo abortions. The applicant could only say that the group would try to persuade the women not to go through with abortions and make them feel guilty.

3. The Tribunal again asked the applicant if he could be more specific about what was written in the leaflet. The applicant said the leaflet encouraged the women to use the pill or condoms so that they did not need to have an abortion. He claims the leaflet was written by the priest and their job was to distribute the leaflets. He said the leaflet was written by the same priest who wrote the reference letter for him in support of his protection visa application. The Tribunal told the applicant that it found if very unusual that a Catholic priest would be writing a leaflet which would encourage women to use contraception. The Tribunal does not find it plausible that a Catholic priest would be writing leaflets promoting the use of contraception in circumstances where he is advocating a pro-life message to women in Vietnam.

4. The Tribunal asked the applicant if he knew the Catholic Church’s view on the use of contraception. The applicant said Catholics use contraception because they could have five to seven children. The Tribunal repeated the question. The applicant said contraception is to prevent abortion and did not answer the question. The Tribunal told the applicant that it was concerned that he knew very little about the Catholic Church’s views on the use of contraception. The Tribunal noted that the Catholic Church did not approve of Catholics using contraception. [4] After further questioning the applicant said that it was correct and the leaflet was only intended for the non-Catholics because Catholics can have five to eight children and it was only the non-Catholics who were having abortions.

   [4] >

   The Tribunal has had regard to the following country information which confirms that the Vietnamese communist government is providing women with access to family planning and contraception:

   In 2016, Viet Nam made its FP2020 commitment to ensure universal access to family planning and increase the modern contraceptive prevalence rate for married women to 70% by 2020 (from 67.5% in 2015). The government recently expanded their family planning program, finalizing their Costed Implementation Plan for family planning which promoted a rights-based approach to family planning for all women. Viet Nam continues to work to generate an adequate budget to ensure poor, marginalized, hard to reach, and ethnic minority groups have access to family planning. The country is presently implementing the second phase of the Vietnamese Population and Reproductive Health Strategy with the goal of ensuring all women of reproductive age have convenient access to contraceptives by 2030. The family planning program has placed a recent emphasis on promoting quality and strengthening family planning information, education, and communication, including for youth.[5]

   [5] >

   The Tribunal finds that the applicant’s views on contraception appear to be inconsistent with his claim to be an anti-government Catholic pro-life activist who was opposed to the Vietnamese government’s views on family planning.

5. The Tribunal questioned the applicant about his problem with the police in Vietnam due to his anti-abortion work.

6. The applicant said that the anti-abortion group would hold meetings in his [business] and the police would harass them. The police came on one occasion and there was a fight and he has a scar on his [body]. The Tribunal noted that the evidence was vague and invited the applicant to provide further detail. The applicant said he was beaten by thugs who were hired by the police. The applicant said it occurred on two occasions. After further questioning he said it happened on three occasions. He said the police accused them of being anti-communist and he was involved in a fight and was detained.

7. He could not recall when the incidents occurred but thought it could have been late 2012 or early 2013.

8. The applicant said when he was in custody he suffered pain in the stomach and his older brother paid a bribe and he escaped. The Tribunal noted that he has provided inconsistent evidence about his escape from the police. In his declaration dated June 2014 he said he was only released from custody when his brother paid a bribe. However in his statement dated August 2013 he claims that he pretended to be sick and needed to go out and buy medicine, ran away and called his wife.

   Section 424AA

9. Using the procedure in s.424AA of the Act the Tribunal informed the applicant it had before it a written copy of his entry interview dated 6 June 2013.[6] During that interview the applicant said that he worked as [an occupation 1] before he left Vietnam. He did not mention that he was the owner of a [business] or worked in a [business]. He claims that his income as [an occupation 1] was not good and he left Vietnam because working as [an occupation 1] was not financially viable and he had accumulated debts.

   [6] The entry interview was commenced on 30 May 2013 and concluded on 6 June 2013

10. The Tribunal notes that the interview was conducted using a Vietnamese interpreter, the applicant indicated that he understood the interpreter.

11. The Tribunal notes that the applicant was told at the beginning of the interview that the purpose of the interview was to give him an opportunity to provide any reason why he should not be removed from Australia. He was told that he was expected to provide true and correct answers.

12. The Tribunal notes that the applicant was asked the following questions and provided the following answers:

    Q.32 Why did you leave your country of nationality?
    A: Being [an occupation 1], I didn’t succeed much so I been borrowing money and then I even had to sell the [equipment].”

    Q.33 What do you think will happen to you if you return to your country of nationality?
    A: I don’t know what to do, the debt, I have to pay the debt and have nowhere to stay and the house is already been put into someone’s name for the money.

    Q34 Have you or any member of your family been associated or involved with any political group or organisation? A: No

    Q35 Were you or any members of your family involved in any activities or protests against the government? A: No

    Q38 Were you ever arrested or detained by the police or security organisations? A: No

    Q38a Did the police and security or intelligence organisations impact on your day to day life in your home country? A: No

13. The Tribunal told the applicant that according to the information he provided in his entry interview the principal reason he gave for leaving Vietnam was lack of economic opportunity. The Tribunal told the applicant that the information is relevant because it does not support his claim that he was the owner of a [business] and became the leader of an anti-abortion group in Vietnam and that he was arrested and detained by the authorities.

14. The Tribunal informed the applicant that the inconsistency is relevant because if the Tribunal was to rely on it, it would find that his evidence is not credible and the Tribunal would not accept his claims. As a consequence this would be the reason or part of the reason not to grant the applicant a protection visa and for affirming the decision under review. The applicant requested an opportunity to adjourn before he responded to the information.[7]

    [7] The Tribunal agreed to the applicant’s adjournment request. The hearing was subsequently adjourned and rescheduled to another day because of an earth tremor in Darwin at the time. The hearing was rescheduled on 4 September 2019 to enable the applicant to respond to the adverse information.

15. In response the applicant said that when he took part in the entry interview he did not know Australia had the power to protect him and that’s why the information he gave was not accurate. He claims that he now understands that the Australian authorities would not release his personal information. When he took part in the interview he had some doubts.

16. The first Tribunal’s decision acknowledged some of the applicant’s explanations for providing inconsistent versions of events, including that he was bewildered, exhausted and nervous upon arrival and he was worried the information might get back to the Vietnamese authorities. However, the first Tribunal ultimately rejected the applicant’s claims due to credibility concerns. The applicant contended that the first Tribunal had not properly engaged with the material and nature of his case, particularly his detailed explanation about why he gave a version of events quite different to what he claimed was the true version of events.

17. The FCCA found that the first Tribunal did not properly engage with the issue put by the applicant to explain the falsehood that he gave at the entry interview when assessing his overall credibility. The significant factor in this case was not simply the overall circumstances relevant to the applicant’s condition on arrival in Australia, but the applicant’s detailed or particularised explanation about why he provided a false version of events at the entry interview. The FCCA found that the explanation the applicant gave was not incredible, or so incredible that it could be disregarded. The FCCA found that it was not apparent from the first Tribunal’s reasons that the applicant’s key explanation had been squarely dealt with.

18. In assessing the applicant’s evidence the Tribunal is aware that an entry interview is not an application for protection and an entry interview serves a number of purposes one of which involves obtaining details about the applicant’s biographical details and details about his travel to Australia. The Tribunal also accepts that it is not uncommon for protection visa applicants to provide further evidence and expand on information which was provided during their entry interview when they lodge their protection application. The Tribunal also accepts the applicant may have been physically and mentally affected by his boat journey to Australia at the time of the interview and he may not have had an opportunity to speak to a migration agent at the time. The Tribunal however does find that inconsistent evidence provided at an entry interview is a relevant factor that needs to be taken into consideration when assessing the credibility of applicant’s claims.

19. In assessing the weight that should be given to the inconsistent evidence the Tribunal has had regard to the applicant’s response at the hearing and in submissions. The Tribunal notes that the applicant’s claims in his visa application and before the Tribunal related to his religion as a Catholic and that he was part of an anti-abortion movement which he facilitated out of a [business] he ran in Vietnam. However, at his entry interview, he had claimed that he was [an occupation 1] who had to sell his [equipment] to pay off a debt and did not want to return to Vietnam because he had nowhere to stay. In his statement to the Department in support of his protection claims, the applicant provided an explanation about why he had given a false statement at the entry interview, which included that he was advised by other people upon arrival to give the false version of events which would result in the Australian authorities believing that he was poor and in need of assistance. The Tribunal finds it unusual that the applicant would not disclose objective uncontroversial information such as being the operator/owner of a [business] in Vietnam. The Tribunal finds that the applicant’s response that he was not aware when he took part in the protection interview that Australia was able to offer him protection does not seem to be consistent with his claim that he travelled to Australia to seek protection.  The Tribunal also notes that the applicant was advised during his entry interview that the Department is careful to protect the privacy of all information given by him during his interview and that the information will not be made available to the authorities in his country.

20. The Tribunal finds the applicant is an ordinary Catholic who worked as [an occupation 1] before he travelled to Australia. 

21. The Tribunal questioned the applicant about the Vietnamese police summonses provided in support of his application. In post-hearing submissions the Tribunal was provided with translations of the summons documents. There are three documents titled “writ of summons”.

22. The Tribunal finds the documents of limited assistance. They purport to be issued by the Deputy Head of the [Village 1] Commune Police and the Deputy Head of the [specified police branch]. They name the applicant and require him to attend at the police station for the purpose of his “work” or “Relevant work”. 

23. The first document (1^st Issue”) is dated [in] March 2013 and requires the applicant to attend at the police station [the next day]. The second document (“2^nd Issue”) is undated and requires the applicant to attend at the police station on [another date in] March 2013. The third document (“1^st Issue”) is dated [later in] March 2013 and requires the applicant to attend at the police station [that day]. The Tribunal notes a number of discrepancies in the documents. For example the second document is not dated. It is also surprising that the police would issue a summons dated [a date in] March 2013 requesting the applicant to attend on the same day in circumstances where he had already failed to respond to the earlier summonses.

24. The Tribunal referred the applicant to country information regarding the prevalence of document fraud in Vietnam.[8]  The applicant said he understood that document fraud exists in Vietnam but maintained that it does not apply for summonses. He said that his family sent him the summonses from Vietnam by post when he was in immigration detention although he could not recall the date. The Tribunal told the applicant it was surprised that his family would risk sending sensitive information by post from Vietnam. The applicant said that the documents were hidden in clothing. The Tribunal has had regard to the summonses but has placed no weight on this evidence in light of the Tribunal’s concerns about the applicant’s credibility detailed above.

    [8] DFAT Country Information Report, 21 June 2017 [5.30-5.32]

25. The Tribunal questioned the applicant about the circumstances of his departure from Vietnam. The applicant said he departed a Hanoi airport using his own passport which he obtained through the assistance of an agent.

26. The Tribunal finds this information also appears to be inconsistent with the applicant’s claim he was a person of interest to the Vietnamese authorities, given country information indicates that Vietnamese authorities are known to confiscate passports and prohibit international travel for persons viewed as dissidents.[9]

    [9] OGCOD145417: Country Information Report Vietnam 2013, UK Home Office, 9 August 2013

27. In conclusion the Tribunal has had regard to the applicant’s evidence at the entry interview, his statement of claims and evidence provided at the hearing. The Tribunal finds the applicant’s evidence vague, inconsistent and lacking in credibility. The Tribunal does not accept the applicant was the owner of a [business] or worked at a [business] in Vietnam. The Tribunal does not accept the applicant was an anti-abortion activist who was the leader or a member of a pro-life group in Vietnam. The Tribunal does not accept the group would meet at his [business] and came to the adverse attention of the police.

28. The Tribunal does not accept the applicant attended at hospitals and handed out leaflets persuading women not to undertake abortions. The Tribunal does not accept the hospitals in Vietnam would give the applicant access to aborted foetuses for burial.

29. The Tribunal does not accept the applicant has come to the attention of the police in Vietnam in April 2012 or at any time because of his anti-abortion activities. The Tribunal does not accept the applicant was arrested by the police, assaulted and detained and escaped from custody [in] March 2013 or at any other time. The Tribunal does not accept the police issued summonses to the applicant following his escape from custody. The Tribunal finds the applicant has manufactured these claims. The Tribunal does not accept the applicant is a person of interest to the Vietnamese authorities because of his anti-abortion beliefs and activities in Vietnam.

30. Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Vietnam because he is a Catholic anti-abortion activist who is opposed to Vietnam’s family planning policies. The Tribunal finds that the applicant’s fear of persecution because of his religious beliefs or actual or imputed political opinion is not well-founded.

    Catholics in Vietnam

31. In assessing the applicant’s claims the Tribunal accepts that the applicant is a Catholic. The Tribunal must next consider whether the applicant would experience persecution in Vietnam because of his Catholic faith. The applicant said he attended church once a week in Vietnam.

32. DFAT Country Information Report Vietnam (21 June 2017) provides the following information on freedom of religion in Vietnam and the treatment of Catholics:

    3.6 Article 24 of the Constitution states that all people have the right to freedom of belief and religion, and have the right to follow any religion or to follow no religion. In addition, all religions are equal before the law; the State respects and protects freedom of belief; and ‘no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the laws’. However, as with political opinion, these rights are conditional. The Penal Code 1999 establishes penalties for practices that, in the Government’s view, undermine peace, national independence and unity. The Government’s routine application of these laws in practice leads to limits on religious freedom, particularly with regard to unregistered organisations.

    3.7 A new Law on Belief and Religion was passed by the 14th National Assembly (November 2016), providing modest improvements to the restrictive regulatory environment for religious practice. This law replaces the 2004 Ordinance on Religion and Belief (Ordinance 21) and the revised Implementation Decree 92 (promulgated in January 2013). The new law shifts the regulation process in multiple areas (e.g. attendance at seminary, ordination, hiring of clergy) from an approval system to a less burdensome notification system, allowing it to move forward with such activities, without explicit government approval. The amount of time a religious organisation must carry out religious activities as a condition for national-level recognition has been reduced from 23 years to five years.

    3.8 The treatment of religious groups varies widely across different areas of the country and is further dependent upon their relationship with the Government. The CPV maintains a strong atheistic stance against religion; however, Vietnam is traditionally a Buddhist country, with more than half of the current population (majority Kinh ethnicity) considering themselves to be adherents of Mahayana Buddhism. According to the US Department of State’s 2016 report on religious freedom, the Government continued to monitor the activities of some religious groups, mainly unregistered church groups in ethnic minority communities, due to their real or perceived political activism. Local authorities regularly blocked religious gatherings and temporarily detained members of some unregistered groups, especially in ethnic minority regions. DFAT is also aware of credible reports of local authorities either delaying or denying applications for approval and recognition of religious groups with no reason provided.

    3.9 Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
    
    

    [10] DFAT Country Information Report Vietnam, 21 June 2017 [3.9 – 3.10]

    3.10 DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV [Communist Part of Vietnam] and its policies.[10]

1. The UK Home Office in a more recent report on ethnic and religious groups in Vietnam state the following with respect to registered religions in Vietnam:

   The government has registered an increased number of religious groups and generally respects the religious freedom of those registered groups, as long as they comply with regulations.

   In general there is no real risk of state persecution or serious harm on account of a person’s religious beliefs for persons belonging to government registered groups.[11]

[11] UK Home Office, Country Policy and Information Note, Vietnam: Ethnic and religious groups, March 2018 at 2.2.11.

2. DFAT have also reported that although Article 24 of the Constitution in Vietnam states that all people have the right to freedom of belief and religion, and have the right to follow any religion or to follow no religion, as with political opinion, these rights are conditional. The Penal Code 1999 establishes penalties for practices that, in the Government’s view, undermine peace, national independence and unity. DFAT reports that the Government’s routine application of these laws in practice leads to limits on religious freedom, particularly with regard to unregistered organisations.[12]

   [12] DFAT Country Information Report Vietnam, 21 June 2017 at 3.6

3. The Tribunal finds however that religious observance and practice usually only becomes an issue when it is perceived to challenge the authorities or interests of the CPV and its policies.[13]  DFAT assess that individuals who engage in open criticism of the government face a high risk of harassment, among other things, but followers who practice their faith at home and within government-sanctioned boundaries are unlikely to attract adverse attention from the authorities.[14]  As detailed above the Tribunal does not accept the applicant was a member of an anti-abortion group and spoke out against the Vietnamese government’s family planning policies. The Tribunal has had regard to the applicant’s profile and finds that he is an ordinary Catholic who was able to regularly attend a Catholic church in Vietnam prior to his arrival in Australia.

   [13] DFAT Country Information Report Vietnam, 21 June 2017 at 3.8, 3.10, 3.13 and 3.25.

   [14] Ibid at 3.19.

4. The Tribunal has had regard to DFAT’s advice and to the findings above and is not satisfied  that there is a real chance that the applicant as an ordinary Catholic will face serious harm if he returns to Vietnam in the reasonably foreseeable future because of his religious beliefs.  The Tribunal finds that the applicant will be able to freely continue to practice his religion if he returns to Vietnam. His fear of persecution because of his religion is not well-founded.

   Data breach

5. It is acknowledged by the Department that personal information relating to people held in immigration detention was unintentionally released on the Department’s website as part of a data breach affecting some 10,000 people in detention that occurred in February 2014. 

6. The Department had advised that the information leaked could have included identities of the people in detention such as names, date of birth, nationality, gender and details about when and why an applicant was detained.[15] The Department has also advised that the information released in the data breach was only available for a short period of time before it was removed. 

   [15] Oliver Laughland, Paul Farrell and Asher Wolf, ‘Immigration Department data lapse reveals asylum seekers’ personal details’, The Guardian, 19 February 2014, downloaded from feb/19/asylum-seekers-identities-revealed-in-immigration-department-data-lapse/print, accessed 19 February 2014; Emma Griffiths, ‘Immigration Minister Scott Morrison demands answers from his Department after it accidentally published asylum seeker personal details on website’, ABC, 19 February 2014, downloaded from 5269464

7. The Tribunal has no knowledge of whether Vietnamese individuals in Australia accessed the information.  According to a report in the Guardian newspaper, citing KPMG as its source,[16] the information was not downloaded in Vietnam.[17] 

   [16] KPMG were commissioned by the Department to independently review and report on the breach. KPMG 2014, Management initiated review. Privacy breach - Data management. Abridged Report. Department of Immigration and Border Protection, 20 May, Department of Immigration and Border Protection website < and

8. The Tribunal has had regard to the High Court decision in MIBP v SZTZI which considered the impact of the data breach on asylum claims. The High Court held that in the circumstances of the data breach assuming a foreign government had accessed the information:

   …was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department's website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time. Attempting to make a finding about precisely who had obtained access to the personal information of any one of them and when, might be expected to have been hopeless endeavour.[18]

   [18] MIBP v SZSSJ; MIBP v SZTZI [2016] HCA 29 (27 July 2016) at [90]

9. Having considered the circumstances of the data breach and the High Court authority referred to above, the Tribunal finds that it is possible that the Vietnamese authorities may have become aware of the applicant’s personal information and the fact that he was in immigration detention and was an irregular maritime arrival.

10. The Tribunal finds however that the data breach occurred before the applicant lodged his protection visa application on 13 June 2014. Therefore it is not possible that the data breach released any details of the applicant’s protection claims. The Tribunal further finds that there was nothing in the data breach that would not be known to the Vietnamese authorities should the applicant be removed to Vietnam in the future.  That is, he was detained because he arrived in Australia without a visa, and this would be obvious due to his method of arrival.

11. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Vietnam because of the Departmental data breach.

    Failed asylum seeker

100.   Next, the Tribunal has considered both individually and cumulatively whether the applicant, whose details may have been accessed by the Vietnamese authorities due to the data breach, would experience persecution if he returns to Vietnam as a failed asylum seeker. The Tribunal has also considered this claim under the complementary protection criteria.

101.   The Tribunal has had regard to the applicant’s evidence and finds that he departed Vietnam legally by plane travelling on his Vietnamese passport. He subsequently travelled from Indonesia by boat to Australia. The applicant also confirmed that he was not a people smuggler.

102.   The Tribunal acknowledges that if the applicant returns to Vietnam in the reasonably foreseeable future, as a failed asylum seeker, the Vietnamese authorities may well infer the applicant was in Australia seeking protection, even though this information was not released in the data breach.  The Tribunal has therefore considered relevant country information in respect of the treatment of failed asylum seekers in Vietnam.

103.   The Tribunal has regard to the following information prepared by DFAT regarding the treatment of failed asylum seekers by the authorities in Vietnam:

Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.

Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.

DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the Government as victims of criminal activity (people smuggling), rather than as criminals facing the penalties allowed in the law for illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016.

104.   DFAT’s most recent country information report also provides the following information about the conditions for returnees:

DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.

DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.[19]

[19] DFAT Country Information Report Vietnam, 21 June 2017 [5.21]

105.   The Tribunal discussed the country information with the applicant at the hearing.

106.   In assessing the applicant’s profile as a failed asylum seeker the Tribunal does not accept the applicant was a Catholic activist in a pro-life anti-abortion group in Vietnam. The Tribunal does not accept the applicant has come to the adverse attention of the Vietnamese authorities because of his actual or imputed political opinion or religious beliefs. The Tribunal does not accept the applicant has previously been assaulted, arrested, monitored or summonsed by the Vietnamese authorities. The Tribunal does not accept that any summonses (and or letters) were issued by the authorities in Vietnam.

107.   In assessing the applicant’s profile the Tribunal also finds that the applicant was able to legally depart Vietnam on a validly issued Vietnamese passport. The Tribunal finds this information appears inconsistent with the applicant’s claim that he was a person of interest to the Vietnamese authorities, given country information indicates that Vietnamese authorities are known to confiscate passports and prohibit international travel for persons viewed as dissidents.[20]

[20] OGCOD145417: Country Information Report Vietnam 2013, UK Home Office, 9 August 2013

108.   The Tribunal has considered DAFT’s assessment, and does not accept that the applicant will be fined upon return under Article 21. With regard to Article 91, the Tribunal does not accept that this will be applied to the applicant upon his return as DFAT’s assessment states that it is unaware of it being used in the past against failed asylum seekers. The assessment records that where people have been detained upon return, it has been due primarily to actual or imputed political views.

109.   Having regard to the applicant’s profiles the Tribunal does not accept that he will be imputed with political opinion that is opposed to the Vietnamese government because he has sought asylum in Australia.

110.   Having considered the applicant’s claims individually and cumulatively the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm because he will be returning to Vietnam as a failed asylum seeker.

111.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary protection

112.   Next, the Tribunal has considered the applicant’s claims having regard to the complementary protection criterion.

113.   The Tribunal considered 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, as set out in s.36(2)(aa).

114.   In MIAC v SZQRB, the Full Federal Court held that the test for “real risk” imposes the same standard as imposed by the “real chance” test as it applies to the assessment of well-founded fear in the Convention definition.[21]

[21] MIAC v SZQRB (2013) 210 FCR 505

115.   As detailed above, the Tribunal finds that he departed Vietnam legally by plane travelling on his Vietnamese passport.

116.   Having regard to the findings above the Tribunal is not satisfied that there is any evidence that the applicant has breached or would have been suspected of breaching the Vietnamese Penal Code: Article 91 (fleeing abroad or defecting to stay overseas). The Tribunal has considered DAFT’s assessment, and does not accept that the applicant will be fined upon return under Article 21.

117.   The Tribunal accepts that the United Nations High Commissioner for Refugees and other humanitarian organisations are permitted by the government of Vietnam to provide assistance to returning refugees;[22] and Vietnamese nationals are entitled to have their ho khau (household registration) reinstated, allowing them access to government services, when they return to Vietnam from overseas.[23] [24] The Tribunal acknowledges the applicant may not be returning as a voluntary returnee under a UNHCR program, however the Tribunal considers the treatment of such returnees is relevant information as to the way in which ordinary returnees, without a political profile, are treated by the authorities in Vietnam.

[22] US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Vietnam, 24 May, Section 2(d)

[23]Immigration and Refugee Board of Canada 2009, VNM103088.E Vietnam: Process for being reinstated onto a household registration, 26 February, UNHCR Refworld <

[24]Department of Foreign Affairs and Trade 2012, DFAT Report No. 1364 – Vietnam: RRT Information Request: VNM39900, 6 March

118.   Relying on the independent country information referred to above, the Tribunal does not accept the applicant has a real risk of suffering significant harm because he left Vietnam legally over six years ago and is a failed asylum seeker.

119.   The Tribunal accepts the possibility he may be questioned at the airport upon return for the reason of having been deported from Australia, but in the absence of any information to suggest such questioning routinely occurs or involves any level of mental or physical harm, the Tribunal does not accept that being questioned amounts to cruel and inhuman treatment or punishment, or degrading treatment or punishment, and does not amount to significant harm.

120.   As detailed above, the Tribunal did not find the applicant to be a credible witness. The Tribunal does not accept the applicant is an influential Catholic or an anti-abortion activist who has come to the adverse attention of the Vietnamese authorities. For the reasons detailed above, the Tribunal does not accept that the applicant will feel compelled to speak out against the Vietnamese government’s family planning policies. The Tribunal does not accept that the applicant was arrested by the Vietnamese police, was detained and had to escape from custody. The Tribunal does not accept the applicant is a person of interest who was seen as anti-government activist and that the police issued summonses directed at the applicant. The Tribunal does not accept that the applicant has come to the adverse attention of the authorities because of his religious beliefs or for any other reason. The Tribunal does not accept that he will suffer significant harm because of his religious beliefs or because he will be returning as a failed asylum seeker. The Tribunal has had regard to the country information detailed above and does not accept there is a real risk he will suffer significant harm because his personal information may have been accessed by the Vietnamese authorities during the data breach and he will be returning to Vietnam as a failed asylum seeker.

121.   For the reasons given above the Tribunal does not accept on the evidence before it that 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 that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. 

122. Having considered the claims both individually and cumulatively, the Tribunal does not accept that 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 that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

123.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

124.   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

125.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Christopher Smolicz
Member