1834044 (Refugee)

1834044 (Refugee) [2022] AATA 976 (9 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834044
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Vlahos
DATE:9 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 9^th February 2022 at 7.45AM
CATCHWORDS
REFUGEE – Protection visa – Vietnam – broad claims – economic and political situation – disadvantage as a non-Communist party member – no higher education – lack of skills to find work – land dispute – applicant’s work experience in Australia – vibrant economy in Vietnam – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 15 June 2018. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 20 November 2018.
The applicant appeared before the Tribunal on 1 February 2022 to give evidence and present arguments via a teleconference which was deemed necessary due to the persistence of the Covid-19 Pandemic Emergency having been declared in the State of Victoria. They applicant had consented to appearing before the Tribunal via teleconference procedure and had provided that consent to the Tribunal prior to the hearing being held.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origin and assessment
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Vietnam and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. On this basis therefore, the Tribunal further accepts the applicant’s identity as is claimed.
Department file
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with his application for review.
Background – Migration history
[In] 2010 the applicant was issued with a Vietnamese Passport and on 21 June 2011 the applicant lodged and application for a Class TU subclass 573 Higher education sector visa - offshore. [In] July 2011 the applicant arrived in Australia. On 24 September 2015 the applicant lodges an application for a further Class TU subclass 573 Higher education sector visa whilst onshore. On 24 September 2015 the applicant was granted 010 Bridging visa A. On 30 September 2015 the applicant’s subclass 573 visa ceases. On 26 November 2015 the applicant is refused a further subclass 573 visa, and he seeks review of this visa refusal decision. On 3 December 2015 the applicant is granted a Class WB subclass 020 Bridging visa.[1] [In] December 2015 the applicant departs Australia on subclass 020 visa. [In] January 2016 the applicant arrives in Australia as a holder of a subclass 020 visa. [In] June 2016 the Applicant departs Australia on a subclass 020 visa.[2] [In] June 2016 the Applicant arrives in Australia as the holder of a subclass 020 visa. On 10 August 2016 the Migration Review Tribunal (MRT) affirms the subclass 573 visa refusal decision. On 7 September 2016 the applicant’s subclass 020 visa ceases. The applicant remains in Australia as an unlawful non-citizen following the cessation of his subclass 020 visa. On 15 June 2018 the applicant lodges a Class XA subclass 866 Protection Visa application (his current application which now before the Tribunal). On 4 July 2018 the applicant is granted a Class WC subclass 030 Bridging C visa in association with his Protection visa application.
[1] Departmental records indicate applicant applied for a subclass 020 visa so he can return to Vietnam
[2] Departmental records indicate applicant applied for a subclass 020 visa so he can return to Vietnam
EVIDENCE AT THE HEARING
In his application form, the applicant declares that he is [an age]-year-old never married man born [in] An Gian province in Vietnam. The applicant claims to be ethnically Kinh, a Christian and speaks, reads, and writes Vietnamese and English. The applicant declared that his parents still live in Vietnam while he has an Australian citizen aunt living in Australia. He has not declared any siblings (in his application form) but he told the Tribunal that he has a sister living with his parents in Vietnam. He also declared that he has regular contact with his parents by phone twice a month. The applicant claims he has never travelled to any other country in the past [several] years and his residential address history indicates he lived in An Giang province in Vietnam from birth until he first came to Australia in July 2011. Departmental checks indicate, the Tribunal noted, that the applicant may have applied to enter other countries in the past. The applicant also claims he has never worked in his life although recent records show the applicant requested and was recently given permission to work in August 2018. According to his application form, the applicant has not completed any studies since arriving in Australia as a student.
The applicant’s claims for Protection
The applicant’s claims for protection and supporting evidence are contained in the Department of Home Affairs File [and] his claims are summarised as follows:[3]
[3] Protection visa application form: [deleted] refers
§The applicant is seeking protection in Australia, so he does not have to return to Vietnam.
§The applicant left Vietnam in order to study in Australia, but he no longer wants to return to Vietnam as there is no freedom, no democracy or human rights there, and he will be unfairly treated by the government.
§The Vietnamese government has sold the country to the Chinese and the Chinese are “invading” Vietnam in various ways.
§Fish along the Vietnamese coast are being poisoned by toxic waste from Chinese factories and there are questions about the safety of food in Vietnam.
§The Vietnamese government is corrupt, and they oppress those who criticise them or who raise their voices against them.
§The Vietnamese army and police assist the government to oppress the Vietnamese people. For example, the applicant’s family has been mistreated by the local authorities – they were unfairly treated over a land ownership dispute and they have had thugs come and threaten them and also destroy their crops on the land.
§The applicant claims that his family sent him to Australia so he would get away from an unfair system.
§The applicant wants also to protest against the government’s leasing of Vietnamese land to the Chinese for a lease period of 99 years.
§The applicant has not sought help in Vietnam since many prisoners of conscience have been unfairly imprisoned as the system is “rotten” and the authorities do not protect the people.
§The applicant has not tried moving anywhere as the system [in Vietnam] is “rotten”.
§The applicant claims he will be harmed or mistreated if he returns to Vietnam, for example, food safety is an issue, there is no real democracy, no real freedom and no human rights in Vietnam and the government is “corrupt.”
§The applicant does not think the authorities in Vietnam can and will protect him as one needs money to bribe the authorities to access services.
§The applicant will not re-locate anywhere in Vietnam because he can face harm everywhere in Vietnam.
The applicant through an interpreter was asked by the Tribunal whether he wished to qualify or add any further claims or to clarify the present ones before the Tribunal proceeded to hear his submissions on the claims submitted as part of his Application for Protection. The applicant told the Tribunal that he understood the Tribunal’s question and had no further claims to make nor wished to add or qualify what had been submitted and now the subject of this review.
Further to the personal information provided by the applicant in his Application form, the applicant told the Tribunal that he did not attend University in Vietnam but continued his studies at a local college/institute for approximately one year. The applicant described his studies in the field of ‘[deleted].’
After attending this local college/institute, the applicant told the Tribunal that he ‘completed his application’ and ‘paperwork’ to gain his visa for study in Australia.
The applicant told the Tribunal that he arrived in Australia in 2010.
The applicant stated that the area of study he attempted in Australia centred around ‘[deleted]’ studies. This study was undertaken at [an] Institute, in Melbourne. However, the applicant told the Tribunal that he did not complete his studies because he the tuition fees were ‘too expensive.’
The Tribunal was told that the applicant stopped his studying while in Australia in/or about 2014.
The Tribunal was told that the applicant attempted to gain another student visa but his application was rejected by the Department and he later, was not successful in his review of the Department’s decision at the then – Migration Review Tribunal (‘MRT’).
The applicant told the Tribunal that after his visa was rejected, he continued to remain in Australia but was working at a local ‘construction company’. He currently is earning after tax AUD$900.00.
The Tribunal asked the applicant to explain as to why, he did not wish to return to Vietnam. The applicant explained to the Tribunal, ‘because he was [now] [age]-years-of-age’ it was ‘difficult for him to find work’.
The applicant was asked by the Tribunal – could he not work in Vietnam as an unskilled labourer?’ The applicant replied: ‘no’. He then went on to explain that he was not attractive to the labour market in Vietnam because he ‘did not have a degree’ [education].
The applicant was asked by the Tribunal and requested to explain as to what problem did, he have with the Vietnamese authorities which prevented him from returning to Vietnam? The said: ‘My father and sister have joined the CPV (‘Communist Party of Vietnam’) for employment.’ The applicant went on to tell the Tribunal that ‘if my sister and father did not join the CPV they would have been sent to a labour camp where one works and only earns AUD100.00 a month.’
The applicant explained ‘without being a member of the CPV, people (like him) could be relocated to different work sites.’ Whereas, according to the applicant, his father and sister are ‘fine with their work’ because of their membership of the CPV.
The Tribunal asked the applicant – why couldn’t he do as his father and sister have done, that is, join the CPV and gain meaningful employment? The applicant explained ‘I (the applicant) do not have a degree or some other qualification I cannot do anything.’ The applicant emphasised the point that he ‘was [age]-years-of-age’ and he could not ‘attend [a college or university] for education in Vietnam.’
The Tribunal asked the applicant – was there anything that prevented him from joining the CPV? The applicant said that ‘that he was not clear about the policies of the CPV…’
Land dispute issue claim examined
The applicant was asked by the Tribunal to explain in detail the ‘land dispute’ he claimed his family had with the local authorities. The applicant explained that the parcel of land in dispute belonged to an uncle of the applicant who continuously worked the land with the assistance of members of the applicant’s family. A group of villagers wanted to appropriate this land to grow rice and had attempted to take the land by force. The applicant told the Tribunal that the local authorities did nothing when the problem was presented to them.
Thereafter, according to the applicant, his uncle (and family) referred the land dispute to the courts for adjudication and settlement. The matter is still in the courts, but the villagers involved were, according to the applicant, ‘causing issues’.
Claims concerning ‘Chinese influence’ in Vietnam and its threat
The applicant was asked by the Tribunal to explain – what was the issue/s affecting him personally concerning the claimed increase of Chinese commercial influence in Vietnam? The applicant response was to admit to the Tribunal that ‘these claims did not directly relate’ to ‘his matters.’ The applicant went on to explain that he had heard of these issues [concerning Chinese influence in Vietnam] from ‘others’ and ‘included them in his submission…’ The applicant conceded to the Tribunal that the inclusion of these claims was ‘unreasonable…’
The Tribunal asked the applicant to state clearly – whether these claims [concerning the Chinese influence in Vietnam] related to his situation? The applicant’s response was ‘no’.
The applicant went on to tell the Tribunal that he did not wish to return to Vietnam ‘because he could not find lucrative work…’
The Tribunal asked the applicant – was there anything that prevented him from joining the CPV? The applicant told the Tribunal that he had been a member for a period of the Communist Party’s ‘Youth wing’ while he was at College studying but had no current links with VCP.
The Tribunal asked the applicant – what prevented him from joining (if you wish) the VCP? The applicant’s response was to tell the Tribunal that his involvement with the VCP only happened while he was in college not after he left college.
The applicant then proceeded to tell the Tribunal that he had ‘nothing further to add’ to all that he had already told the Tribunal.
Documents for the Tribunal to consider: The applicant informed the Tribunal that he would make all endeavours possible to provide the Tribunal with ‘copies’ of ‘all court documents’ in a translated format concerning the current legal proceedings involving his uncle and family. The Tribunal provided the applicant with seven days to provide this additional information and any other information relevant to the applicant’s claims.
COUNTRY INFORMATION – VIETNAM – ECONOMY & THE COMMUNIST PARTY OF VIETNAM’S CONTROL OF THE STATE.
According to the Department of Foreign Affairs and Trade (DFAT), Vietnam has a population of around 93.4 million people and economic reforms that began in 1986 have transformed the country from one of the poorest in the world to “low middle-income status” in the ensuing 25 years. Nevertheless, although the poverty rate has declined significantly from 58 per cent in the 1990s to 13.5 per cent in 2014, it is still above 50 per cent in ethnic minority areas and people living in rural areas are more susceptible to falling back into poverty due to declining productivity growth and economic vulnerabilities.[4]
Main Political Party
[4] CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
According to DFAT, the Communist Party of Vietnam (CPV) is the country’s only legal political party. The CPV tightly controls political discourse, with very few formal avenues for political participation. During the 22 May 2016 National Assembly Elections, of the 496 elected candidates, 475 were Party members and only two independent candidates were elected. Although Vietnam’s Constitution enshrines freedom of speech, assembly, association, and demonstration, these are restricted by several ‘national security’ provisions under Vietnamese law. In practice, the Vietnamese Government does not tolerate political expression against the CPV, the Government or its policies.[5]
[5] CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
While holding CPV membership remains beneficial for career advancement and provides for greater social and economic opportunities, it is no longer essential for success in Vietnam today.[6] Recent economic reforms have provided greater opportunities for non-CPV members, and increasingly young Vietnamese no longer see having CPV membership as key to economic and social success due to the increasing availability of private sector jobs.[7]
Government Treatment of dissent
[6] OGD95BE927332: ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, p.1
[7] CXBD6A0DE19603: ‘Vietnam’s Divide: Slow Healing, Fewer Prospects for Children of U.S. Allies’, Bloomberg, 24 December 2015; CXCB3E63421361: ‘As Vietnam booms, Communist Party struggles to keep up’, Reuters, 17 January 2011; OGD95BE927332: ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, p.15

The Vietnamese Government has used laws to curb dissent, including Article 79 (overthrowing the State), Article 88 (conducting propaganda against the State) and Article 258 (abusing rights to democracy and freedom to infringe upon the interests of the State). These offences carry penalties ranging from prison sentences of between six months and 20 years, to life imprisonment or capital punishment. However, DFAT advises it is not aware of any recent cases where the death penalty has been applied for political activities.[8] Activists claimed in February 2018 that more than 170 people are currently in prison after having been convicted of offences such as attempting to overthrow the government, conducting anti-state campaigns and “abusing democratic freedom to infringe the state’s interests”.[9]
[8] CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
[9] CXBB8A1DA22004: ‘Vietnam: Activists Demand Release of Jailed Dissidents’, Eurasia Review, 12 February 2018
DFAT advises that political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities. However, the treatment from authorities generally depends on the individual’s level of involvement. DFAT also assesses that those who are known to authorities as active organisers or leaders of political opposition are at high risk of being subject to intrusive surveillance, detention, arrest and prosecution. DFAT is also aware of large numbers of credible reports of prominent political and human rights activists, as well as former political prisoners of conscience, being monitored, being prevented from leaving homes and/or attending certain meetings and events. Such individuals have reportedly also been subjected to widespread physical and psychological harassment, which in most cases has not been the subject of credible police investigations.[10]
[10] CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
Public protests and gatherings are therefore monitored or restricted by authorities and permits are required from local authorities for demonstrations or gatherings, which can be arbitrarily denied without explanation.[11] Despite legal restrictions and threats of crackdown by the police, Vietnamese citizens however continue to express their views through numerous protests.[12] Activist groups seeking to exercise their freedom of expression or association may experience harassment, surveillance, restrictions on their movement, short-term detention and physical attack, with attacks on rights campaigners taking place in many regions of Vietnam.[13] While “re-education camps” ceased operation in Vietnam in the 1990s, the Government still uses other forms of mechanisms for detaining and silencing political dissidents. These include house arrest, administrative detention, or prison sentences, along with the regular movement of dissidents throughout the detention network to isolate them from family and support networks and other detainees.[14]
[11] OGD95BE927332: ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, p.22
[12] CIS7B83941599: ‘BTI 2018 Country Report Vietnam’, Bertelsmann Stiftung, 22 March 2018, p.12
[13] CISEDB50AD4751‘: No Country for Human Rights Activists: Assaults on Bloggers and Democracy Campaigners in Vietnam’, Human Rights Watch, 18 June 2017, p.2
[14] CIS12687: ‘Vietnam: The Silencing of Dissent’, Vol. 12, No. 1(c), Human Rights Watch May 2000, p.5 (sourced from UNHCR Refworld); OGD95BE926333: Country Reports on Human Rights Practices 2015 - Vietnam, US Department of State,13 April 2016, Section 1(e)
DFAT has confirmed that individuals who protest against the Government or who openly criticise the CPV are likely to attract adverse attention from authorities. Protests against land confiscation, human rights issues or the government’s handling of issues are shut down by authorities and individuals actively protesting in these issues will attract police intimidation and harassment. DFAT advises that low-level protesters can feel intimidated by police presence, and some are sometimes detained and released on the same day by authorities. A few reported cases of uniformed and plain-clothes officers using violence to break up protests were also reported in 2016, including the beating of protesters with batons in order to disperse crowds.[15]
[15] CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
Vietnamese authorities have also jailed a number of well-known bloggers in an attempt to curb online criticism of the government. In 2017, authorities arrested at least[16] rights bloggers and activists for exercising their civil and political rights in a way the government perceived threatened national security.[17] In June 2018, there was a string of large demonstrations across Vietnam in protest against a new cybersecurity law and a draft law on special economic zones.[18] Authorities responded by arresting and imprisoning some of those involved. For example, in July 2018 a court in southern Vietnam jailed 15 individuals for their involvement in protest activity,[19] in central Binh Thuan province, 10 people received prison terms of up to three-and-a-half years.[20]
Restrictions of freedom of movement
[16] NGED867A63: ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, p.625
[17] CXBB8A1DA30346: ‘Vietnam: a month of mass protests’, Lowy Interpreter (The Interpreter), 27 June 2018
[18] CXBB8A1DA32816: ‘Vietnamese court imprisons peaceful demonstrators’, UCA News (UCAN), 1 August 2018
[19] CXBB8A1DA32816: ‘Vietnamese court imprisons peaceful demonstrators’, UCA News (UCAN), 1 August 2018
[20] CXBB8A1DA32143: ‘Vietnam jails 10 more for protests over economic zones’, Reuters, 23 July 2018
Country information also indicates that movement across Vietnam’s borders is closely monitored and broad limitations have been placed on the right to freedom of movement. The Immigration Department of the Ministry of Public Security (MPS) is responsible for identifying and recording travellers who pass through international airports, including Vietnamese citizens.[21] The MPS has total discretion to prohibit Vietnamese citizens from leaving or entering the country on the grounds of “safeguarding national security and social order and safety”.[22] The Vietnamese government has also imposed limitations on the movement of some activists and religious leaders, including those outspoken in their criticism of the government and political dissidents amnestied with probation or under house arrest.[23]
[21] CISEC96CF15116: ‘Q & A on the Right to Freedom of Movement in Vietnam’, Civil Rights Defenders, 14 September 2015, pp.2 & 4
[22] OGD95BE927332: ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, pp.24-25
[23] OGD95BE927332: ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, pp.24-25
Authorities often also confiscate passports or deny the issuance of passports for people that the Government deems a threat to national interests[24] and also prevents the exit and entry of individuals who openly express anti-government views. Several high-profile individuals considered to be political dissidents or activists, or their family members, have been prevented from leaving or returning to Vietnam, or have had passports confiscated or withheld on vague or unexplained grounds.[25]
[24] CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
[25] OGD95BE927332: ‘Country Reports on Human Rights Practices for 2017 – Vietnam’, 20 April 2018, p.25; CISEDB50AD4597: ‘DFAT Country Information Report – Vietnam’, Department of Foreign Affairs and Trade, 21 June 2017, p.24
FINDINGS AND REASONS
The mere fact that a person claims fear of persecution for a particular reasons or reasons does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim or claims. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see, MIEA v Guo (1997)191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Discussion, analysis, and conclusion concerning the applicant’s protection claims
The applicant has made broad claims about not desiring to return to Vietnam because the situation there are not beneficial to him.
The Tribunal noted from the applicant’s Protection Application, which was submitted to the Department and refused, that he raised a number environmental, pollution and food safety concerns in Vietnam. He also claimed that there was no freedom, no democracy and no human rights in Vietnam and he also claimed that the government was corrupt, did not take care of the welfare of the Vietnamese people and had allowed Vietnam (through its economic policies) to be takeover the economy. The applicant also claimed that he intended to join demonstrations to oppose the leasing of Vietnamese land for 99 years to the Chinese.
During the hearing the applicant was asked by the Tribunal to provide details concerning his claims about the deterioration of the environment in Vietnam and the corruption and influence of the ‘Chinese’ in Vietnam, and how this directly affected him. In particular, the Tribunal enquired of the applicant as to how he would make these concerns known to the Vietnamese authorities.[26]
[26] see the Applicant’s submitted claims to the Department – Application – claims for Protection.
In response to the Tribunal’s enquiries concerning environmental pollution, concern for food safety and the encroaching influence and control of the ‘Chinese’ in the Vietnamese economy and the associated (with this) ‘corruption’, the applicant told the Tribunal that these issues were included as part of his claim for protection as ‘background’ to what was happening in Vietnam today. The applicant admitted to the Tribunal that these claims had nothing to do with his circumstances.
What was the applicant’s real concern, his claim, that he was now [age]-years-of-age and with no real job prospects in Vietnam if, he had to return in the near future, to Vietnam. The applicant told the Tribunal that those with better prospects for employment in his country were persons who had from a very early stage become fully engaged with the ruling party – the VCP. In his situation, the applicant had some involvement with the VCP’s ‘youth wing’ when he was studying at college but no other contact or association whatsoever with the ruling party. Indeed, his father and sister (according to the applicant’s evidence) had been members of the VCP and had gained for themselves employment. The applicant also submitted that being a non-Communist Party member, he had no prospects whatsoever of gaining for himself a proper and well-paying employment. Instead, because he was not a member of the VCP, he would be given low paying employment and will be treated as if he was in a labour camp.
According to DFAT,[27] in its country information report, Vietnam has a population of around 93.4 million people and economic reforms that commenced in 1986 have transformed the country from one of the poorest in the world to “low middle-income status” in the ensuing 25 years. Nevertheless, although the poverty rate has declines significantly from 58 percent in the 1990s to 13.5 percent in 2014, it is still above 50 percent in ethnic minority areas and people living in rural areas are more susceptible to falling back into poverty due to declining productivity growth and economic vulnerabilities.[28] Indeed, the country information is indicative of Vietnam, having a vibrant economy which enables persons to participate at varying degrees in the employment market. The applicant, though unskilled as he claims, has had considerable experience (as he stated in evidence) by working while in Australia in the construction industry and that experience would make him attractive for similar work if he was to return to Vietnam in the reasonably foreseeable future. Furthermore, is there anything which might prevent him from engaging in Vietnam’s labour market if he returned to Vietnam and was seeking employment?
[27] DFAT Country Information Report – Vietnam CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
[28] CISEDB50AD4597: DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017
From the country information referenced by the Department in its decision and by the Tribunal, it is clear, that Vietnam is a state-centred economy and political system. The Communist Party plays a predominant role at all levels of the political, economic, and social system of that country. Democratic intercourse as experienced in a Western-styled democracy like Australia, is not be found, the Tribunal concedes this. Moreover, dissent and criticism of the state and the VCP is not tolerated and punished severely by the state.
Dissidents face harsh responses from the Vietnamese authorities and suffer for their dissent long-term imprisonment with hard labour, difference in treatment (probably state sanctioned discrimination) and even death. The applicant on his own admission is not a dissident and has no particular quarrel with Communist-state or its vast state-dominated bureaucracy. He was able to depart Vietnam without any issue whatsoever, and would on the evidence before Tribunal, be permitted to re-enter that country without questions being raised with him by the state authorities for any reason or reasons. He admits, he is not a member of VCP as is his father and sister are, but this evidence does not indicate – the evidence – before the Tribunal, that he has in any way been the subject ostracism by the local or national VCP officials for any reason barring him, if he chose (at some future time) in joining the VCP (if he wished) in order to gain a better employment opportunity as he claims is the case with his father and sister who are VCP members. Either way, whether he stays out of VCP or chooses to join it, the applicant is not a ‘person of concern’ or ‘interest’ to the state in Vietnam and may return to Vietnam and assume his life as he lived it before without any issues. From the evidence before the Tribunal there is nothing to suggest that the applicant’s concerns regarding his current or future employment prospects would in any way be prevented in any aspect whatsoever if he chose not to become a member of VCP. He might not get a better paying employment within the state apparatus (as a member of VCP) but he has prospects of employment in the wider economy as a labourer experienced in the construction industry in Vietnam (because of his current work in Australia). Therefore, for reasons discussed above, the Tribunal finds concludes that the applicant’s fear and persecution is not well-founded because he was unable to find a better paying employment because he was not a member of VCP or for any other reason or reasons provided for in s.5J(1)(a) of the Act.
Court proceedings involving the applicant’s uncle concerning a parcel of land which involves the applicant’s family
The applicant also claimed that his uncle, he, and his family were involved with persons in his town in a ‘land dispute.’ The dispute concerned primarily his uncle who tilled a particular parcel of land as agricultural land, but certain local interests wished to appropriate the land for other more lucrative commercial options. The applicant provided very little detail concerning this land dispute except to tell the Tribunal that the dispute was before the courts. The applicant was provided with an opportunity by the Tribunal to provide further details and evidence of this land dispute but regardless of providing an undertaking that he would provide this evidence concerning this dispute.
On 8 February 2022, the applicant provided documentary evidence concerning his uncle’s land dispute. The documentary evidence received by the Tribunal with translations were as follows:[29]
§A copy of a ‘report’ to [Agency 1] of An Giang Province dated [December] 2019 in the name of [Name 1]. The report raises two matters a ‘land boundary dispute’ and ‘penalties for violation on plants.’
§A copy in translated form of a ‘decision’ of People’s Committee of [named] City dated [August] 2015. That document enforces on the named individual, [Name 1] certain remedies and to pay certain imposed fines for certain crop violations.
§A copy in translated form of a ‘Notice of unsuccessful mediation’ dated [November] 2012 concerning the land dispute between the applicant and another party.
§A copy of a ‘petition’ signed by the applicant’s uncle complaining about another party ‘signing invalid papers’ concerning the land dispute.
[29] see, AAT File
From the evidence before the Tribunal (oral evidence) and documentary this land dispute is currently before the courts awaiting resolution. It is [Agency 1] of An Giang Province since [December] 2019. There is nothing in the documents provided to the Tribunal to indicate that the applicant’s uncle and the applicant and his family as co-litigants to any proceedings as is claimed have not or would not be given an opportunity to advocate their concerns and seek a proper resolution through the available legal process as it functions in Vietnam. These legal proceedings have a considerable history – commencing in 2011 through to 2019.[30] Indeed, from the country information referenced by the Tribunal concerning the operation and effectiveness of the legal system in Vietnam, it would seem that Vietnam has an independent (to a degree) judicial system which allows for effective adjudication and resolution of disputes of this kind.[31] Moreover, the Vietnamese state has in place alternative means for resolving such issues as the one the applicant has claimed – involving mediation of disputes and arbitration procedures.[32] There is nothing in the evidence before the Tribunal to suggest the applicant’s uncle or his family in general as co-litigants, are in anyway in harm’s way or would be prejudiced concerning this claim or issue over a parcel of land. It is before the courts or before some kind of adjudication process (according to the applicant) and there is a robust and to a strong degree an independent legal system in Vietnam which would when it has run its course deliver the justice the applicant’s uncle and his family wish concerning this land in dispute.
[30] see AAT File
[31] Court system in Vietnam
[32] Mediation Culturally, Vietnam is not a litigious society. A large number of disputes are resolved outside of court. Vietnamese laws also highly emphasize the role of mediation. Mediation is a mandatory part of certain litigation procedures such as civil litigations, labour and marriage and family litigations. The State encourages the resolution of civil and family disputes and violations of the law which do not amount to criminal offences by means of mediation. At the local community, groups of non-professional mediators are set up to carry out this mediation mandate.

The country information as accessed by the Tribunal and incorporated within this decision above (see, footnotes (29) and (30)) as far as it concerns the adequacy of protection as provided to individuals by the Vietnamese legal and judicial system does acknowledge that there are some issues and inadequacies in the legal and judicial system in Vietnam. Having said that, the Tribunal finds that protection in Vietnam is available (if required) and is provided by the authorities – the State - in Vietnam, and consists of an appropriate legal system, and an adequately functioning judiciary as is required by s. 5LA(2)(c) of the Act. Indeed, while there may be some issues with the system in place, there is nothing before the Tribunal to suggest that the state (in Vietnam) would be unable or unwilling to protect the applicant’s uncle, the applicant and his family as litigants in this particular set of circumstances (the adjudication of the land dispute), were they to require the state’s protection of their proprietary rights and property as he claims. The Tribunal therefore concludes and finds that effective protection measures as defined in s.5LA of the Act are available to the applicant’s uncle, to the applicant and his family (as co-litigants) in Vietnam and that all of them may access this legal and judicial protection if and when he (or his family members in Vietnam) choose to do so in the reasonably foreseeable future to protect their proprietary rights and property.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Vietnam in the reasonably foreseeable future and therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Complementary Protection criteria
Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection as provided for in s.36(2)(aa) of the Act. For the reasons given in paragraphs [52] to [63] above, the Tribunal does not accept that the applicant was in any way precluded from participating in the labour market in Vietnam in his attempts to find a more lucrative employment. Also, the Tribunal does not accept that there is any political or personal reasons why the applicant might not be prevented from joining the VCP in his quest to find a better-paying employment within the vast state-run bureaucracy if he so desired nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Vietnam there is a real risk that he will suffer significant harm because of any objection he might have concerning joining the VCP in the past nor that his uncle or himself and other family members not being able to protect their family’s proprietary interests and property from any unlawful encroachments caused by others through the legal and judicial system in Vietnam – if and when required. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
Member
- Extract from Migration Act 1958

ATTACHMENT
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Vietnam has a two-tier court system, including courts of first instances and courts of appeal. The judgments are then susceptible to further reviews under special circumstances. The court system consists of the Supreme Court, the provincial People’s Courts and the district People’s Courts. There are specialised courts at the Supreme Court and at the provincial level. These include the Criminal Court, Civil Court, Economic Court, Administrative Court and Labour Court. The Chief Justice of the Supreme Court is elected by the National Assembly, has the term corresponding to the term of the National Assembly and can be re-elected. Other Justices of the Supreme Court are appointed and removable by the President and have the term of 5 years. The Chief Justice of the Supreme Court appoints and removes judges of the inferior courts. Under the law, Vietnamese courts render their judgments independently. However, there are still many concerns on the independence of the courts. The tribunal panels at the first instance are composed of both judges and people’s jurors (usually one judge and two people’s jurors). People’s jurors at each level are lay people elected by the People’s Council of the same level at the recommendation of the Vietnam Fatherland Front and could be re-elected. The participation of these jurors who are not qualified legal expert and who are elected by the local government raises questions on their capacity and on the influence of the local government on the court’s activities. The law in 2002 centralized the appointment of the judges by the Chief Justice of the Supreme Court instead of appointment by the local People’s Council. The budgeting of the local courts, previously decided by the provincial Departments of Justice, is now decided by the National Assembly. This hopefully will make the local courts more independent from the local government. Another factor leading to the concerns on the independence of the courts is the unwritten practice of the local court requesting for opinion from the superior court in complex cases.
Judgments in Vietnam are not publicly published and it is difficult to get access to past judgments: see Vietnam Legal Research - GlobaLex (nyulawglobal.org)

Arbitration
Arbitration is a possible alternative for dispute resolution in Vietnam but restricted for commercial disputes only. Arbitration was not a popular dispute resolution means in Vietnam due to weak enforceability. Since the adoption of the new Ordinance on Commercial Arbitration in 2003, arbitration award given by a Vietnamese arbitration tribunal is automatically enforceable, i.e., the parties do not have to bring the award to courts for a decision for its execution. With the recent reform, it is hoped that Vietnamese arbitration centres are referred to more often and grow more rapidly. The most well-known Vietnamese arbitration organization is the Vietnam International Arbitration Centre at the Vietnam Chamber of Commerce and Industries.
Vietnam has been a member of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Foreign investors tend to refer to foreign arbitration whenever they can due to lack of confidence in the capability and transparency of Vietnamese courts. Until recently, the execution of foreign arbitral awards was troublesome due to the narrow definition of “commercial activities” under Vietnamese law. The New York Convention only guarantees national recognition of foreign arbitral awards on issues considered of commercial nature under the national law. The recent expansion of the “commercial activities” concept was a big step in Vietnamese legal reform: see,

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Jurisdiction
Standing
Statutory Construction
Natural Justice

Actions

Download as PDF Download as Word Document

Citations

1834044 (Refugee) [2022] AATA 976

Cases Citing This Decision

Cases Cited

Statutory Material Cited

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

MIEA v Guo [1997] FCA 22

[2022] AATA 976

9 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice