1900997 (Refugee)

1900997 (Refugee) [2024] AATA 3662 (18 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)
CASE NUMBER:  1900997
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Ben Goulding
DATE:18 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2024 at 3:58pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – drove Catholic groups accused of links to Viet Tan – detained, questioned, threatened and later sent to re-education camp – religion – Catholic but no connection to group – no harm as Catholic – late claim that father imprisoned – applied after student visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2019 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 24 September 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 26 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review and the representative attended the Tribunal hearing.
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). 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–5LA, 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.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. 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 of the statutory elements are made out. A decision maker is not required to make the applicant’s case for him. It is the responsibility of the applicant to specify all 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. As per s 5AAA of the Act, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether there is a real chance that, if he returns to Vietnam, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s background
The applicant is a [Age]-year-old male from Quang Binh Province, Vietnam. The applicant travelled to Australia on an apparently genuine Vietnamese passport. A copy of the biodata page of the applicant’s passport is contained on the Departmental file. He has at all times stated that he is a citizen of Vietnam and has been assessed on that basis by the Department. The Tribunal finds he is a Vietnamese citizen and has assessed his claims against Vietnam as the country of nationality and the receiving country.
At hearing, the applicant gave evidence that he completed a [Diploma] in Vietnam prior to undertaking further study in Australia, where he completed an English course and then a further [Diploma].
Prior to arriving in Australia, the applicant worked for a bus company for about 8 years, initially assisting his father and then driving a bus when he obtained his licence. More recently, he has been undertaking [other] work in Australia.
The applicant gave evidence that he has [children] aged [Ages], however, he is not in a relationship with the children’s mother. The children are not Australian citizens. The applicant stated that the rest of his family, including his parents and siblings are currently in Vietnam and he speaks to his mother about once a month.
The applicant arrived in Australia as the holder of a Higher Education Sector visa (Subclass 573) (student visa) [in] June 2013. According to Department records, the student visa was cancelled on 9 May 2016.
Consideration of protection claims by the Department
The applicant lodged a protection visa application on 20 July 2018. That application was subsequently determined to be invalid on 22 August 2018 and the applicant lodged a new protection visa application on 24 September 2018. That second application for protection is the application currently under review by the Tribunal.
In support of his protection visa application, the applicant provided a statutory declaration dated 9 September 2016. The Tribunal notes that whilst the statutory declaration is dated 2016, it was sent to the Department on 18 September 2018, together with a covering letter and the applicant’s protection visa application. In summary, the applicant’s statutory declaration outlined the following claims:
a.That he worked for his father as a minibus driver from 2005 to 2013.
b.In 2012, he was hired by a Catholic group to drive from Quang Binh Province to Vinh City for a meeting with other Catholic groups.
c.Following the trip, he was ordered to report to a local police station and he was detained for questioning for 2 days. He was told that the Catholic group was involved in activities with the Viet Tan Party (Viet Tan) and were opposed to the Vietnamese government.
d.Following this, he was ordered to report to the police station bi-weekly. He was also threatened with being sent to a re-education camp.
e.The applicant was scared of being sent to a re-education camp, so he escaped from his hometown and temporarily stayed in Nha Trang City. Twenty days later a letter was sent to his home address ordering him to report for a 2-year re-education camp.
f.Following this, the applicant fled to Saigon (Ho Chi Minh City) and then Da Lat City before leaving Vietnam.
g.Since then, the police have come to look for him and told the applicant’s mother that when he is found he will be sent to jail.
h.He understands that various Catholic churches have been organising demonstrations against the Vietnamese government and many people have been arrested and sent to jail.
The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of his claims. The delegate refused the applicant’s protection visa application on 15 January 2019 on the basis of not being satisfied that the applicant faces a real chance of persecution in Vietnam for one or more of the reasons outlined in s 5J(1)(a) of the Act. As such, the delegate determined that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. In relation to the complementary protection criterion, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, that there is a real risk he will suffer significant harm as outlined in s 36(2)(aa) of the Act.
Before the Tribunal
The applicant appealed the Department’s decision to the Tribunal on 15 January 2019.
On 9 April 2024, the Tribunal wrote to the applicant and invited him to a hearing on 26 April 2024. In response to the hearing invitation, the applicant confirmed that he intended to take part in the hearing and he relied on all documents that have been submitted to the Department and Tribunal. At the commencement of the hearing, the Tribunal confirmed that it had on its file a copy of the applicant’s protection visa application and a copy of his statutory declaration. The applicant’s representative confirmed that there were no further documents to be provided to the Tribunal.
Following the hearing on 1 May 2024, the Tribunal wrote to the applicant and invited him to respond to information under s 424A. This information is dealt with in more detail below. On 11 May 2024, the applicant’s representative provided the following further information and evidence in support of the applicant:
a.Submission dated 11 May 2024 responding to the adverse information;
b.Letter from the applicant’s father, together with translated copy, dated 6 May 2024; and
c.Copy of the applicant’s father’s identity card.
The letter from the applicant’s father sets out the following:
I am [Mr A]
Date of birth: [Date]
Currently living in [Village]. Bo Trach District. Quang Binh Province.
I confirm that between [September] 2012 and [September] 2014, I had served two years’ imprisonment in [Prison]. [City], Quang Binh Province for collaboration to subvert the Government. On my release, the prison authority issued me with a Certificate of Release so I could return to live in the community. I then submitted my Certificate of Release to the local authority where I was living after my jail term. Later on, I requested the local authority to give that Certificate of Release back to me for the purpose of [illegible handwriting text]. However. It has been too long since the document was submitted. Also, I am now already old, and I have already returned to live in the community like other people, the local authority does not give the document back to me.
I declare that the details in my statement are true and correct.
Dated this 5th day of May 2024 at [Village]
[Mr A]
The applicant’s claims and evidence are considered in more detail below.
Evidence at hearing
At the commencement of the hearing, the Tribunal provided the applicant with a summary of the protection claims provided in his statutory declaration. The applicant confirmed that the summary was accurate.
Following this, the Tribunal asked the applicant several questions about the bus company and the Catholic group. In summary, the applicant confirmed that the bus company was a privately owned bus service and his father worked for the company. Initially, the applicant would assist his father but when he was old enough to get his licence in about 2010, he started driving a bus for the company.
The applicant did not know the name of the Catholic group that he drove from Quang Binh Province to Vinh City but he recalled having driven them on many occasions. The applicant did not personally know any members of the group, and he only drove them because the owner of the bus company asked him to. The applicant confirmed that he never discussed any political matters with members of the group. The applicant recalled driving them to their destination in 2012 and then returning a couple of days later to pick them up. After the return trip, the police contacted the applicant and told him he had been involved in a violation as the Catholic group were under investigation as they are members of Viet Tan.
The applicant was not able to provide any information as to why the police thought he was involved with the Catholic group, other than the police asked him to provide information about the members of the group. The applicant elaborated that he was taken to a room and questioned about where he drove the group, where he dropped them off, the number of people in the group, their names and addresses, and who hired him to drive. The applicant said he was unable to answer the questions, so he was detained. When asked if he was charged with any offence, the applicant claimed that he was charged with attending a riot.
In total, the applicant claimed he was detained for 2 days and one night. Upon his release, the applicant claimed that nothing was said to him, nor was he required to complete any paperwork. However, he was sent a letter saying he had to report to the police station once every 2 weeks.
When the applicant reported to the police station, he was required to provide details of what he had been doing over that 2-week period, including what he had done and who he had met.
Following this, the Tribunal questioned the applicant as to whether there was any other reason the police believed he was involved with the Catholic group. The applicant responded that he did not know, and he had told the police he was just a driver but they did not believe him. The applicant claimed that the police also spoke to his employer but the owner of the company claimed not to know who the group was, and that the applicant had driven the group without the company knowing about it. The Tribunal then asked why his employer would say this. The applicant claimed that the owner of the company did not want trouble because he could see that the applicant and his father were often subpoenaed by the police. The applicant claimed that his only prior contact with the police arose for an unrelated matter.
The applicant stated his father was also detained by the police and charged due to his connection to the Catholic group as he had previously driven the group. The applicant claimed that his father was subsequently imprisoned for 2 years from 2012 and released in 2014. When asked why this was not mentioned in his statutory declaration, the applicant said he forgot about it. The Tribunal questioned the applicant about this further and he responded that he may have told his representative and he forgot to include the information, or he may have forgotten to tell his representative, but he cannot remember. The applicant confirmed that since his release, his father has not had any issues with the police. However, the police do come to his house and ask about the applicant’s whereabouts.
The Tribunal questioned the applicant further about the Catholic group. He restated that aside from driving the group, he had no connection to them. He also confirmed that he would occasionally attend his own local church. The applicant also claimed that as a Catholic, he could not work for the government or become a member of the Communist Party of Vietnam. He confirmed he had no other issues as a Catholic in Vietnam.
When asked about the re-education camps, the applicant stated that the purpose was to change the thinking of detainees and for them to do some work. However, his father was sent to a regular prison rather than a re-education camp. When asked about the sentencing of his father, the applicant claimed that his father’s case was dealt with by a local court and, in effect, his father did not attend the court proceeding. The applicant claimed his father was charged with involvement in a riot against the government. The applicant said he was not sure whether he would personally go to prison or a re-education camp; however, the notice he received said he would go to prison.
Following his father’s detention, the applicant fled in around August or September 2012. Initially the applicant went to Nha Trang City and worked as [an occupation] for about a month. The applicant had no issues with the police while he was there; however, the applicant claimed his mother called him and told him the police were looking for him. The applicant claimed his mother had received a letter requesting that he attend the police station as he was to be charged in relation to his involvement with the Catholic group. The applicant stated that the letter said he would be sent to a re-education camp.
The Tribunal questioned the applicant as to why the police would send him a letter saying he was to be put in a re-education camp given this may prompt the applicant to run away. The applicant responded that he does not know, and he does not have a copy of the letter.

The applicant claimed that he travelled to Ho Chi Minh City in about October 2012 as he was concerned the police might find him in Nha Trang City. He resided in Ho Chi Minh City for about 6 months and worked as [an occupation]. When asked why he moved to Ho Chi Minh City, the applicant responded that it was easier to find jobs there. When asked whether he was still at risk of being caught in Ho Chi Minh City, the applicant claimed that he was only wanted by the local police, and he was not wanted nationwide. The applicant confirmed he did not have any issues with the police whilst he was in Ho Chi Minh City; however, the applicant claimed that the police contacted his mother and often went to his house to ask about his whereabouts. It was this contact with his family that prompted the applicant to make plans to leave Vietnam.
The applicant claimed that when the police found out that he had left Vietnam, they went through his house and threatened to put him in prison. The applicant did not know how the police found out he had left the country. He also claimed that he had no issues departing Vietnam because, according to the applicant, everything was arranged by a travel agent.
Additionally, the applicant claimed that the police still contact his mother and that they most recently attended his family home at the end of last year and asked his mother where he was. When the police realised he was not there, they left.
Following this, the applicant explained that he was scared due to his perceived links to Viet Tan, which he described as a ‘terrorist’ and ‘riot’ group. When asked what he meant by ‘terrorist group’, the applicant claimed that people in his hometown get arrested due to their links to the group.
The Tribunal then summarised relevant country information from the most recent report from DFAT regarding the situation for those who oppose the government, namely:
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 11 January 2022 (2022 DFAT Report), at [3.57].
The Tribunal put to the applicant that it accepts that people who are actively involved with Viet Tan may face problems,[3] but questioned the applicant as to why after 12 years the authorities would still be concerned about him. The applicant responded that the police did not believe him, and the owner of the bus company did not acknowledge that he was just doing his job, so he was blamed. For this reason, he believes the police would still want him. The applicant also claimed that because he has run away, his charges will now be more serious.
[3] ‘Vietnam Country Security Report’, Overseas Security Advisory Council (OSAC), 21 February 2024, >
The Tribunal then discussed with the applicant that, as noted above, people with links to Viet Tan may face issues with the Vietnamese authorities and the Tribunal is aware of people being sentenced to terms of imprisonment where they have been involved with Viet Tan as it is considered a terrorist group by the Vietnamese authorities.[4] The applicant was then asked whether there was any reason to think the church group members were linked to Viet Tan. The applicant replied that as the majority of Vietnam is Buddhist, people who are Catholic tend to follow the old government, but he did not know if the church group was associated with Viet Tan. The applicant also confirmed that he has no connection to Viet Tan and has never attended a Viet Tan event in Australia.
[4] Ibid.
The Tribunal also questioned the applicant as to whether he had ever received a notice to attend court. The applicant confirmed he had not.
During the closing stages of the hearing, the applicant repeated his claim that the police in Vietnam are still interested in him and they will want to put him in prison because he committed an offence in Vietnam.
In closing, the applicant’s representative submitted that the applicant’s father may not be able to provide documentary evidence that he was detained in a re-education camp. In this regard, the representative submitted that the standard process upon release would be for the detainee to be given a note of release from prison, however, this would then be provided to the police in the detainee’s home area as evidence that they have completed their term in the re-education camp.
Additionally, the applicant’s representative submitted that unlike a prison sentence, the police have power to determine that a person serve a term within a re-education camp without the need for a court conviction. However, as the applicant did not obey the order to attend the re-education camp, he will now receive a prison sentence.
Consideration of the applicant’s claims
In assessing the applicant’s claims and credibility, the Tribunal is mindful of the difficulties that asylum seekers often face, and the benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant.[5] Moreover, the Tribunal has several serious concerns regarding the applicant’s evidence as it relates to his delay in applying for protection, new claims raised at hearing, and his claim to be of adverse interest to the authorities in Vietnam.
[5] See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
These concerns are addressed below.
Delay in applying for protection
Following the hearing the Tribunal wrote to the applicant pursuant to s 424A of the Act. In summary, the Tribunal put to the applicant that his delay of some 5 years in applying for protection appears to be significant and may cause it to have concerns in relation to the immediacy and gravity of the applicant’s claimed fears of returning to Vietnam, and the overall credibility of his claims, given he has claimed that:
a.Prior to leaving Vietnam, the police ordered him to report for a 2-year re-education camp;
b.This caused him fear and he subsequently left Vietnam; and
c.Since leaving Vietnam, the police have come to his home to look for him often, and they have told his mother that if he is found he will be sent to jail.
The applicant’s representative responded on 11 May 2024. In summary, the representative made the following submissions based on the applicant’s instructions:
a.The applicant was granted a student visa to study in Australia. He planned to study and work hard to apply for permanent residency in Australia through a skilled pathway as he feared returning to his home country.
b.Due to his financial situation at the time, including a lack of family support, the applicant ceased studying and his student visa was cancelled on 9 May 2016.
c.The applicant then sought professional advice to apply for a protection visa. However, due to his financial situation, he was not able to pay for professional assistance.
The Tribunal accepts that the applicant arrived in Australia as the holder of a student visa [in] June 2013. Given the uncertainty of the protection visa process, the Tribunal also accepts that in some circumstances, an applicant might delay lodging an application for protection where they do fear harm on return in order to pursue other visa pathways. However, the Tribunal does not accept that this was necessarily the applicant’s intent, and, in any event, the Tribunal does not accept that it accounts for the entirety of the applicant’s delay in applying for protection.
In this regard, the applicant’s student visa was cancelled on 9 May 2016, however, the applicant did not lodge an application for a protection visa until 20 July 2018. That application was subsequently determined to be invalid on 22 August 2018 and the applicant then lodged a second protection visa application with the Department on 24 September 2018. Whilst the Tribunal recognises that the applicant likely had the option to appeal the cancellation of his student visa, the applicant has not claimed that he pursued such an appeal, nor is there any information before the Tribunal to suggest that he lodged an appeal of the cancellation.
The Tribunal has also had regard to the applicant’s claim that his financial situation upon the cancellation of his student visa caused a delay in him being able to obtain professional migration assistance to lodge a protection visa application. Whilst the Tribunal accepts the applicant may have faced financial difficulties and this caused him barriers in accessing immigration advice and assistance, the Tribunal does not accept that this accounts for the entirety of his delay in lodging his protection visa application given there was a period of more than 2 years from the date his student visa was cancelled to the date that he lodged his first protection visa application.
Given the circumstances outlined above, together with the Tribunal’s other concerns addressed herein, the Tribunal places some adverse weight on the applicant’s delay in lodging a protection visa application following the cancellation of his student visa.
New evidence raised at hearing
As outlined above, at hearing the applicant claimed that his father was charged by the police and imprisoned for 2 years from 2012 until 2014. The applicant claimed that his father’s imprisonment was due to his connection to the Catholic group and that both he and his father had driven the Catholic group during the course of their employment as bus drivers. The Tribunal finds that this is significant new evidence that was not raised in the applicant’s protection visa application or within his statement of claims.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
As noted above, at hearing, the Tribunal questioned the applicant as to why he had not included information relating to his father in his protection visa application or in his statement of claims. In response, the applicant said he forgot. When questioned about this further, the applicant responded that he might have told his representative and he forgot to include the information or, alternatively, the applicant forgot to tell his representative, but he cannot remember.
The Tribunal finds that the information relating to his father is central to the applicant’s claim as, in effect, the applicant contends that he would be charged with the same offences as his father due to their shared connection to the Catholic group, and that he would receive the same or similar sentence to his father.
The Tribunal does not accept that the applicant would merely forget to provide this information or evidence in his protection visa application. Moreover, the Tribunal does not accept the applicant’s inference that the failure to include this information in his application was due to an oversight of his representative.
In short, given its direct relevance to the applicant’s own claims, the Tribunal does not accept that the applicant would have forgotten to include the information regarding his father in his protection application, or that his representative failed to include this information if he had been instructed to do so. As such, the Tribunal does not consider that the applicant has provided a reasonable explanation as to why information regarding his father was not included in his protection visa application.
Given the above, the Tribunal draws an inference unfavourable to the credibility of the claim and related evidence, including his father’s statement, pursuant to s 423A of the Act.
Other claims made by the applicant
The Tribunal found the applicant’s evidence regarding his employment as a bus driver, his contact with the Catholic group and initial questioning by the police in 2012 to be relatively clear and detailed, particularly given the limited capacity in which he knew the group and the time that has elapsed since that date. However, much of the applicant’s evidence thereafter was vague, lacking in detail and unconvincing. Specific concerns are addressed below.
First, whilst the Tribunal accepts that the applicant may have been questioned by the police in relation to the Catholic group, the Tribunal has significant concerns regarding the applicant’s claim that he was suspected by the police of either being involved with the group, or having any involvement in Viet Tan. The applicant’s own evidence was that when questioned by the police, he was asked where he had driven the Catholic group, where he dropped them off, the number of people in the group, their names and addresses, and who hired him to drive. In giving this evidence, the applicant did not claim that he was questioned about his own involvement in the group. The applicant also confirmed that he did not have any contact with the group outside of his employment and he did not know any information about the group, including names of members or their political activities.
Given the applicant’s evidence, and the claimed line of questioning followed by the police, the Tribunal does not accept that the applicant was suspected by the police of being a member of the Catholic group, a member of Viet Tan, or having any role other than being a hired driver.
Second, the Tribunal has concerns regarding the applicant’s claim that the police sent him a letter stating that he would be charged and placed in a re-education camp. The Tribunal acknowledges that the applicant’s representative submitted that the police had the discretion to do this without a court order. The Tribunal also acknowledges that there is widespread corruption and bribery within the Vietnamese police force,[6] and the courts in Vietnam are subject to political influence and corruption that significantly undermine the judicial system.[7] However, the Tribunal has not been able to find any country information that would support the claim that the police can simply order that an individual must attend a re-education camp for multiple years without the alleged perpetrator of an offence first attending court. In this regard, the applicant confirmed that he had never received a court order or been told that he needed to attend court.
[6] ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 9 September 2019, 58; ‘Vietnam Country Security Report’, Overseas Security Advisory Council (OSAC), 21 February 2024, 5.
[7] US Department of State, 2023 Country Reports on Human Rights Practices - Vietnam, 22 April 2024, >
Given the lack of available independent information in support of this claim, the Tribunal gives this concern some adverse weight.
Third, the Tribunal also has concerns regarding the applicant’s claim that his employer told the police that the applicant had driven the Catholic group in his own time and outside of the scope of his employment with the bus company. In this regard, the applicant gave evidence that he had driven the group on many occasions in his role as a bus driver, and that his father had also driven the group. When asked why the employer would deny knowledge of the applicant having driven the group for work purposes, the applicant claimed that his employer was attempting to avoid trouble with the police.
However, the Tribunal finds that if the minibus company had indeed provided drivers to the Catholic group on multiple occasions, then the applicant’s employer would likely have had records of those previous trips. Denying any knowledge of the company’s engagement with the Catholic group would likely have resulted in adverse attention being drawn to the employer’s own practices or involvement with the Catholic group had the police investigated further.
Whilst the Tribunal acknowledges that the applicant’s claim regarding his employer is possible, when having regard to the Tribunal’s other concerns, it gives this concern some adverse weight.
Fourth, the Tribunal also has concerns regarding the applicant’s claim that the police still contact his mother and ask as to the applicant’s whereabouts. In this regard, even where the Tribunal accepts that the applicant was questioned by the police for having driven the Catholic group in 2012, the Tribunal does not accept that the applicant would have acquired an adverse profile such that the authorities would still be making enquiries as to his whereabouts some 12 years later.
Findings
The above considerations, when taken together, lead the Tribunal to have serious concerns regarding the applicant’s claims and, in particular, the Tribunal finds that the applicant’s claim that he is of adverse interest to the authorities in Vietnam lacks credibility. In particular, the Tribunal does not accept the following claims:
a.That the police suspect the applicant of having been involved with the Catholic group beyond his role as a driver.
b.That the police suspect the applicant of having links to Viet Tan.
c.That the applicant’s employer at the bus company denied any knowledge of the applicant having driven the Catholic group in the course of his employment.
d.That the police sent the applicant a letter saying he would be charged and placed in a re-education camp for a period of 2 years.
e.That the police continue to question the applicant’s family as to his whereabouts.
f.That the applicant will be arrested and imprisoned upon return to Vietnam or, alternatively, placed in a re-education camp.
The Tribunal acknowledges that the letter provided by the applicant’s father does corroborate the applicant’s claim that his father was imprisoned for two years between 2012 and 2014, and that he no longer has a copy of the Certificate of Release. However, given the credibility findings above, particularly the delay in raising the claim, the Tribunal does not accept the evidence from the applicant’s father. Nor does the Tribunal accept that the applicant’s father was arrested and imprisoned for a period of 2 years, or that he was charged with any offence related to the Catholic group.
However, on the applicant’s evidence, the Tribunal is prepared to accept that:
a.The applicant is Catholic.
b.Between about 2005 and 2013 the applicant was employed by a private minibus company. From about 2010 the applicant worked as a driver for that company. The applicant’s father worked as a driver for the same company.
c.During the course of their employment, the applicant and his father were hired to drive a Catholic group. The applicant drove the group on many occasions.
d.In about 2012, the applicant was hired by the Catholic group to drive from Quang Binh Province to Vinh City for a meeting with other Catholic groups. Following this trip, the applicant was questioned by the police about the activities of the Catholic group.
e.The applicant was not involved with the Catholic group in any other way, and he does not know any further information about their activities or the reasons why the police thought they were involved with Viet Tan.
f.The applicant has never had any involvement with Viet Tan, nor has he attended any Viet Tan events in Australia.

Given the above, the Tribunal does not accept that the applicant is of an adverse interest to the Vietnamese authorities.
Assessment of the applicant’s claims
Claims relating to the applicant’s connection to the Catholic group
For the reasons given above, the Tribunal has found that the applicant’s claims to be of adverse interest to the authorities in Vietnam on account of having been hired as a driver for the Catholic group to not be credible.
Whilst the Tribunal accepts that the applicant was questioned by the police in 2012, it does not accept that the applicant is still of interest to the authorities in Vietnam. As such, the Tribunal does not accept that the applicant will be arrested, detained or imprisoned upon return to Vietnam or, alternatively, placed in a re-education camp.
As such, the Tribunal does not accept that the applicant would face a real chance of serious harm from any person in Vietnam for reasons of him having driven the Catholic group and having been questioned by the police in 2012, now or in the reasonably foreseeable future.
The Tribunal has also 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 that he will suffer significant harm such that he meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee definition.[8] For the reasons given above, the Tribunal has not accepted that the applicant’s claims reach the level of a ‘real chance’. It follows that the Tribunal is not satisfied 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 on the same basis.
Political claim on account of the applicant being Catholic
[8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The applicant claimed that in Vietnam, the majority of the population are Buddhist, and there is a perception or actuality that people who are Catholic follow the ‘old government’. As such, the applicant has inferred that Catholics may be taken to hold oppositional political opinions against the current Vietnamese government.
The Tribunal has considered the applicant’s claims to be of an adverse political profile on account of being Catholic. The applicant does not claim to be a member of any political group or other organisation, and he has not attended any political events or rallies in Australia. Nor has he claimed to have been politically active in Vietnam or to have expressed any oppositional political view. Rather, when questioned as to whether he had experienced difficulties on account of being Catholic, he said he could not work for the government or join the Communist Party, but that he had experienced no other issues.
As noted above, the Tribunal discussed with the applicant the situation for political activists in Vietnam and that DFAT had reported that people who ‘publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting’. In response, the applicant relied on his claim that he was wanted by the police due to his connection to the Catholic group and because he had run away.
The Tribunal accepts that Catholics are a minority, making up approximately 6 per cent[9] of Vietnam’s population of about 100 million people as of 2022.[10] However, the Tribunal does not accept that in the applicant’s particular circumstances he would be of an adverse profile to the Vietnamese authorities solely due to his Catholic religion. In making this finding, the Tribunal has expressly rejected the applicant’s claim that the authorities believe him to be connected to either the Catholic group that he drove or to Viet Tan.
[9] 2022 DFAT Report, at [3.13].
[10] 2022 DFAT Report, at [2.4].
Given the above, the Tribunal does not accept there to be a real chance that the applicant would suffer harm of any kind in Vietnam on account of him being Catholic or holding an oppositional political view against the Vietnamese government, now or in the reasonably foreseeable future as a consequence of his removal to that country.
As the threshold for ‘real risk’ in s 36(2)(aa) of the Act is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a),[11] the Tribunal does not accept there to be a real risk the applicant would be harmed upon return to Vietnam on the same basis, as a necessary and foreseeable consequence of being removed from Australia and returned to Vietnam.
Discrimination claim on account of the applicant being Catholic
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The applicant also claimed that he has faced a level of discrimination as a Catholic, as he cannot work for the government or become a member of the Communist Party of Vietnam. When asked whether he had experienced any other issues on account of being Catholic, the applicant confirmed he had not.
In relation to discrimination against Catholics, DFAT reports that ‘Catholics generally do not experience societal discrimination’, however, such discrimination ‘cannot be ruled out’ but DFAT understands that ‘there is not a pattern of such discrimination’.[12]
[12] 2022 DFAT Report, at [3.30].
In view of the country information cited above and the applicant’s evidence, the Tribunal accepts that Catholics in Vietnam may be subjected to a level of discrimination. However, it is noted that the applicant has provided only limited evidence of being subjected to discrimination on account of his religions, and he has not specifically claimed to have sought work in the government sector. Moreover, the fact that a person experiences some level of discrimination is not necessarily enough to establish persecution. Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(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.
Given the above, the Tribunal does not accept there to be a real chance that any discrimination for reasons of his religion will rise to the level of serious harm in the particular circumstances of the applicant. The list of instances of serious harm in s 5J(5) is not exhaustive; however, the Tribunal does not accept there to be a real chance that the applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) for reasons of his religion if he returns to Vietnam now or in the foreseeable future. It follows that the Tribunal does not accept that the applicant meets the criteria set out in s 5J(4)(b).
In considering whether the harm feared by the applicant on account of religious discrimination would amount to significant harm in the complementary protection criterion under s 36(2)(aa), the Tribunal has had regard to the definition of ‘significant harm’ as defined in s 36(2A), as follows:
(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.
As noted above, the Tribunal accepts that Catholics in Vietnam may be subjected to a level of discrimination. However, the applicant does not claim, nor does the country information suggest, that the harm described by the applicant in Vietnam could amount to significant harm for the purposes of s 36(2A) of the Act. In this regard, the applicant has not suggested that any person or group will seek to arbitrarily deprive him of his life or subject him to torture, nor that the death penalty would be carried out on him as a consequence of that discrimination. Additionally, the Tribunal does not accept that the harm described by the applicant, including the denial of access to government jobs, would rise to the level of cruel or inhuman treatment or punishment or degrading treatment or punishment as those terms are defined in the Act.
For these reasons, the Tribunal does not accept there to be substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm as that term is defined in s 36(2A) as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no evidence 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Goulding

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
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.
…

[2024] AATA 3662

18 July 2024

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