1901566 (Refugee)

1901566 (Refugee) [2019] AATA 6507 (15 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901566
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Christopher Smolicz
DATE:15 October 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 15 October 2019 at 11:42am

CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – religion – Hoa Hao Buddhism – imputed political opinion – anti-government – applicant’s claimed regular harassment – applied for protection visas five years after arriving in Australia – inconsistent and vague evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB (2013) 210 FCR 505
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 Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas on 23 July 2014 and the delegate refused to grant the visas on 26 October 2015.
On 22 December 2016 a differently constituted Tribunal (the first Tribunal) affirmed the Department’s decision not to grant the applicants protection visas.[1]
[1] AAT case file ref. 1515602
The applicants sought judicial review of the first Tribunal’s decision before the Federal Circuit Court of Australia (FCCA). [In] January 2019 the FCCA found that the first Tribunal had committed a jurisdictional error because it had overlooked a material claim expressed by the applicants. The FCCA quashed the first Tribunal’s decision and the matter has been remitted to the Tribunal for reconsideration.
The applicants appeared before the Tribunal on 18 June 2019 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review by their registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Issue
The issue in this case is whether the applicants meet the refugee criterion or come within Australia’s complementary protection obligations because of their religion and imputed political opinion.
Background
The first named applicant (the applicant) and the second named applicant are husband and wife. The applicants arrived in Australia in November 2009 as holders of Sponsored Family Visitor (Subclass 679) visas that were valid for three months. They were sponsored by the applicant’s sister ([Named]) who resides in Australia. On 22 February 2010 the applicants became unlawful non-citizens. They applied for protection visas on 23 July 2014 and made the same claims for protection.
Summary of substantive claims
The applicants claim they are followers of an unregistered sect of Hoa Hao Buddhism. They faced persecution and harassment from the Vietnamese government because of their religion. They were regularly harassed and made to report to the authorities because of their religion and perceived anti-government political opinion.
Since arriving in Australia they learnt more about human rights abuse perpetrated by the Vietnamese government and would no longer be able to live in such conditions.
The applicants claim that if they are forced to return to Vietnam they will be compelled to stand up against the government and fight for the rights of their religious group.
The applicants fear being subjected to intimidation, harassment, restriction of movement, property destruction, forced to renounce their faith and imprisonment by the authorities. They claim that harassment of Hoa Hao Buddhists has gotten worse since the introduction of “Decree 92’ in January 2013, which has further increased government control over religious groups.
The applicants claim that when they arrived in Australia to visit their family members they intended to return to Vietnam, however, since arriving in Australia they have become increasingly aware of the persecution facing members of their religion in Vietnam.
The applicants provided the Tribunal with a copy of the delegate’s decision record for the purpose of this review application. The decision record sets out relevant country information and provides a summary of the evidence provided by the applicants at their protection interview. The delegate accepted that the applicants were followers of Hoa Hao Buddhism and practiced their religion in Vietnam by attending the [Temple 1] in [Province 1] twice a month. The delegate found that notwithstanding the claim that the applicants are followers of the independent Hoa Hao sect in their application form, they are in fact registered Hoa Hao practitioners and their religious expression and participation are sanctioned by the Vietnamese government.
The delegate found that as “registered” Hoa Hao practitioners, they were not subjected to the persecution that unregistered practitioners in areas such as the Mekong Delta are reported to be. The delegate noted that their family in Vietnam practiced Hoa Hao Buddhism and had not been subjected to serious harm. The delegate was also concerned about the five year delay in the applicants applying for the protection visas after they arrived in Australia. Having found that the applicants practiced their religion with a registered Buddhist organisation in Vietnam, the delegate did not find they had a well-founded fear of persecution.
Submission
The Tribunal was provided submissions dated 11 June 2019 addressing a number of concerns raised by the delegate and the first Tribunal.
It was submitted that the applicants follow an “unrecognised” form of Hoa Hao Buddhism which they call “original” Hoa Hao that was followed by the applicant’s parents.
It was submitted that the applicants do not accept the first Tribunal’s finding that they followed a “recognised” form of Hoa Hao Buddhism. The applicants claim they have never attended a registered Hoa Hao church or temple and they do not remember making any such concession as stated by the delegate. It was submitted that the applicants have limited education and they admit to often misunderstanding questions and had difficulty providing accurate, detailed answers.
The applicants claim to have followed their religion peacefully by praying at home as well as holding and attending prayers with a group of families, which would be held at each family’s house. When in Vietnam they were subjected to surveillance and threats by police that they would be jailed if they continued to follow this religion.
It was further submitted that if the applicants return to Vietnam they will meet up with friends from the same religion to discuss ways to fight for their religious right to be able to practice their religion in peace and be able to hold and attend special events for religious holidays.
Imputed anti-government political opinion
It was submitted that the applicants were not political activists in that the persecution they experienced in Vietnam did not extend to “dying in custody or being abducted”; they do, however, fear that attending a ceremony or even observing a religious holiday or holding group prayers at their house will be seen as “undermining” or “acting to overthrow” the government and will result in persecution.
The Tribunal was referred to country information where it was reported that Hoa Hao Buddhists became “a focus of reprisal because of their perceived anti-communism and links with the former US-backed regime”.[2] It was submitted that although the applicants do not preach anti-communism nor do they claim their religion does, there is a perception that those who participate in this religion are targeted as being anti-communist.
[2] Canada: Immigration and Refugee Board of Canada, Vietnam: The Hoa Hao religion: type, structure, leaders, number of members, and the treatment of members by the government (January 2000 - May 2001), 23 May 2001, VNM36745.E, available at: >
It was submitted that the findings made by the delegate and the first Tribunal that the applicant was questioned around every three months was inaccurate. It was submitted that the second named applicant was called for questioning once a month and the applicant was called for questioning more often, that is, either once a week, twice a month or once a month.
The Tribunal was provided with statements from two witnesses in Vietnam who claim to be Hoa Hao Buddhists from the same prayer group as the applicants while they were living in [Named] Ward, [Province 1].
Tribunal hearing
Reasons for travelling to Australia and delay in apply for protection visas
The Tribunal questioned the applicants as to why they travelled to Australia and their delay in applying for protection visas.
The applicants said that they travelled to Australia because their religious beliefs were being suppressed in Vietnam. The applicant said he came to Australia so that he could freely worship at the Buddhist temple.
The Tribunal noted that the applicants arrived in Australia in 2009 on temporary three month visas but did not apply for protection until July 2014. The Tribunal asked the applicants on a number of occasions what their plan was when their visa expired and they no longer had permission to lawfully remain in Australia. The applicants did not answer the Tribunal’s question.
The Tribunal asked the applicant if he did not understand the question or if there was an issue with the interpreter. The applicant said he did not understand the Tribunal’s question. The Tribunal repeated the question on a number of occasions to ensure that there was no misunderstanding. After further questioning the applicant said that he came to Australia for religious freedom so he could attend the temple.
The Tribunal again asked the applicants why they waited five years before they applied for protection visas if they were escaping persecution. The applicants said that they did not know about the types of visas and feared they may be deported. The applicant said that in 2014 he spoke to a friend who told him about protection visas. The second named applicant also said they did not know about protection visas until they were told by a friend. She claims they remained in hiding in Australia because they feared they would be deported.
The Tribunal referred the applicants to their protection visa application forms and noted that they both declared that they arrived in Australia as holders of visitor visas and intended to visit family members and had initially intended to return to Vietnam.[3] The Tribunal observed that this answer appeared inconsistent with their evidence that they came to Australia to escape religious persecution. The applicant said he could not recall his answer because he made the application a long time ago. He then denied that he made this statement.
[3] Question 37, form 866B
The Tribunal asked the applicant who sponsored them to come to Australia. The applicant said he and his wife arrived in Australia in 2009 and they were sponsored by his sister, who came to Australia on a refugee visa in [a certain year]. His sister lives in [another city] but he remains in contact with her and she has provided them with support.
The Tribunal observed that it did not seem consistent that he would claim to have no knowledge of refugee visas in circumstances where his sister came to Australia as a refugee. The applicant said in response that he did not wish to make a comment on the Tribunal’s observation. The second named applicant said that the applicant’s sister is [a certain age] and was [details deleted].
Religious beliefs
The Tribunal asked the applicants to explain what type of Buddhism they followed in Vietnam.
The applicant said he followed Hoa Hao Buddhism and his religion was supressed by the Vietnamese authorities daily. He claims there are [a number of] families in his area that worship this religion and they are watched by the police who issue summonses requiring them to attend the police station.
The Tribunal had to repeat its question and asked the applicant to provide further information about his religion. The applicant said he has practiced his religion since he was [a certain age]. The Tribunal asked the applicant on a number of occasions to provide an explanation about his religion and how it differed from the Buddhist religion followed by the majority of the Vietnamese population.
The Tribunal referred the applicants to DFAT’s country information report, which states that Vietnam was traditionally a Buddhist country where more than half of the population consider themselves followers of “Mahayana Buddhism”.[4] The Tribunal asked the applicants to explain what the difference is between their religion and that practiced by the majority of the population of Vietnam. [
[4] DFAT Country Information Report Vietnam, 21 June 2017,[ 3.8]
The applicant said that in Vietnam there are two types of Buddhism. One is Hoa Hao Buddhism and the other is “Trading Buddhism”. The Tribunal asked the applicant to explain what he meant by the name “Trading Buddhism”. The applicant said that “Trading Buddhism” is the one that belongs to the authorities. TRa
The Tribunal observed that the applicant’s evidence was vague. The Tribunal was surprised that he could not provide further evidence about how his religion differed from the official Buddhist religion practiced by the majority of the population in Vietnam, in circumstances where he claims to have been a follower of Hoa Hao Buddhism for most of his life. In response the applicant said that Hoa Hao Buddhists practice their religion from home. He said the most important thing is that the authorities forbid them to practice their religion.
The Tribunal asked the second named applicant if she could explain the difference between Hoa Hao Buddhism and the Buddhism practiced by the majority of the population of Vietnam. The second named applicant also said that there are two types of Buddhism; one is the “Genuine Buddhism” and the other is called “Trading Buddhism”, which belongs to the government, and its practitioners are able to build their own temple. Genuine Buddhism is passed down from the previous generation and was founded by a specific person, and its practitioners are not allowed to build their own temple.
The second named applicant said that there are about 1,400 people who practice their religion in Vietnam. The Tribunal noted that the reports suggest that the number of followers is much larger. The second named applicant said the followers may be scattered and she has moved around so she may not know the numbers. They gather in small groups so she is not certain. After further questioning, the second named applicant said that there are about 14,000 followers of their religion in Vietnam.
The Tribunal asked the applicant again if he could explain what was important to him about his religious practice. The applicant said that when they worship they have to move from house to house. The Tribunal again invited the applicant to explain what was important about his religious practice. The applicant said that they fear the police. The police are concerned about followers of their religion because they gather together, and therefore they suppress such followers. The Tribunal asked the applicant if his religion’s followers want to oppose the government. The applicant said they do not want to oppose the government.
The Tribunal asked the applicant on a number of occasions if there are different types of followers of Hoa Hao Buddhism in Vietnam. The Tribunal had to prompt the applicant and repeated the question. The Tribunal explained to the applicant that according to country information, Hoa Hao Buddhists in Vietnam are divided into two groups. The Tribunal told the applicant it was concerned he could not explain the difference. The applicant said they worship Phu So. He said that there is the “genuine Hoa Hao” and the “Trading Hoa Hao”.
He referred the Tribunal to Hoa Hao Buddhist celebrations held on 25 November of the lunar calendar (Huynh Phu So’s birthday), 18 May of the lunar calendar (Hoa Hao’s founding day anniversary) and 25 February of the lunar calendar (anniversary of Huynh Phu So’s death). He said the anniversary is on a different date from the “Trading Hoa Hao”. The applicants said that Hoa Hao supporters are harassed and monitored in Vietnam and they were prevented from gathering in their homes for worship.
The Tribunal asked the applicants how they practice their religion in Australia. The applicants said that they attend a temple ([Temple 2]). The applicants said the temple is attended by Vietnamese Buddhists including Hoa Hao Buddhists. The second named applicant said she also chants every night and gets up at four in the morning and chants, and they attend group meetings.

The Tribunal noted that a key part of Hoa Hao Buddhism was home worship. The Tribunal asked the applicant why he attended a temple in Australia if he was a Hoa Hao Buddhist. The applicant said that in Vietnam Buddhists and Hoa Hao are different but in Australia they are the same and the temple is attended by all Buddhists.
The Tribunal told the applicants that it was surprised that no one from the Hoa Hao Buddhist community in Australia came to give evidence in support of their application. After further questioning the applicant said that they did not know many Hoa Hao Buddhists but there was one person who is building a place of worship in his shed.
The applicant said he does not go to a temple to worship in Vietnam. They worship on 25 November at the temple for a special celebration. On 25 February they celebrate at home. The Tribunal asked the applicant if he knew when it was the 60th anniversary of the founding of Hoa Hao Buddhism. The applicant was unable to answer the question.
The Tribunal had regard to the applicants’ evidence and found their explanation of “unregistered faction of Hoa Hao Buddhism” vague and lacking detail. The Tribunal was able to observe that the second named applicant was prompting the applicant at the hearing and assisting him answer questions about his religion.
The Tribunal asked the applicants if they have spoken out against the Vietnamese government and their persecution of Hoa Hao Buddhists since they arrived in Australia. The applicant said they had not. The applicant said he does not have the knowledge to bring action against the Vietnamese government and speak out for his religion. He said that he just wants to be left alone and be able to practice his religion in peace.
The Tribunal asked the second named applicant how she practiced her religion in Vietnam. The second named applicant said she did chanting every night. The Tribunal invited the second named applicant to provide further information. The second named applicant repeated her evidence and said she chants at night and also wakes up at 4am to do more chanting at home. She said they also gather in groups of [people]. In Australia they do not know others from their religion and so they only practice at home, and on Saturday and Sunday they go to the general Buddhist temple to worship ([Temple 2]). She claims she did not attend such a temple when she was in Vietnam. She said that in Australia, Buddhism is all the same and there is no distinction.
The Tribunal referred the applicant to his claims and asked him to explain what he meant by the term “unregistered faction of Hoa Hao Buddhism”. The applicant said he did not understand the question. The Tribunal repeated the question. The applicant said it is the “genuine” religion that comes from their ancestors; the other branch is also called Hoa Hao but has merged with Phu So’s branch. The Tribunal again asked the applicant to explain the differences. The applicant said that they celebrate on 25 February and the authorities do not allow them to worship on that day. He was unable to provide any further information.
The Tribunal referred the applicants to the delegate’s decision and noted that the applicants took part in an interview and conceded that they attended [Temple 1] in Vietnam and were registered official Hoa Hao practitioners. The applicants said they did not go to the temple in Vietnam and only practiced at home.
The Tribunal again asked the applicants if they knew the difference between registered and unregistered Hoa Hao Buddhists in Vietnam. The applicant said he practices at home and his religion is unregistered, and in the genuine one.
The Tribunal asked why he does not want to be part of the registered branch of Hoa Hao Buddhism. The applicant said the authorities do not allow them to worship on 25 February, the day that their founder went missing, because they suspect followers want to oppose the authorities.
The second named applicant also maintained she was a follower of the unregistered branch of Hoa Hao Buddhism.
The Tribunal asked the applicant what problems they had experienced practicing their religion in Vietnam. The applicant said five to six people practice together and have to move around. He said every week they would gather to pray and two days later they would receive a summons from the police telling them that they must attend the police station.
When asked how often he would receive a summons, the applicant said he received a summons once per week, once per month or one every second month. He said it changes because it depends which family is served with the summons.
He said that when they are served with the summons they are requested to sit in the police station all day, and the police threaten them and tell them to give up their religion or they will send them to prison. He claims it has happened 50 to 60 times, and on each occasion the police let them go.
The applicant said he has not been put in prison because he has come to Australia. The applicant said that maybe if he did not leave Vietnam, then he would have been sent to prison.
The second named applicant said she also had to go to the police station and sit there and she was also threatened. She said it was difficult to do her work because she was kept at the police station. She said it occurred once a week or once a month because the summons was rotated between families. When they stop praying, the police would come to their home the next day and give them a written summons with their names, requesting that they attend the police station.
The Tribunal noted that they had not previously mentioned that they have been served with a written summons. The second named applicant said that they have not previously been asked so they did not mention that they were served with a written summons. The second named applicant said they would discard the paper summons after a few days and did not have any documents to provide the Tribunal.
The Tribunal noted that both applicants were able to legally depart Vietnam, which seems inconsistent with country information which suggests that people who are of interest to the authorities have their name placed on a ‘watch list’ and are unable to depart. The second named applicant said they had valid tourist visas and therefore were able to depart Vietnam.
The applicant said that as Hoa Hao Buddhist followers, the government would be happy that they were leaving Vietnam. The Tribunal noted that according to country information, people who are considered a threat in Vietnam are not able to leave. The applicant maintained the authorities wanted them to leave Vietnam.
When asked about problems they experienced in Vietnam, the applicant said when they were in [a certain] Province their family was surrounded and they escaped. The people surrounding them were dressed up as the police and assaulted him. They left that province in 2000 and moved to [Province 1] because they knew other followers of their religion. They stayed in [Province 1] and continued to practice their religion until they came to Australia.
The Tribunal asked the applicants if they have spoken out in support of their religion since they have come to Australia. The applicants said they have not spoken out. The applicant said he does not have much knowledge about his religion so he has not spoken out. The applicant said his goal is to be left alone so that he could practice his religion.
The Tribunal observed that it was surprised that no one from the Hoa Hao Buddhist community in Australia has come to speak out in support of their application. The second named applicant said that there are Hoa Hao Buddhists in Australia. When asked why no one from the community has come to give evidence in support, the second named applicant said that in Australia there is religious freedom. The people that speak out are politically involved and she is not one of those people. The applicant also confirmed that he was not politically involved in his religion.
The Tribunal observed that they departed Vietnam nine years ago and asked why they would be of any interest to the authorities if they returned in the reasonably foreseeable future.
The applicant said he is now aware the Vietnamese authorities suppress people and they would put him in jail if he returned. He said that he is aware that there are five to six followers in prison. The second named applicant said that she fears returning to Vietnam because her friends ([Named]) who were followers were put in prison because they were gathering together.
At the conclusion of the hearing the agent referred to the applicant’s evidence and submitted that the applicant was aware of the distinction between registered and unregistered Hoa Hao Buddhists and the world “trading” means registered and “traditional” means unregistered.
The Tribunal attempted to clarify with the applicant his understanding of the distinction between registered and unregistered followers of Hoa Hao Buddhist in Vietnam. He claims that registered Hoa Hao Buddhism was made up by the government and the followers work like fortune tellers and receive money for profit. He maintained that the unregistered followers practice at home and don’t engage in “trading”. The Tribunal found that the applicant was unable to provide any further meaningful explanation.
Findings
The applicants claim to be followers of the “genuine” or “unregistered faction of Hoa Hao Buddhism” who have come to the adverse attention of the authorities in Vietnam and have been summonsed on multiple occasions because of their home based religious practice.
DFAT Country Information Report Vietnam, 21 June 2017, provides the following information on freedom of religion in Vietnam and the treatment of Hoa Hao Buddhism practitioners:
3.6 Article 24 of the Constitution states that all people have the right to freedom of belief and religion, and have the right to follow any religion or to follow no religion. In addition, all religions are equal before the law; the State respects and protects freedom of belief; and ‘no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the laws’. However, as with political opinion, these rights are conditional. The Penal Code 1999 establishes penalties for practices that, in the Government’s view, undermine peace, national independence and unity. The Government’s routine application of these laws in practice leads to limits on religious freedom, particularly with regard to unregistered organisations.
3.7 A new Law on Belief and Religion was passed by the 14th National Assembly (November 2016), providing modest improvements to the restrictive regulatory environment for religious practice. This law replaces the 2004 Ordinance on Religion and Belief (Ordinance 21) and the revised Implementation Decree 92 (promulgated in January 2013). The new law shifts the regulation process in multiple areas (e.g. attendance at seminary, ordination, hiring of clergy) from an approval system to a less burdensome notification system, allowing it to move forward with such activities, without explicit government approval. The amount of time a religious organisation must carry out religious activities as a condition for national-level recognition has been reduced from 23 years to five years.
3.8 The treatment of religious groups varies widely across different areas of the country and is further dependent upon their relationship with the Government. The CPV maintains a strong atheistic stance against religion; however, Vietnam is traditionally a Buddhist country, with more than half of the current population (majority Kinh ethnicity) considering themselves to be adherents of Mahayana Buddhism. According to the US Department of State’s 2016 report on religious freedom, the Government continued to monitor the activities of some religious groups, mainly unregistered church groups in ethnic minority communities, due to their real or perceived political activism. Local authorities regularly blocked religious gatherings and temporarily detained members of some unregistered groups, especially in ethnic minority regions. DFAT is also aware of credible reports of local authorities either delaying or denying applications for approval and recognition of religious groups with no reason provided
….
3.17 Hoa Hao Buddhists constitute 1.5-3 percent of the total population (approximately 1.3 to 2.8 million) and is one of 14 distinct religions that hold full government recognition and registration. However, some adherents do not participate in government-recognised groups. The government-sanctioned Central Committee of Hoa Hao Buddhism is located in An Giang province in the Mekong Delta area, the birthplace of the religion’s founder, Prophet Huynh Phu So. His birth date is a significant celebration day for followers each year on 25 November. An important aspect of the faith is the emphasis of practising at home or while tending your land, given most followers are farmers. The religion favours grassroots aid work over temple worship or elaborate ceremonies.
3.18 Many followers refuse to join the government-sanctioned Hoa Hao Buddhist organisation due to authorities’ tight control over the central committee. Human rights defenders reported that plain-clothes police continue to monitor and harass leaders of unregistered Hoa Hao groups. In August 2016, a member of the unregistered Hoa Hao group that operates outside government control was released from prison after serving a two-and-a-half-year sentence. He was arrested in 2014 and charged with creating a ‘serious obstruction to traffic’ while he and a colleague were on their way to visit a former political prisoner.
3.19 DFAT assess that individuals who engage in open criticism of the government-sanctioned Central Committee of Hoa Hao Buddhism or the authorities in An Giang province have a high risk of harassment, destruction of property and pressure to join the government-sanctioned groups. Followers who practise their faith at home and within government-sanctioned boundaries are unlikely to attract adverse attention from authorities.
The Tribunal has considered the country information and applicants’ evidence at the hearing and found aspects of the applicants’ evidence vague and inconsistent. The Tribunal finds that when the applicants were questioned about their religion they had a tendency to speak around the subject and repeat certain details without addressing the crux of the information requested. In making this finding, the Tribunal is mindful of the difficulties of assessing oral evidence provided through an interpreter. The Tribunal has also taken into consideration the applicants’ level of education.
The Tribunal finds it concerning that despite their claim that they follow the unregistered faction, Hoa Hao Buddhism, they were only able to provided limited and vague evidence to the Tribunal about how this branch differs from the registered or “trading” branch.
Country information detailed confirms that many followers of Hoa Hao refuse to join the government-sanctioned Hoa Hao Buddhist organisation due to authorities’ tight control over the central committee. The Tribunal would have expected the applicants, who claim to follow the unregistered branch of Hoa Hao Buddhism, to explain why they are opposed to the registered branch of religion.
Having considered the applicant’s evidence, the Tribunal does not accept that they are followers of the unregistered branch of Hoa Hao Buddhism. The Tribunal finds, however, that the applicants were able to demonstrate a basic understanding of Hoa Hao Buddhism when questioned at the hearing. For example, they knew the name of the founder (Huynh Phu So) and the dates of special Hoa Hao Buddhist celebrations. In the circumstances, the Tribunal is prepared to accept the applicants are followers of the registered branch of Hoa Hao Buddhism and that they have regularly worshiped at a Hoa Hao temple in Vietnam. In making this finding the Tribunal has also had regard to the evidence provided by the applicants during their protection interview where they claim to worship at a temple and claim that they were part of the registered branch of Hoa Hao Buddhism in Vietnam.
The Tribunal notes that in 2013 the National Board of the registered Hoa Hao Buddhist Church produced a report to the UNHCR on the protection and promotion of the Hoa Hao Church in Vietnam. The report states on 21 June 1999 (the 60^th anniversary of the founding of the religion) the authorities of Vietnam recognised the legal status of the Hoa Hao Buddhist Church and that there are 1.3 million followers in 14 provinces in the southern part of Vietnam. The report states:
There are also big festival of the Church, one on the 18 of May of the Lunar New Year to commemorate the establishment of the Church and one on the 25 of November of the Lunar New Year to commemorate the birthday of Master Huynh. At these ceremonies, thousands of followers of Hoa Hao from all provinces and cities throughout the country flock to worshipping places of the Church to attend. There are 41 Hoa Hao churches that have been recognized. An Hoa Pagoda – or Thay Pagoda – was the place where Master Huynh first put his incent bowl to “plead to the earth and heaven” to establish religion in the Year of the Cat 1939 and now becomes the center for worshipping, not only for followers but also guests who can enjoy free meals offered by the Church.[5]
[5] Hoa Hao Buddhist Church, › uprweb › downloadfile
The Tribunal has also had regard to correspondence dated 24 August 2015 issued by [an official] of [Temple 2] in [state]. The letter states that the applicants are “Buddhist” and joined the temple and “attend services regularly”. The letter makes no reference to the applicants being followers of the unregistered branch of Hoa Hao Buddhism. The Tribunal finds that since the applicants arrived in Australia they have continued to attend a Buddhist temple to practice their religion. The Tribunal finds that regular attendance at the Buddhist temple appears on its face to be inconsistent with the unregistered genuine home based practice of Hoa Hao Buddhism.
The Tribunal has had regard to country information and finds that genuine Hoa Hao Buddhism is considered a reformist Buddhist religion that emphasises personal faith and simplicity in worship and as a result has no special places of worship. The practice requires followers to practice at home and not at pagodas and temples.[6] This form of practice is particularly relevant to the unregistered branch of Hoa Hao Buddhism, which is based on home practice and distinguishes itself from the registered Hoa Hao Buddhism, which has 41 temples recognised by the Vietnamese government.
⁵Canada: Immigration and Refugee Board of Canada, Vietnam: The Hoa Hao religion: type, structure, leaders, number of members, and the treatment of members by the government (January 2000 – May 2001), 23 May 2001, VNM36745.E, available at: >
The Tribunal also found the applicants’ evidence about the threats they received from the Vietnamese authorities lacking in credibility. The Tribunal did not find it plausible that the police would issue the applicants with 50 to 60 written summonses ordering that they attend the local police station where they were detained, threatened and told to discontinue their religious practice. The Tribunal finds it difficult to accept that the police in Vietnam would continue to issue summons after summons and take no further action against the applicants who continued to disregard their demands. The Tribunal finds the applicants manufactured this claim. In making this finding, the Tribunal has considered the statements from two witnesses in Vietnam who claim to be Hoa Hao Buddhists from the same prayer group as the applicants. The witnesses state that the applicants were summonsed and regularly came to the attention of the police because of their religious beliefs. The Tribunal has placed no weight on this evidence in light of the Tribunal’s findings above.

Having found the applicants are registered Hoa Hao practitioners, the Tribunal has considered whether the applicants will face a real chance of persecution on return to Vietnam. Country information prepared by DFAT confirms that individuals who engage in criticism of the government-sanctioned Central Committee of Hoa Hao Buddhism or the authorities have a high risk of harassment. Followers who practice their faith at home and within government-sanctioned boundaries are unlikely to attract adverse attention from authorities.
The Tribunal has had regard to the country information and finds that the applicants, as registered followers of Hoa Hao, will be able to continue to follow their religious practice in Vietnam without attracting the adverse attention of the authorities.
Anti-government imputed political opinion
Next, the Tribunal has considered the applicants’ claim that if they were forced to return to Vietnam they would feel compelled to stand up against the government and fight for the rights of their religious group. In assessing this claim the Tribunal does not accept the applicants are followers of the unregistered branch of Hoa Hao Buddhism. The Tribunal finds the applicants as registered followers of Hoa Hao Buddhims have not previously come to the adverse attention of the authorities and were able to freely practice their religion at registered Hoa Hao temple in Vietnam.
Country information confirms that the Vietnamese authorities have arrested and detained unregistered or “independent” Hoa Hao Buddhist activists who have spoken out against the government. For example Human Rights Watch reported in 2018 that:
In recent years, there have been numerous incidents of protest and government attacks centering on Hoa Hao believers. In August 2005, after one serious crackdown, a Hoa Hao Buddhist follower, Tran Van Ut, burned himself to death in protest. A dozen of Hoa Hao Buddhist activists were arrested and sentenced to many years in prison. In May 2017, Vinh Long police arrested Nguyen Huu Tan, an independent Hoa Hao Buddhist practitioner, on charges of conducting propaganda against the state. Police later claimed he committed suicide with a knife left in the interrogation room by a policeman. His family protested, pointing out many discrepancies between what they saw on his body and a blurry police video recording shown to them briefly.
Most recently, on January 23, 2018, the People’s Court of An Giang province convicted Hoa Hao Buddhist activists Vuong Van Tha, his son Vuong Thanh Thuan, and his twin nephews, Nguyen Nhat Truong and Nguyen Van Thuong, to between six and 12 years in prison for “conducting propaganda against the state” under article 88.
At least 129 people are currently imprisoned in Vietnam for expressing critical views of the government, taking part in peaceful protests, participating in religious groups not approved by the authorities, or joining civil or political organizations that the ruling Communist Party of Vietnam deems threatening to its monopoly on power. Vietnam should unconditionally release them and repeal all laws that criminalize peaceful expression.[7]
[7] >
Having considered the applicants’ evidence and their past conduct in Australia and Vietnam, the Tribunal is not satisfied the applicants, as registered Hoa Hao practitioners, will feel compelled to stand up against the government and fight for the rights of their religion.
In making this finding the Tribunal notes that the applicant said he does not have much knowledge about his religion so he has not spoken out in the past. The applicant said his goal is to be left alone so that he could practice his religion. The second named applicant said she does not speak out about her religion and is not politically involved in her religion.
The Tribunal finds that the applicants have been living in Australia since 2009 and have not spoken out in support of their religious beliefs despite having the freedom to do so. The Tribunal also notes the applicants have not spoken out against the Vietnamese government in the past. The Tribunal is not satisfied that there is a real chance the applicant’s will seek to voice their opinion and speak out in support of Hoa Hao Buddhism if they return to Vietnam in the future.
The Tribunal also finds that the applicants were able to legally depart Vietnam on validly issued Vietnamese passports. The Tribunal finds this information appears inconsistent with the applicants’ claim that they were persons of interest to the Vietnamese authorities, given country information indicates that Vietnamese authorities are known to confiscate passports and prohibit international travel for persons viewed as dissidents.[8]
[8] OGCOD145417: Country Information Report Vietnam 2013, UK Home Office, 9 August 2013
Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicants, as registered Hoa Hao Buddhists, will suffer serious harm if they return to Vietnam because they will be imputed with an anti-government political opinion. The Tribunal finds that the applicants’ fear of persecution because of their actual or imputed political opinion is not well-founded.
In assessing the credibility of the applicants’ claim that they fear persecution from the authorities in Vietnam, the Tribunal has also had regard to the significant delay in the applicants applying for protection visas since they first arrived in Australia. The applicants claim they did not know that they could apply for refugee status and claim not to have had knowledge of protection visas until they were advised by a friend in 2014.
The Tribunal has considered the applicants’ submissions but has given them little weight. The Tribunal finds that the applicants arrived legally in Australia [in] November 2009 as holders of Sponsored Family Visitor visas, which were valid for three months. The applicants were sponsored by the applicant’s sister, who was granted a protection visa in [a certain year]. The applicant said when they arrived in Australia they stayed with his sister in [another city] and that she has provided them with support. The applicants confirmed at the hearing that they were aware that the applicant’s sister was granted a protection visa by the Australian government. This evidence does not seem consistent with the applicants’ claim that they were not aware they could seek refugee status in Australia.
The Tribunal would have expected that if the applicants held a subjective fear of persecution in Vietnam they would have made enquires with the Department, a migration agent or family members in Australia about what options were available for them to lawfully remain in Australia. The Tribunal would have expected that the applicants would have applied for protection visas soon after they arrived in Australia rather than wait for five years if they feared persecution in Vietnam.
Failed asylum seekers

100. The Tribunal acknowledges that if the applicants return to Vietnam in the reasonably foreseeable future, as failed asylum seekers, the Vietnamese authorities may well infer the applicants were in Australia seeking protection, even though this information is confidential. The Tribunal accepts that failed asylum seekers are a particular social group, given that they share a common characteristic which distinguishes them from society at large, other than the shared fear of persecution. The Tribunal has therefore considered relevant country information in respect of the treatment of failed asylum seekers in Vietnam. The Tribunal has also considered this claim under the complementary protection criterion.
101. The Tribunal has regard to the following information prepared by DFAT regarding the treatment of failed asylum seekers by the authorities in Vietnam:
Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
DFAT assesses that persons who paid money to organisers of people smuggling operations are viewed by the Government as victims of criminal activity (people smuggling), rather than as criminals facing the penalties allowed in the law for illegally departing Vietnam. While some returnees can be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people-smuggling operations. DFAT understands this to be the case in relation to several individuals who were on board vessels returned to Vietnam in 2016. [9]
[9] DFAT Country Information Report Vietnam, 21 June 2017

102. DFAT provides the following information about the conditions for returnees:
DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.
DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.[10]
[10] DFAT Country Information Report Vietnam, 21 June 2017, 5.21

103. As detailed above, the applicants departed Vietnam legally on validly issued Vietnamese passports. They are not people smugglers. Given DFAT’s assessment, the Tribunal does not accept that there is more than a remote chance that they will be fined upon return under Article 21 of the Penal Code 1999. With regards to Article 91 of that code, the Tribunal does not accept that this will be applied to the applicants upon their return as DFAT’s assessment states that it is unaware of it being used in the past against failed asylum seekers. The assessment records that where people have been detained upon return, it has been due primarily to actual or imputed political views.
104. As detailed above, the Tribunal does not accept the applicants have been summonsed or previously come to the adverse attention of authorities. Having regard to the applicants’ profiles, the Tribunal does not accept that because they have sought asylum in Australia they will be imputed with a political opinion that is opposed to the Vietnamese government.
105. The Tribunal does not accept that the applicants, as registered followers of the Hoa Hao Buddhist faith, will be imputed with an anti-government political opinion. The Tribunal does not accept they are political activists. Having considered the applicants’ profile and personal circumstances the Tribunal is not satisfied that there is a real chance that the applicants will face serious harm because they will be returning to Vietnam as failed asylum seekers. This is because of DFAT advice such that the view of the Vietnamese government is that Vietnamese citizens who make asylum claims generally do so to achieve residence in countries like Australia.[11]
[11] CX311927: "Treatment of failed asylum seekers on return to Vietnam", Australia: Department of Foreign Affairs and Trade (DFAT), 24 July 2013
Household registration
106. The Tribunal also notes that at the first hearing the applicants raised the issue that they have lost their household registration since leaving Vietnam. Submissions provided by the applicants’ representative suggest the applicants will face issues as a result of their loss of registration, and that if they elected not to re-register they will struggle to subsist.
107. According to country information, the Ho Khau household registration system is the most important personal legal status verification document. Prior to legislation that came into force on 1 July 2007, Vietnamese citizens who moved to work elsewhere in Vietnam could experience difficulty in obtaining registration in the area to which they moved. Access to employment with government or state-owned enterprises, and social services, was dependent upon a person having permanent household registration. Living without permanent household registration used to be common, with up to 2.2 million people in this situation in mid-2007.[12]
¹¹ Department of Immigration and Border Control (2016), Vietnam: VNM CI160223100206944 - Household registration and young women
108. Correspondence between the Immigration and Refugee Board of Canada (IRBC) and an official at the Consulate General of Canada in Ho Chi Minh City, Vietnam in 2009 confirmed that Vietnamese citizens may be removed from the household register when they emigrate to another country for six months or longer.[13] The UN Vietnam Office noted in 2010 that “only those who are registered as permanent residents in the place they reside have full entitlements to government services – the rest must pay for them or are excluded”.[14]
[13] Immigration and Refugee Board of Canada 2009, VNM103087.E, UNHCR Refworld, 24 February <
[14] UN Viet Nam 2010, Internal Migration: Opportunities and Challenges for Socio-Economic Developments in Viet Nam, July, p. 17, p. 18 < According to the IRBC:
The Official also indicated that persons who have been absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reasons shall have their names crossed out from the household registration book. When they return, they must re-apply for registration of their permanent residence as stipulated.[15]
[15] Immigration and Refugee Board of Canada 2009, VNM103087.E

110. However, Vietnamese citizens do not lose their citizenship simply because they lived abroad for a period of time. According to the Saigon Daily, the Law on Residence 2007 allows Vietnamese citizens living abroad to apply for a ho khau upon their return to Vietnam. The newspaper quoted Senior Lieutenant-Colonel and Head of the Police Bureau of Administrative Management on Social Order, Vo Van Nhuan on 19 July 2009:
Based on Article 2 of the Law of Residence [2007], Vietnamese people who live in a foreign country but still retain their Vietnamese citizenship can apply for a ho khau when returning to the country to live.[16]
[16] ‘Online Exchange Between Police Leader and SGGP Readers About Residence Law Implementation’ 2007, Saigon Daily, 29 July <

111. The Tribunal, as did the first Tribunal, relies on this information and finds the applicants can apply for household registration upon return to Vietnam, and will therefore not be denied access to services or the ability to subsist.
112. In conclusion, having considered all of the claims and evidence both individually and cumulatively, the Tribunal is not satisfied there is a real chance the applicants will face persecution in Vietnam in the reasonably foreseeable future because:
·of their religion;
·of their actual or imputed anti-government political opinion;
·they will be returning to Vietnam as failed asylum seekers; or
·they will have to reapply for a ho khau and will struggle to subsist.

113. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
114. Next, the Tribunal has considered the applicants’ claims having regard to the complementary protection criterion.
115. The Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk they will suffer significant harm, as set out in s.36(2)(aa).
116. In MIAC v SZQRB, the Full Federal Court held that the test for “real risk” imposes the same standard as imposed by the “real chance” test as it applies to the assessment of well-founded fear in the Convention definition.[17]
[17] MIAC v SZQRB (2013) 210 FCR 505
117. As detailed above, the Tribunal finds the applicants are registered followers of Hoa Hao Buddhism and they will be able to continue to practice their religion without fear of persecution. The Tribunal does not accept that they have come to the adverse attention of the authorities because of their religious beliefs or for any other reason. For the reasons detailed above, the Tribunal does not accept that they will feel compelled to speak out against the government. The Tribunal does not accept that they will be imputed with an anti-government political opinion because of their religious beliefs or because they will be returning as failed asylum seekers. The applicants have legally travelled to Australia as visitors on validly issued Vietnamese passports for family reasons. They will be able to obtain household registration when they return to Vietnam. The Tribunal has had regard to the country information detailed above and does not accept there is a real risk they will suffer significant harm because they will be returning to Vietnam as failed asylum seekers.
118. Having considered the claims both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam there is a real risk they will suffer significant harm.
119. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
120. The Tribunal affirms the decision not to grant the applicants protection visas.

Christopher Smolicz

Member

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[2019] AATA 6507

15 October 2019

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