1904678 (Refugee)

[2019] AATA 5709

1904678 (Refugee) [2019] AATA 5709 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904678

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Anne Grant

DATE:11 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 June 2019 at 1:55pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – land protest – family business – escaped immigration detention – criminal charges – no real chance of serious harm – 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] FCAFC 33

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam, arrived in Australia by boat [in] May 2013.  He was taken into immigration detention.  He escaped from custody of immigration officials [in] May 2013 whilst on a medical appointment.  He remained at large until October 2018 when he was arrested and charged with [a criminal offence].  The applicant confirmed at hearing that he pleaded guilty and was sentenced to [months] in prison (time served.)  After release he was transferred back to Immigration Detention. On 25 January 2019, he lodged an application for a Safe Haven Enterprise Visa which was rejected on 25 February 2019.

3. The applicant lodged a request for review of that decision and a hearing was conducted at the tribunal with the assistance of an interpreter in the Vietnamese and English languages on 28 May 2019.  The applicant was being held in detention in [State 1] and the hearing was conducted by video conference.

   CRITERIA FOR A PROTECTION VISA

4. 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, 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.

5. 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.

6. Section 5H of the Act defines a refugee, in the case of a person who has a nationality and is outside the country of their nationality, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. 

7. Under s.5J of the Act 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.

8. Section5J(2)-(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution in the following manner:

   (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 them 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.   

9. 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’).

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

11. Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. 

    CLAIMS AND EVIDENCE

12. The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.

    Applicant’s oral and written evidence

13. Although the applicant initially presented on arrival in Australia as [Mr A], (born [Date 1]) he has since provided a current Vietnamese passport (issued in 2014) demonstrating that he is [Mr B], born [Date 2].  I find that the applicant has established that he is [Mr B] and is a citizen of Vietnam.  His claims have been assessed against Vietnam as his receiving country.

14. I have before me a digital copy of the Department’s file which includes a copy of the applicant’s protection visa application and the delegate’s reasons for decision.  The applicant also provided a copy of the delegate’s decision to the Tribunal with his application for review.

15. The applicant claims to fear harm from the Government of Vietnam, represented by police and local government authorities in his home town in [Ha] Tinh province.  He claims to fear that he will be arrested and imprisoned and perhaps killed for having protested against the compulsory acquisition of land on which he and his parents ran a market business with other families in 2012.  The land was taken by local authorities in September 2012, despite objection by the land users (including the applicant’s family) and without any compensation to the users. 

16. The applicant’s evidence is that he and his family, along with other market stall holders, were at work as usual in September 2012 when police and authorities came onto the site with loud hailers, demanding that all users vacate the site, because it was to be cleared.  When the market holders disputed this direction, a protest and stand-off took place.  Bystanders started to come and see what the commotion was.  The first stall in line was owned by a Mr [C].  He refused to leave and was tasered by police.  Then came the applicant’s family stall.  He refused to leave also, and by now a crowd had gathered.  People were yelling that it was not right to take the land before compensation had been paid, saying that the land grab was illegal and this behaviour was government aggression against the people without justification.  A scuffle occurred between the applicant and the police, because he refused to be moved or to be taken.  He resisted them trying to handcuff him and as a result [he sustained an injury].  Eventually, he was cuffed and they tried to drag him to their car to take him to the station.  People were yelling at them that the arrest was illegal and that they should release the applicant who hadn’t done anything.  The applicant said that he told the police that he would co-operate with them if they removed the cuffs and would go in to the police station the following morning to discuss the incident.  The applicant explained that it was late in the afternoon by this stage and he knew they wanted to get out of the situation, so he proposed this as an option.  They agreed.  The land was fenced off and bulldozed.  Only some of their family stock and equipment could be recovered.

17. The applicant claims that on that same evening, his parents said that he had to leave because it would not be safe for him to go alone to the police station.  They feared that he would be charged with the very serious offence of being ‘against the State’ and that he would be put in jail.  The applicant claims that he fears that the State of Vietnam or its’ agents would possibly kill him because he had opposed them. 

18. The applicant’s evidence is that after the incident, and the loss of their market business,  he left his home and travelled to Vin City where he stayed with a friend of the family, assisting them in their small family business.   

19. The applicant claims that whilst he was in Vin City, the police went to his parents to find out where he was, and served two summonses on them, requesting that he attend at the local Provincial Police station.  His parents told him about it, and he had provided copies of two summonses with his claim for protection.   Because of this, his parents said it was too dangerous for him to return as he would be in ‘big trouble’ because the offences they were wanting to charge him with were very serious.  His parents made the arrangements for him to leave the country.  

20. The applicant gave evidence that his parents continue to seek compensation for the acquisition of their land and keep getting told that ‘it is under consideration’. They have not been able to re-establish their business elsewhere and now work [for] someone else.  The applicant had worked [in Occupation 1].   The applicant claimed that his parents get threatened and harassed when they pursue their rights.  When asked what that meant, his evidence was that they get warned about causing trouble and discouraged from standing up for their rights – (but they continue to pursue them regardless).  He confirmed that they have never been charged with any offence or suffered any other harm (apart from losing their business).  However his parents tell him that the police still look for the applicant and that it is not safe for him to return.

21. The applicant claims that his intention in coming to Australia was to seek the protection of Australia from the threat against him in Vietnam.  He gave evidence at hearing that his reason for escaping from detention custody here in Australia was because he was afraid that the Vietnamese Police were going to come and take him back to Vietnam.  Over the following years, he claims that he did not know the legal system in Australia and that was why he did not seek protection at any point until his arrest on [charges] in 2018.          

22. The applicant claimed to be unaware of the other market holders having ongoing difficulties of any kind arising from the ‘land grab’.  His parents have not heard anything about whether others got compensation as they (the other market holders) refuse to give much information out.  Mr [C] was taken to hospital after being tasered.   The applicant claimed that he believed that Mr [C]’s family was warned by police they would be blacklisted if they complained about what happened to him - to discourage them from complaining about the treatment he received on that day in September 2012.

23. The applicant confirmed that he has never had any problems with authorities, police or government in Vietnam apart from this one incident in September 2012.

    Country information

24. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign affairs and Trade (DFAT) expressly for protection status determination purposes.  I have had regard to the following relevant  information from DFAT Country Information Report Vietnam (21 June 2017), discussed generally with the applicant at hearing.

    3.25 Political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities; however, the treatment from authorities generally depends on the individual’s level of involvement.

    3.27 DFAT assesses that individuals who are known to authorities as active organisers or leaders of political opposition are at high risk of being subject to intrusive surveillance, detention, arrest and prosecution. DFAT is aware of large numbers of credible reports of prominent political and human rights activists, as well as former political prisoners of conscience, being monitored, prevented from leaving their homes and/or attending meetings and events. They have also reportedly been subjected to widespread physical and psychological harassment, which in most cases has not been the subject of credible police investigations.

    Supporters and protesters

    3.28 Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issues will result in protests being shut down, police intimidation and harassment.

    3.29 DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.

    Police
    5.4 Internal security is the responsibility of the Ministry of Public Security, although the military maintains public order in the event of civil unrest in some remote areas. Police organisations exist at the national, provincial, district and local levels, and are subject to the authority of people’s committees at each level. The police are generally effective at maintaining public order. The Ministry controls the police, a special national security investigative agency, immigration and other internal security units. Credible sources report that local police also use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and others, including religious worshippers, who are perceived as undesirable or a threat to public security.

    5.5 The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice police organisations operate with significant discretion and little transparency. The Vietnamese law enforcement agencies are highly efficient in controlling public disturbances and communal violence. However, other police capabilities, including many investigative capabilities, remain limited and training and resources are inadequate to meet current and emerging transnational crime issues facing Vietnam and the broader region.

    Detention and Prison

    5.9 The prison population in Vietnam is approximately 136,759 as at 1 July 2016, approximately 121,625 males and 15,134 females. This is a similar prison population rate as Australia. Around 12 per cent of the Vietnamese prison population are pre-trial detainees, around half the rate for Australia. According to the Ministry for Public Security, 427 inmates are foreigners most commonly incarcerated for drug offences.

    5.10 Prison conditions in Vietnam are considered harsh but generally not life-threatening. There are reports of a lack of quality food and water, and of poor sanitation. Information on prison conditions is limited due to a lack of transparency. Deaths in custody are predominantly caused by serious health conditions that can be exacerbated by insufficient or delayed medical care, poor sanitation, and malnutrition. Between 1 July 2011 and 30 June 2016, MPS reported 12,246 cases of tuberculosis and 71,036 cases of HIV within the prison population. There are credible reports of deaths caused by lethal force by authorities. Prisoners held on politically-related crimes are generally kept separate from other inmates, and there are credible reports that these prisoners are housed with dangerous criminals as a punitive measure and an effort to discourage further activism. Political prisoners are also reportedly routinely denied access to medical care.

    TREATMENT OF RETURNEES

    5.15 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’.

    5.16 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.

    5.17 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.

1. I have also had regard to the following information from the US Department of State 2018 Vietnam Human Rights Report, which was discussed with the applicant at hearing:

   By law all land belongs to the government (“all the people of Vietnam”) which has granted considerable decision-making authority for land pricing, allocation, and reclamation to local people’s committees and people’s councils, which has contributed to unfair business practices and corruption.

   There were numerous reports of clashes between local residents and authorities at land expropriation sites during the year. Disputes regarding land expropriation for development projects remained a significant source of public grievance. Many whose land the government forcibly seized protested at government offices for failure to address their complaints. Some coercive land seizures resulted in violence and injury to state officials and residents. There were also reports of suspected plainclothes police officers and “thugs” hired by development companies to enforce government seizures by intimidating and threatening residents or breaking into their homes. Authorities arrested and convicted multiple land rights protesters on charges of “resisting persons on duty” or “causing public disorder.”

   CONSIDERATION AND FINDINGS

2. On the basis of the applicant’s passport presented at hearing and his other evidence about nationality, I am satisfied that the applicant is a national of Vietnam.  Accordingly, Vietnam is the country of reference with respect to the refugee criteria and the receiving country in respect to complementary protection criteria.

   Does the applicant have a well-founded fear of persecution should he return to Vietnam? 

3. I accept that the community land used by the applicant’s family (with others who conducted market stalls on the site) was taken by authorities in September 2012.  Based on his evidence at hearing and the specific nature of the circumstances and events he described, I do accept that the applicant was involved in resisting the bulldozing of that land and in a scuffle with police on that day.  I also accept that the crowd present objected to the police behaviour, that they abused the police and asserted that they were acting illegally and oppressing the citizens without justification.  I accept that the applicant was released from handcuffs on agreeing to go in to the police station the following day.  I accept that he left his home town that same day to stay with friends of his family in Vin City and departed Vietnam some 8 months later.    

4. I do not accept any of the remainder of the applicant’s claims. 

5. I do not accept that the applicant’s parents were served with summonses in October and November 2012 as he claims, or that he is facing charges of ‘propaganda against the State’ as a consequence of him resisting the seizure of his parents’ market site.  I discussed with the applicant at hearing my concerns about the legitimacy of those summons documents lodged by the applicant.  Firstly, they do not bear any official insignia or letterhead apart from a stamp at the signature.  Secondly, they are dated the same day that they ‘request’ that the applicant attend for questioning.  The purport of the documents is to give the applicant notice of a future date and specific time on which he is requested to attend at the local police station to ‘answer questions in “the case regarding propaganda against the People’s Government of the State of Vietnam”.’   I consider the fact that they purport to be dated on the same day that he is ‘requested to attend’ at 9:30am suggests they are not official summonses issued against the applicant.    Thirdly, the summonses purport to request his attendance to answer questions related to propaganda and not “resisting police” or “obstructing order”.  I note that these lesser offences are the offences referred to in the country information as more likely in prosecutions arising from land grab protests, and in the circumstances described by the applicant.  During the hearing, the applicant himself repeatedly referred to ‘resisting police or obstructing police’ as the offences that he had most likely offended against, suggesting that the topic in the summonses themselves is inconsistent with the applicant’s own evidence about what charges he may face on returning to Vietnam.  Finally, I note the summonses were not allegedly sent until some weeks after the incident took place.  The applicant’s case is that what he had done was considered very serious indeed, and the offences so serious that they would be pursued even now (nearly seven years later) if he were to return to Vietnam and which might ‘have him killed’.  The delay in issuing the purported summonses does not accord with the seriousness claimed by the applicant.  When I consider all of these factors together, none of which have been explained by the applicant despite him being given an opportunity to do so at hearing, I find that the summonses cannot be relied on to support the applicant’s claims.  I find that the summonses have been fabricated to support the applicant’s claims for protection.

6. I do not accept the summonses are legitimate, and consequently I do not accept that the offences that the applicant will potentially be said to have committed, should he return to his home town, are as serious as he claims.    I rely on the country information sourced from USDOS as discussed with the applicant at hearing (and extracted above in paragraph 24), and his own evidence, and consider that the most likely outcome if the applicant was charged is that he might be arrested and convicted on charges of resisting persons on duty or causing public disorder. Noting that he has no history of prior protests or involvement with the authorities, I do not accept that the applicant would have or does have a profile as a person who has demonstrated antagonism towards the government based on that one day in 2012.

7. As to the outcome if he is arrested and charged with public order offences, I do not accept the applicant’s assessment of there being a risk that he will be killed in that event.  Though it was not raised by the applicant, I have also considered whether there is any chance that he will face an additional charge of having absconded (by leaving despite having agreed to attend at the station the next day) and face some additional potential penalty for that offence.  As noted above, I do not accept that the summonses are legitimate and therefore I do not accept that the applicant has failed to respond to any such summons for the serious charge therein.  I consider, based on his evidence, that his decision to depart would be considered by police in the context of the lesser charges he was potentially facing and of him having lost his job with his parent’s market and departing to find new employment.  The applicant has not claimed and I do not accept that the evidence before me suggests or establishes that he faces any potential charge of having illegally absconded after the incident took place. 

8. I discussed with the applicant the country information which suggests that high profile activists who speak against the State in Vietnam may face harassment, arrest and repeated questioning.  However even those who have written books against the state and might be seen to be loud and outspoken public critics of the government are not killed for their dissension or even imprisoned indefinitely, despite facing some harassment and oppression in their daily life. 

9. I also discussed with the applicant that it seemed improbable that he would be considered to be an ‘enemy of the State’ for life because he took part in one protest (for a very real and legitimate family cause) in 2012.   In reaching that conclusion, I have taken into account and  I note that his parents, who continue to speak out against the seizure of their land and to seek redress for their loss, have never been arrested or charged with any offence amounting to propaganda against the State, suggesting the applicant’s claims overstate the reality of his situation. 

10. I do not accept that the applicant has established any basis for his claimed fear that he will be killed by the Government of Vietnam or by its’ police or local authorities if he returns to Vietnam.   I cannot discount there being some chance that the applicant may be arrested and questioned, and potentially charged with resisting or obstructing police in September 2012, even though I consider that he has exaggerated the likelihood of that potentiality.  Taking into account the fact that he was released on the evening the offence occurred and asked to come in the next day, I do not accept that the police considered his offending as serious as he claims.  I consider it implausible that they would free him if they were considering charging him with an offence such as committing propaganda against the State, or any offence more serious than a public disorder or obstruction type offence. 

11. I also do not accept that the applicant faces serious harm – even if he is charged with an offence arising from the protest on the day the land was taken.  On the basis of the country information, I consider that it is plausible that in some instances activists or protesters might get harassed, questioned and charged.  I cannot discount that the applicant may be arrested and charged for minor offences arising out of that event.  However I am not satisfied that getting charged with an offence of obstructing public order or even assaulting police is as serious as the applicant claims, even in Vietnam.  It is noted that his parents, who continue to ‘agitate’ to assert their right to compensation, have been far more troublesome to the State than the applicant was on that one afternoon in September 2012 and they have not faced any official or even unofficial sanction.    I have been unable to locate country information which suggests that minor protesters like the applicant are tortured, imprisoned indefinitely or killed, as he claims to fear.  Based on my assessment of the applicant’s circumstances and the country information, I consider that the worst he might expect on return is to be arrested, fined or imprisoned for a short period; and I find that such penalty, if it eventuates, would not amount to causing the applicant serious harm. 

12. Even though the applicant did not claim it, I have considered whether, if he returns to his home region and joins his parents in seeking redress for the confiscation of the land, there is a real chance that he may be seriously harmed by the local authorities because of those demands for redress.  Based on his evidence that his parents have experienced only low level ‘discouragement’ ‘threats’ and failure to deal with their claims, I do not accept that the applicant  faces any chance of serious harm even if he was to pursue and agitate for compensation.

13. I have also taken into account that the applicant left Vietnam legally on his own passport, suggesting that he was not (even some 8 months after the protest) of any official interest to police or border authorities in Vietnam. He also failed to seek protection when he arrived in Australia and indeed, absconded from the protection of Australian authorities almost immediately on arrival. I consider that these factors additionally  weaken the strength of his claims to face a real chance of serious harm in Vietnam.

14. I do not accept the applicants’ claim that there is a real chance that he will face serious harm (in the form of being killed, physically harmed or imprisoned indefinitely) in Vietnam by the police or local authorities, or that he will be charged with a serious and/or false offence against the State of Vietnam because of his involvement in a land protest in September 2012.  

15. Although not raised by the applicant, the delegate considered whether the applicant potentially faced a real chance of suffering serious harm if he returns to Vietnam as a failed asylum seeker, or as a person who has been convicted and served a term of imprisonment for [an] offence in Australia.  The applicant also did not raise these claims before me.  The applicant departed Vietnam legally and has a legitimate passport issued in Australia in 2014.    Based on the applicant’s circumstances as a person who left the country legally and would be considered a ‘victim’ of people smugglers as described in the country information above from DFAT’s report, which I accept, I do not consider that there is a real chance that the applicant will suffer serious harm on being returned to Vietnam as a failed asylum seeker.

16. In relation to whether the applicant faces a real chance of serious harm due to the [offences] committed and for which he was penalised in Australia, I note the following from DFAT’s country report which was referred to in the delegate’s decision:   

    4.7 According to the MoJ, the principle of double jeopardy applies in Vietnam. Persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes. Article 6 of the Penal Code provides that people who have committed offences overseas, where the sentence has not been served, may be ‘examined for penal liability in Vietnam’. MoJ stated that there is no specific list of offences; however, if the offence committed overseas is considered an offence in Vietnam and the person had not served their sentence, they could be ‘examined’ for penal liability on return to Vietnam.

17. The applicant has served his full sentence in Australia.  Based on the available country information, I find (as did the delegate in the decision under review) that there is not a real chance that the applicant will be tried or punished in Vietnam for [offences] committed in Australia and consequently not a real chance that he will suffer serious harm for that reason.  

18. I have considered the applicant’s claims both individually and cumulatively but I am not satisfied that the applicant faces a real chance of serious harm if he returns to Vietnam.  

19. Consequently I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary Protection

20. I have turned to consider whether the applicant meets the criteria in s.36(2)(aa).  In doing so, I must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Vietnam, there is a real risk that the applicant will suffer significant harm.

21. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

22. I refer to and rely on my reasoning and findings above in relation to the applicant’s claims.   I find that the applicant may face a risk of being charged and imprisoned for (minor) public order offences related to the protest in September 2012 as a consequence of him being returned to Vietnam.  I do not accept that being charged and imprisoned for such offences would amount to causing the applicant significant harm.  I have not accepted that the applicant faces a real chance of being killed, tortured or charged with more serious offences on returning to Vietnam, and consequently, I do not accept that the applicant faces a real risk of suffering significant harm (being arbitrarily deprived of his life, subjected to the death penalty, subjected to torture or to cruel or inhuman or degrading treatment or punishment)  as a necessary and foreseeable consequence of being removed from Australia to Vietnam due to his past involvement in a land protest in September 2012.   

23. Based on the country information referred to and for the same reasons as discussed above, I find that the applicant, having served his full penalty for [offences] in Australia, would not face a real risk of suffering significant (or any) harm in Vietnam due to his conviction for [offences] in Australia.  I also find that he left Vietnam legally and would be returning on a legal passport, even though he paid people smugglers to travel to Australia.  I do not accept that the applicant faces a real risk of suffering significant harm (or any harm) because he fled Vietnam and sought asylum in Australia.  

24. The applicant additionally submitted that, if he returned to Vietnam, that he would face hardship in finding employment, in finding a home and that he did not wish to live there under an oppressive government.  He asked that he be allowed to live in Australia and establish a life here where he could live free from oppression. 

25. I have considered whether these additional potential harms feared by the applicant as a result of being returned to Vietnam could constitute significant harm.

26. I have taken into account the following information in DFAT’s most recent report, which I accept:

    2.8 The World Bank describes Vietnam as ‘a development success story’. Economic reforms (known as Đổi Mới or ‘Renovation’ reforms) launched in 1986 transformed the country from one of the poorest in the world at that time to ‘low middle income status’ over a period of 25 years. Its per capita GDP growth is recognised as one of the fastest in the world, with per capita income moving from USD100 in the early 1990s to around USD2,100 by the end of 2015.

    2.9 While the national poverty rate has declined significantly, from 58 per cent in the early 1990s to 13.5 percent in 2014, it is still above 50 per cent in ethnic minority areas. Rural populations are susceptible for falling back into poverty due to declining productivity growth and economic vulnerabilities. Recurring environmental effects and Government decisions relating to land acquisition and manufacturing or mining production are more likely to affect rural populations.

    2.10 Vietnam is ranked 115 out of 188 countries in the latest United Nations Human Development Index (HDI). Transparency International’s 2016 Corruption Perceptions Index (CPI) ranked Vietnam 113 out of 176 countries; compared with Cambodia at 156, Laos at 123, Thailand at 101 and China at 79.

    …

    2.15 The law prohibits discrimination with respect to employment and occupation based on sex, race, disability, social class, marital status, religion, and HIV/AIDS-positive status. The law promotes and encourages the employment of persons with disabilities; however, in practice social and attitudinal barriers exist to varying degrees.

    2.16 Agriculture employs around 44 per cent of all workers in Vietnam, although this share has been declining steadily and is down from around 70 per cent in 1996. The share of employment in the industrial sector, including manufacturing, has approximately doubled since 1996, to around 21 per cent.

    2.17 Vietnam introduced new minimum wage standards effective 1 January 2017. There are four regional minimum wages currently ranging from VND2.58 million to VND3.76 million (AUD153 – 224) per month. It is unclear at time of writing how widely they have been implemented. Fines exist for labour violations, but are not always enforced due to shortage of training inspectors and low funding. The International Labour Organization (ILO) estimates that around 82 per cent of total employment is informal (or unprotected) labour. Vietnam does not have independent labour unions.

27. I note also DFAT’s assessment that ‘individuals who are known to authorities as active organisers or leaders of political opposition are at high risk of being subject to intrusive surveillance, detention, arrest and prosecution. DFAT is aware of large numbers of credible reports of prominent political and human rights activists, as well as former political prisoners of conscience, being monitored, prevented from leaving their homes and/or attending meetings and events. They have also reportedly been subjected to widespread physical and psychological harassment, which in most cases has not been the subject of credible police investigations.’ (At 3.27)

1. As discussed with the applicant at hearing, I accept that he may experience some hardship in re-establishing himself in Vietnam and readjusting to the political system there.    These are difficulties faced by all citizens living in and returning to Vietnam (or indeed in relocating within the country) and I am not satisfied that he would experience a greater level of difficulty or hardship than any other member of the community in finding employment or accommodation, wherever he chooses to reside on return.   I have also found, based on the evidence before me, that the applicant does not have a profile as an antagonist of the State of Vietnam and consequently,  I am not satisfied that he would be at any risk of or be personally vulnerable to being singled out for oppressive conduct by the State of Vietnam as a necessary and foreseeable consequence of him being returned there.   I do not accept that the additional hardships claimed by the applicant in finding employment and accommodation and also ‘living in an oppressive State’ constitute ‘significant harm’ as that term is exhaustively defined in s.36(2A), whether considered individually or cumulatively.

2. I have considered all of the applicant’s claims cumulatively and individually.  On the evidence and information before me, I find that there are not substantial grounds (or any grounds) for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed to Vietnam. 

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

4. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Anne Grant
   Member