1905598 (Refugee)

1905598 (Refugee) [2023] AATA 2532 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Stafford Fallon
CASE NUMBER: 1905598 & 2101649

COUNTRY OF REFERENCE: Vietnam
MEMBER:Andrew McLean Williams
DATE:30 June 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 June 2023 at 9:07pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – opposition to the government – protests – land resumption without compensation – illegal departure – religion – Catholic – fear of killing – fear of detention – separation from family – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made on 19 February 2019 (Matter No. 1905598) and on 4 February 2021 (Matter No. 2101649) by Delegates of the Minister for Home Affairs thereby refusing to grant the Applicant a protection visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant, who is a citizen of Vietnam, originally applied for the visa on 26 September 2017, and then again on 21 October 2020.
The Delegate(s) refused to grant the visa after concluding that the Applicant was not a person to whom Australia owed any protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act, and was not a family member of another person whom holds a protection visa in the same class, such that protection was owed under either of s.36(2)(b) or s.36(2)(c).
The Applicant appeared before the Tribunal on 27 June 2023 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in both the Vietnamese and English languages.
The Applicant was represented in relation to both reviews by his authorised representative Mr Stafford Fallon (MARN 0209594). Mr Fallon accompanied the Applicant during the Tribunal hearing on 27 June 2023, and had submitted a brief written submission, and an employment reference on behalf the Applicant, prior to the hearing. These were received by the Tribunal on 22 June 2023 and have now been considered by the Tribunal as part of this deliberation.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). An Applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; or they are a member of the same family unit as such a person, and that other person holds a protection visa of the same category.
Section 36(2)(a) provides that a criterion for a protection visa is that the Applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a “refugee”.
A person qualifies as a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to ‘a well-founded fear of persecution’, they are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
In the case of a person without a nationality, they may qualify as a refugee if they are outside the country of their former habitual residence and, owing to ‘a well-founded fear of persecution’, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has ‘a well-founded fear of persecution’ if they fear being persecuted for reasons of their race; religion; nationality; membership of a particular social group; or political opinion; there is a real chance they would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the relevant country.
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken as not having such a fear are then set out in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nonetheless still 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 and repatriated to a receiving country there is a ‘real risk’ that he or she will suffer “significant harm”: s.36(2)(aa) (‘the complementary protection criterion’).
The meaning of ‘significant harm’, and the circumstances in which a person will be taken not to face a real risk of significant harm, are then set out, in ss.36(2A) and in s.36(2B) of the Act, which are similarly extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, as promulgated under s.499 of the Act, the Tribunal has taken account of the Refugee Law Guidelines and the Complementary Protection Guidelines prepared by the Department of Home Affairs (‘DHA’), and Country Information assessments as prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the Applicant is a person to whom Australia owes protection obligations under any of ss.36(2)(a); 36(2)(aa); s.36(2)(b); or s. 36(2)(c).
For the following reasons, the Tribunal has concluded that the Applicant is not owed protection under any of those provisions, such that the decision under review should be affirmed.
Applicant’s Protection Claims:
The Applicant was born in Vietnam on [date]. The Applicant left Vietnam in 2013 and subsequently arrived in Australia [in] April 2013 as an unauthorised maritime entrant.
A Safe Haven Enterprise Visa (‘SHEV’, Subclass XE-790) application was first lodged with the Department by the Applicant on 26 September 2017. A second SHEV application was allowed to be submitted by the Applicant (this was duly lodged on 21 October 2019) by reason of a finding on 3 April 2019 that the Applicant’s first claim was one that was affected by the result in DBB16 v Minister for Immigration and Border Protection ([2018] FCAFC 178)
The Applicant’s claims for protection, including those provided by him during his protection visa interview may now be summarised, as follows:
·The Applicant is Catholic.
·His farming land was resumed by the Vietnamese authorities, and for which he received no compensation.
·The Applicant and other villagers protested the resumption of their land, and they were attacked/assaulted by the authorities.
·The Applicant and his former wife then commenced a [service 1] business, in lieu of farming. The Applicant continued to experience difficulties from the authorities.
·As well, the Applicant was competing in business with other family members (particularly one brother-in-law), and there were tensions and conflict within the family. At times, this became physical. The Applicant received threats from his brother-in-law.
·The Applicant decided he needed to find another solution to look after his children, so a decision was made to depart Vietnam for Australia.
·Other family members in Vietnam have received threats and visits from police/the authorities after his departing Vietnam.
·A routine report that was released on a Departmental website unintentionally has enabled access - at least for a short period - to the Applicant’s personal information.
·The Applicant fears that he will be imprisoned if he were to be repatriated to Vietnam.
·The Applicant fears that he will be killed if he were to be returned to Vietnam.
·People will ‘look down’ on the Applicant, if he were to be returned to Vietnam.
Pre-hearing submissions:
In the written submission lodged with the Tribunal on 22 June 2023, the Applicant indicates that he wished to reiterate his concerns for his own safety and well-being if compulsorily repatriated to Vietnam. During is time in Australia, the Applicant first separated from, and then divorced, his former wife. The Applicant now expresses the concern that if he is repatriated to Vietnam, he may lose contact with his children in Australia.
Also accompanying the pre-hearing submission was an employment reference given under the hand of a [Mr A], the General Manager of [Employer 1]. [Mr A] indicates that the Applicant has been employed by [Employer 1] since 21 July 2020 and is a valued employee who has developed highly specialised skills, such that it would be difficult for [Employer 1] to find a suitable replacement in the prevailing Australian labour market.
Oral Evidence before the Tribunal:
The Applicant gave evidence via a Vietnamese language interpreter on 27 June 2023. During that evidence, the Applicant informed the Tribunal as follows:
·The Applicant was born and raised as a Catholic in Vietnam as part of a rural farming family. The Applicant has [specified family members]. Although his father is now deceased, his mother and other siblings all remain living in Vietnam.
·Although originally born in Ha Tinh, the Applicant and his family migrated further south when the Applicant was still a very young child. The family settled near Vung Tao.
·The Applicant was married in Vietnam in 2000, when aged about [age]. The Applicant took up farming in his own right and had a small holding of approximately 4 hectares. The Applicant and his (now former) wife had [number] children. The eldest is [age], followed by [another] aged [age], and another [child], now aged [age]. Each of the children are in Australia, and are now young adults. The Applicant and his wife separated in 2016 and he has no contact with her. Meanwhile, [number] children live with him, and [another] lives very close by. The Applicant sees all of his children, and very regularly.
·Although the employment reference from [Mr A] at [Employer 1] says that he only commenced his employment on 21 July 2020, in fact the Applicant has worked at [Employer 1] for many years prior to that. However prior to 21 July 2020, the Applicant was only a casual employee.
·When asked by the Tribunal as to why the Applicant had felt the need to leave Vietnam, he responded by stating that “there is a lot of suppression in Vietnam, with respect to human rights”, and that “in Vietnam people have no voice whatsoever, unlike [the situation] here in Australia”, and that “there was no future in Vietnam for my children, so I made the decision [in 2013] to come to Australia”.
·The Applicant was asked whether his Catholic faith had given rise to any problems for him in Vietnam. He denied that this had ever caused him any difficulties.
·The Applicant was asked to elaborate about the acquisition of his land by the Vietnamese authorities. The Applicant indicated that this had occurred in about 2006 - 2008. The Applicant did not reside on his farmland, and instead travelled out to the plot each day from his home in the township in order to work the land. In the period nominated, the local authorities had seized the Applicant’s land, together with the land of many other villagers, in order to give it to a large corporation for [a development]. Nobody was paid any compensation. The Applicant, together with other aggrieved villagers, protested the situation, yet their protests were only met by enforcement action by the army. The Applicant says that he was forced off his land, and had been assaulted and roughly handled by officers, on a number of occasions.
·Because the Applicant no longer had any land to farm, he and his wife were compelled to look for an alternative means to provide for their family, so they started a [service 1] business.
·The Applicant was asked by the Tribunal about his claim that the authorities continued to cause trouble for his [service 1] business, whereupon the Applicant clarified that initially, even after he and his wife had commenced their [service 1] business, the Applicant had continued to participate in local protests about the forced acquisition of farming land. The difficulties faced by the Applicant at around that time related to his on-going participation in those land acquisition protests, rather than to the operation of his [service 1] business. Eventually, people gave up protesting about the acquisition of their land, with the Applicant stating that he stopped bothering to protest after about the first 12 months.
·The Applicant informed the Tribunal that he operated his [service 1] business right up until the point of departure for Australia. The Applicant considers that their [service 1] business was quite successful, and he was making a reasonable living; although there were intense rivalries with other family members, borne of their resentment and jealousy of the Applicant’s comparative success. This was particularly emanating from one brother-in-law, who was competing for the same clientele. From time to time, this led to arguments, and fighting. The Applicant was physically threatened by his brother-in-law.
·The Applicant was asked to elaborate regarding the precise circumstances and fears that had resulted in his decision to depart Vietnam. The Applicant informed the Tribunal that his decision was one that had crystallised over a period of time, and was a decision made because of “constant harassment” from Government officials, as well as concern for the need to find a better future for his children. Business rivalries with his family had also been a contributing factor to the decision.
·The Applicant was asked whether he was a ‘politically active’ person and whether he had ever protested against the Vietnamese government: either when in Vietnam, or in Australia, including by means of social media. The Applicant denied that he is politically active in Australia and indicated that he is not active on social media. The Applicant has attended numerous Vietnamese cultural and community events in Australia as an ordinary member of the local Vietnamese community for reasons of social conviviality, but that is all. The only protesting that the Applicant participated in when still in Vietnam was that which occurred in relation to the compulsory acquisition of his farming land, more than fifteen years ago now. The Applicant told the Tribunal that this protestation persisted for about 12 months, before it petered out altogether.
·The Applicant did not elaborate on claims that he had concerns about the unintentional disclosure of his information as part of a data breach on a Departmental website. Similarly, the Applicant did not elaborate on his claims that he fears he would be killed if he were now to be repatriated to Vietnam.
·The Applicant was asked to again elaborate on the basis for his claims that the Authorities in Vietnam had continued to harass his parents and siblings in Vietnam, after his departure from Vietnam. Other than to repeat those claims, the Applicant did not provide any further detail, yet made clear he believes that the Vietnamese authorities were seeking information from his family regarding his whereabouts.
·The Applicant was asked to try and encapsulate the essence of his concerns about returning to Vietnam. In response, the Applicant told the Tribunal that he was very sure that he would be imprisoned in Vietnam because of his illegal departure from Vietnam “I fear I will be arrested and prosecuted, and incarcerated, because I left illegally”. The Applicant expressed the view that the government of Vietnam regards those who leave without permission to be traitors.
Relevant Country Information:
The Applicant’s concerns regarding a compulsory repatriation to Vietnam arise principally in relation to his expressed concerns that, once back in Vietnam, he will be categorised by the authorities as a “failed asylum seeker, who departed Vietnam unlawfully”.
The Vietnam Country Information report prepared by DFAT contains the following information on that issue:
TREATMENT OF RETURNEES
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
5.26      Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
5.27      Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases, different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.
5.28      Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.
Conditions for returnees
5.29      Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30      In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31      DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32      Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33      Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34      Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35      DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.
[Emphasis not in the original, yet now included here, by the Tribunal]
Consideration of the Applicant’s Protection Claims:

At the outset, the Tribunal records that it is satisfied regarding the identity of the Applicant, and is satisfied that the Applicant is a citizen of Vietnam. Vietnam is the “receiving country” for the purposes of this assessment.
The Tribunal is further satisfied that the Applicant does not have the right to reside in any third country, other than either Australia or Vietnam.
The Tribunal acknowledges the Applicant’s concerns that if he were to be repatriated to Vietnam he might lose contact with his children. Yet, the Tribunal notes that this is not a specific ground enlivening protection rights under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act. Further in this regard, the Tribunal notes that the Applicant has a close and supportive relationship with each of his children and there is no basis to think that this will not continue to be the case, in the event that the Applicant is repatriated. Each of the Applicant’s children are now adults, such that each of them may choose to visit the Applicant in Vietnam, or at some other location. In a similar vein, the Tribunal notes the employment reference from [Mr A] at [Employer 1] and accepts that the Applicant is both hardworking and is a reliable and important employee. These however are also not grounds for protection under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act.
In terms of factual claims, the Tribunal now accepts the following factual matters:
-That the Applicant is Catholic.
-That the Applicant’s land was confiscated by government authorities at some time between 2006 and 2008, and the Applicant received no compensation. The 21 June 2017 DFAT Country Information report on Vietnam, reports: ”all land is formerly owned by the government, which issues land use rights to individuals or organisations, but retains the right to acquire the land for a broad range of purposes at any time. Disputes over land use rights can lead to protests and occasional violence”. This information is amply consistent with what has transpired in the Applicant’s case.
-That the Applicant and his former wife operated a relatively successful [service 1] business in Vietnam, and there was an intense business rivalry with other family members in the same line of business, borne of jealousy of the applicant’s relative success [in this business].
-That the Applicant wished to have a better life for himself and his children in Australia, and that his primary concern was to provide a better future of his [children].
-That on 12 March 2014 the Applicant was notified that some of his personal details were briefly made public on a departmental website. Disclosed information included details about the Applicant’s name, date of birth, gender, details about his detention (when, reason and where). These details did not include any details about protection-related information.
-That the Applicant fears he will be ‘looked down upon’ in Vietnam, if he returns.
As a matter of evidence, the Tribunal is not satisfied regarding the claim that other members of his family in Vietnam continued to receive visits and threats from the authorities, that are specifically referable to the Applicant. These claims are vague, and generalised, and are generally lacking in credibility. In the Tribunal’s assessment this aspect of the claim is an embellishment, included in an effort to improve the Applicant’s prospects of obtaining protection in Australia.
Refugee criteria assessment – s.36(2)(a):
Claims relating to being a Catholic
The applicant has expressly indicated that he makes no claims for protection on the basis of his Catholicism.
Claims relating to land dispute
The Tribunal accepts that the Applicant’s farming land was compulsorily/forcibly taken from him by the Vietnamese government, and that he received no compensation. That this could happen is entirely possible, and is also lawful, under Vietnamese law,
The DFAT Country Information report on Vietnam (11 January 2022) contains the following information on the issue of government land acquisition in Vietnam:
3.65 Protests about land and its compulsory acquisition occur occasionally. All land in Vietnam is formally owned by the state, which issues usage rights to individuals or organisations. The state retains the right to reacquire the land and land owners allege low levels of compensation, which sometimes leads to protests. A recent prominent example was the January 2020 Dong Tam commune incident in which three police officers and a civilian were killed. The Dong Tam commune protests had been occurring for some years; protesters’ trials concluded in 2020 with some protesters receiving the death penalty and others life in prison for charges that related to the deaths of several police officers. Social media commentary on the issue later led to arrests of, and prison terms for, those commenting, demonstrating the sensitivity of the issue.
During the giving of his evidence before the Tribunal, the Applicant had stated that ongoing harassment from the authorities after the point where he had commenced his [service 1] business was referrable to his on-going participation in protests about the land acquisition did not relate to the [service 1] business, per se. Tribunal concludes that the applicant did not face ongoing targeting and harassment by the government after the cessation of his participation in protests about the land acquisition. The applicant continued to operate his [service 1] business right up until his departure from Vietnam in 2013. The fact that the applicant was able to do this does not suggest that the applicant was of any adverse interest to the Vietnamese authorities. The tribunal concludes that there is not any real chance of the applicant facing serious harm if returned to Vietnam now, due to his land having been deviously resumed by the Vietnamese government, back in 2006 – 2008.
Claims relating to business rivalry
The Tribunal accepts that the applicant was involved in arguments and fights with his brother-in-law over business matters. This claim does not satisfy any of the refugee protection reasons defined by s.5J(1), and hence will be further considered by the Tribunal as part of its complimentary protection criteria assessment.
Claims relating to being a failed asylum seeker who departed illegally
In light of the country information - as excerpted above in these reasons for decision - the tribunal is not satisfied that the Applicant faces any real chance of harm on the basis of his having departed from Vietnam illegally, or because of his now been categorised as a person who unsuccessfully sought asylum in Australia. Although the tribunal acknowledges some country information suggesting that some failed asylum seekers returning to Vietnam are detained and physically harmed by the Vietnamese authorities this country information refers to individuals who have been involved in pro-democracy or human rights activism, or who are members of specific ethnic minorities. The applicant does not fit either of those profiles and the tribunal concludes that he is likely to be categorised as an ordinary returnee who departed Vietnam illegally in order to seek out better economic prospects overseas. At most, the tribunal assesses that the applicant may be at risk of being subject to a fine upon return, or his being briefly detained and interviewed for leaving Vietnam without a passport or equivalent or departing without undergoing official exit procedures; or his being interviewed for the purposes of obtaining information in relation to people smuggling investigations. On the evidence before the tribunal there is no suggestion that the applicant would be considered to be a people smuggler and is only likely to be regarded as a victim of people smuggling operations. These matters are insufficient to give rise to grounds for protection as a refugee under section 36(2)(a) of the Act.
Claims relating to the Departmental data breach
The Applicant was in immigration detention in Australia on 31 January 2014 and as such is personal information may have been made unintentionally available for access on a departmental website extent of dissemination of data is speculative the less there is a chance that the applicant’s personal particulars are now known to the Vietnamese authorities. In light of the country information excerpted above and because of the Applicant lacking any specific profile of interest to the Vietnamese authorities the tribunal is not prepared to conclude that even if Vietnamese authorities did have access to the Applicant’s personal particulars as inadvertently posted on a departmental website that the Applicant would be likely to be targeted as a suspected participant in anti-government activity if he were to be repatriated to Vietnam. Accordingly, the Tribunal finds that there is not a real chance of the Applicant facing serious harm in Vietnam due to the fact of the data breach.
Concerns about being ‘looked down upon’ in Vietnam
The Tribunal accepts there may be an aspect of social stigma in Vietnam, attaching to the prospect of the Applicant being repatriated as an unsuccessful asylum seeker. In the Tribunal’s consideration this however does not amount to ‘persecution’ for purposes of s.5J(1), and nor is it enough to amount to ‘significant harm’ for purposes of s.36(2A).
Cumulative consideration
As well as considering each of the Applicant’s claims individually, the Tribunal has also considered these on a cumulative basis. Even when assessed cumulatively, the Tribunal is of the same view and is not satisfied that if the Applicant were to be returned to Vietnam he would face any real chance of persecution.
For the reasons now given above, the Tribunal is not satisfied that the Applicant is a ‘refugee’ as defined in s.5H(1) of the Act, such as to be a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complimentary protection criteria assessment - s.36(2)(aa)
Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal now turns to consider the alternative criterion, arising under s.36(2)(aa).
The Applicant expressly disavowed the suggestion that he had ever faced any risk or threat in Vietnam in consequence of his being a Catholic. The Tribunal is therefore not satisfied that there is any real risk of the Applicant facing significant harm in Vietnam because of his Catholicism.
Similarly, the Tribunal is not satisfied that in consequence of the data breach there is now any real risk to the Applicant of exposure to significant harm in Vietnam.
In relation to the notion of his being now categorised in Vietnam as a “failed asylum seeker who departed illegally”, the DFAT Country Information previously referenced in these reasons for decision (above), does not, in the Tribunal’s view, now support the contention that in consequence of any such categorisation the Applicant would now be at real risk of significant harm. In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), the majority of the full court in the Federal Court equated the ‘real risk’ test the purposes of s.36(2)(aa) as being the substantial equivalent of the ‘real chance’ test in s.36(2)(a). The Tribunal has already indicated that there is not any real chance of the Applicant facing persecution in Vietnam for this reason.
As one aspect of his claim for protection, the Applicant has referred to intense rivalry and disputation within his family arising out of their business operations as [business rivals], in market competition with one another. As part of that, the Applicant made reference in particular to physical confrontations between himself and his brother-in-law and threats of harm from his brother-in-law.
However, there is no sufficient evidence before the Tribunal to indicate that this inter-familial conflict gives rise to any harm to be sufficient to be significant harm as defined by s.36(2A) as becomes necessary in order to be able to inure protection rights under s.36(2)(aa). Even if any future threats from the Applicant’s brother-in-law (which the Tribunal considers now very unlikely, given the effluxion of time) were ever sufficient to amount to “significant harm” for purposes of s.36(2A), then s.36(2B)(a) & s.36(2B)(b) come into operation, and the Tribunal considers that it would be reasonably necessary in those circumstances for the Applicant to consider either re-locating to another part of Vietnam, or to seek the assistance of the Vietnamese authorities in relation to any further threats directed towards him from other family members. As such any future similar threats from the Applicant’s brother-in-law, if these do in fact eventuate, are taken not to amount to ‘significant harm’ for purposes of s.36(2)(aa).
Accordingly, it follows that the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has any protection obligations under s.36(2)(aa).
There is no suggestion that the Applicant satisfies s.36(2) on the basis of his being a ‘member of the same family unit’ as another person who already satisfies either of s.36(2)(a) or s.36(2)(aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy any of the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the Applicant a protection visa.
Andrew McLean Williams
Member

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

[2023] AATA 2532

30 June 2023

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Immigration

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