1907928 (Refugee)

1907928 (Refugee) [2024] AATA 4355 (26 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mark Edward Northam (MARN: 1175508)
CASE NUMBER: 1907928

COUNTRY OF REFERENCE: Vietnam
MEMBER:Michael Simmons
DATE:26 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 August 2024 at 11:06am
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – Catholic protests – physical assault – detention – protection money – passport renewal in Australia – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Vietnam, applied for the visa on 27 October 2016.
The applicant appeared before the Tribunal on 14 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm in were he to return to Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed .
Non-disclosure certificate
The applicant and his representative were advised of the existence of a non-disclosure certificate covering a Document Examination Report in the course of the hearing. That report assesses documents submitted by the applicant at the interview on 23 August 2017, including arrest warrants, summonses and an injury certificate. During the hearing, the representative expressed concern about the document examination report and noted that if the Tribunal is to place significant weight to the findings of that report they should be afforded the opportunity to respond to it. I noted this is the same report which was the subject of an invitation to comment sent by the delegate on 25 February 2019 and which is referenced in the delegate’s decision.
On 17 June 2024 I wrote to the applicant’s lawyer to provide him with a copy of the certificate issued by the Department of Home Affairs under s.438. I disclosed the summary of findings of the report which found that while there is some support that the assessed documents were not completed when they purport to have been completed, due to the quality of the security of the documents there is limited ability to determine whether they are legitimate documents. I explained that I had formed the view that this certificate was valid, and invited submissions on this matter and on the exercise of the discretion in s.438 by 5 July 2024. No response has been provided to date.
I am satisfied that the certificate is valid. I have exercised my discretion to disclose to the applicant the summary of the findings made in the report, but I have decided not to release the report in full having regard to the public interest reasons set out in the certificate.
I have had regard to the report and the documents its assess in my decision. Notably, the report states that there is limited ability to determine the authenticity of the assessed documents. Moreover, as set out below the applicant has provided vague and shifting details in respect of the claims which this supporting documentation seeks to corroborate, such as when and where he was hospitalised and when he was subject to summonses. In this context, even on the most favourable reading, I consider the injury certificate, arrest warrants, and summonses provide little support in establishing the applicant’s claims for protection.
Identity and background
The applicant claims he is a citizen of Vietnam. He provided a copy of his Vietnamese passport obtained in Australia in 2021, along with earlier passports and an identity card issued to him in Vietnam. These documents supports his claimed identity. He also provided a copy of the passport he used to enter Australia which he identifies as a ‘false passport’ containing another person’s identity. Other than the purported false passport, the applicant has provided a consistent account of his claimed identity in various dealings with the Tribunal and the Department. This identity is supported by a number of documents issued with the Vietnamese authorities. I am prepared to accept that the applicant is who he claims to be, and that he is a national of Vietnam. Vietnam is the receiving country for the purpose of this assessment.
Protection claims
Visa application form 24 October 2016
The applicant asserts he left Vietnam because he was involved in demonstrations and anti-government activities. The authorities ‘depressed’ [sic] Catholics in [District 1]. He is not a Catholic but took part in those activities to protest against the authorities.
In 2011 the applicant was beaten by plain clothes police, suffering a [specified injury] for which he was hospitalised in Hanoi. After that he started to arrange to get a false document so he could escape to Australia.
He did not try to move to another part of Vietnam because his personal information was known to the authorities. The authorities would have found him through his family if he had moved.
If he returns to Vietnam he would be stopped at the airport by the police who would beat him and force him to pay about $25,000USD, as his brother had to on his return. He believes his life will be at risk, and he will be detained and arrested.
The authorities will not protect him. If he is in police custody, they will not be able to protect him. His [brother] was taken into police custody on return to Vietnam they kept him for an extended period before they alerted his family. While in police custody, the applicant is afraid of harm from the police. He cannot go to any other area of Vietnam to be safe because the police will follow him.
If he returns his wife and family will be subject to mistreatment from the police because of the applicant.
Applicant statement with translation dated 6 May 2017
The applicant’s claim from his statement may be summarised as follows.
His family had [a specified] business. They had to travel to different regions to collect goods. In March 2011 he went on [a specified route] to [Town 1] in [District 2], around 20km from [a landmark]. He was assessing [product 1] crops. On the way home he passed through [District 1] where he stopped for a drink.
After a while he heard shouting and noises and saw people rushing past. He followed the crowd, and rode his motorbike into a small road in [Village 1] for over 1 km. He heard cries for help, shouting, noisy voices, and the sound of weapons, sticks, and rocks. He saw police and Catholics fighting. On the Catholic side, there were less than 100 people approximately, including women, youths, middle aged and a few elderly people. Many people were arrested and taken away. Some Catholics were bleeding and crying. There were injured police also.
Around 30 metres from where he stood people in civilian clothes were grabbing a female wearing a dark blue shirt. She was handcuffed and held by a man while another man grabbed her hair and hit her in the face and stomach. The applicant intervened and pushed the men away and helped her to her feet and offered to take her to hospital. None of the other bystanders would help him. He asked the men why they beat this woman and called them cruel, and then they started beating him. The applicant was handcuffed and taken to a police station at which point he realised the men in civilian clothes who hit him and arrested him were police officers. He was arrested for opposing and obstructing people in the course of their legal duties and protecting and helping disorderly gangs. He was referred to as a dangerous offender who resisted the government and spreading propaganda to destroy the Communist party.
The following morning he was released with assistance from his parents, after signing a statement saying the police treated him well. He was told that he will be monitored by local police in his area for the next six months, and that he cannot leave his district voluntarily. After returning home he was summonsed to the local police station to clarify his offence. He had to wait almost 90 minutes. The officers told him what he was accused of, and he explained that he was simply passing through the village at the time of the unrest. The police decided as it was his first offence they would only impose an administrative fine but that he will be under supervision cannot leave the local area without reporting. His parents paid the fine.
Two days later he resumed work as it was the beginning of the crop season so everyone was busy. He continued purchasing goods and still had to go to the upper regions to buy products like [product 1]. At that time he would buy from farmers and bring back a load of [product 1] every 2-3 days, transporting them in small trucks 5-6 tons. He had to go to [Town 1] township in [District 2] and had to go past [District 1] many times.
One day at about 9 AM he was approaching [District 1] and saw a large crowd of people with the verbal slogan [sic]: “protest against the government for preventing the priest and the congregation from holding their services. Oppose the prohibition on building churches”. The demonstration was heading along the route the applicant has to pass through. As the road was narrow and the crowd dense, traffic was jammed and the applicant’s vehicle could not pass through the group of demonstrators. He drove behind them. After a while he saw police approach from both directions. They came to stop the demonstrators and confiscate the banners. The applicant was stopped and arrested then taken to a police station. There he was asked to present his ID and make a report on the demonstration. He was told that less than 3 months ago he was detained for offending against the government and opposing people who were carrying out the law. Now that he was caught again participating in a demonstration, so the police decided to detain him to investigate the case. His family were informed his arrest and came the next morning to bring the evidence to prove that he was only buying [product 1]. The police disagreed and said because he was present when the events took places at both times they had to detain him temporarily. His parents were able to secure his release the next day by paying a bribe and he went home.
One day in February 20 (?) [sic] the applicant received a summons indicating he had participated in rioting and reactionary activities against the Vietnamese Communist Party. He went to the police station the next day. The police accused him of taking part in a riot in [a named] Village, and asked if he had any witnesses who could establish he was not there. The applicant got angry with the police, told them he was not at the riot and that they had no proof of this. They let him leave. After that, whenever there was a riot the police would call him and interrogate him. This happened in April 2012 and August 2012. As a result, people thought the applicant was a traitor and avoided him. His studies were impacted and he struggled to find work.
In August 2012 he registered a business selling [product 2]. He had issues obtaining a business permit for allegedly being involved in "reactionary and opposing the communist party" cases. His permit was issued in September 2012 with the condition that every month he would have to pay them a bribe which he did. Initially the business was operating normally but after one month a group of strangers- youths who appeared drunk -came demanding money. He refused and they became aggressive, smashing up the shop. The applicant called the police but they took an hour to arrive. They took statements and looked for evidence, then the applicant fixed the shop and rearranged everything in order to continue with business. A few days later he was approached and remained that he had to pay a bribe if he wanted to operate the business.
Over a week later, in the evening, a group of youths broke into the applicant’s home and beat him up. He was hit on the right side of the head with a stick and [suffered a further injury]. The applicant woke to find himself in hospital in Vinh. The [injury] [required] surgery. Over 3 weeks later he was discharged. However, the [injury] did not heal and he returned to hospital in Ha Noi, [a named] hospital where he had further surgery.
From then on he did not dare to open the shop and just helped his parents in their business. In January 2013, he and his wife and celebrated their wedding and it was also the Tet. After this, they re-opened the shop. [In] January 2013 two men came to the counter and accused the applicant of running a business without a permit. They asked for a bribe. The applicant got angry and refused to pay them, and they left. That night at 1 AM the applicant heard loud noises on the roof and outside. He guessed that someone was throwing stones on to the roof and smashing things outside the shop front. He called the police but they did not come until the next morning. They did not help him so he decided to submit an appeal to the court. After he submitted this appeal, he was again summoned to the police station and accused of participating in demonstrations and riots. On this occasion the police officers beat him up as they were angry that he had submitted the court appeal. Then they let him go.
A week later the applicant travelled to Ha Noi to rest for a month. In Ha Noi he found a company which specialised in helping people study overseas or to go abroad. He discussed with his wife and they decided he should leave the country. The company charged him $[amount] USD to arrange everything. He gave them his passport and paid a deposit. [In] May 2013 they told him he had been granted an Australian student visa and would leave the country [in] June 2013 from [a named] airport. On 3 June 2013 he went to the travel company to pay the outstanding money and receive his document, and there they showed him that his passport and visa were not in his name, which surprised him. He was told not to worry and that the company would help him to exit the country.
The applicant came to Australia and began studying at [a named universtoy] in July 2013. Three months later his wife told him that the government had learned he was overseas, so they continued to summon his and make life difficult for his family. After six month he quit his studies and worked on a farm to earn money to send his family. Then in January 2016 he moved back to Sydney to work in a [business 1]. The applicant was worried he may be deported back to Vietnam to persecution and so applied for a protection visa in October 2016 while in [a] Detention Centre.
Statement from the applicant addressed to his solicitor dated 6 June 2024
The applicant restated some of the details from his earlier statement. Relevantly, he described an incident in March 2011, 2-3km from [District 1], where he witnessed parishioners being attacked by the police. He claims he was beaten and then arrested after intervening to assist a woman. The next incident he mentions was in February 2012 when he received a summons, which also happened again in April and August 2012.
He then states:
The other annoyance occurred when I was asleep at night there had been a gang of young persons covered by facial mask came to break my house, they beat me up by stick in the head and [inflicted another injury], hit me in the back and buttocks and legs caused me loss of consciousness until recovered I saw I was in the Hospital [identified] in Vinh City.
He mentioned that he was married in January 2013, and that he had a shop and police officers demanded bribes from him.
He describes another incident in which rocks were thrown onto the roof of his house, and his shop signage was broken.
The applicant claims he travelled to Ha Noi in February 2013 and began making arrangements to travel to Australia. His student visa was issued [in] May 2013 and he came to Australia [in] June 2013.

After arriving in Australia his wife’s family told him that he was still receiving summons letters.
He fears being arrested and tortured if he is returned to Vietnam.
Submissions to the Tribunal dated 11 June 2024
The written submissions raise a claim in respect of the applicant’s future conduct. It is contended that “Given his intimate knowledge of police persecution, the applicant is in a unique position to expose these corrupt and illegal practices should he be returned to Vietnam.”
I asked the applicant whether, on return to Vietnam, he would seek to expose corruption. He replied “no”. Given his clear oral evidence expressing no intention to engage in this conduct in this future, I do not accept that the applicant would seek to expose government corruption in Vietnam in the reasonably foreseeable future. I have not explored this claim further in my assessment.
The submissions also assert that:
the persecution he would face as a victim of police corruption would stretch across the entire country The reach of the Vietnamese People’s Public Security spans the country, which would leave the applicant with essentially no safe place to move or relocate to in Vietnam.
Tribunal hearing 14 June 2024
In terms of material details disclosed in his oral evidence, at the outset of the hearing the applicant indicated that his wife and parents have stopped communicating with him because they do not want to face harassment from the authorities because of him anymore.
He also told me during his oral evidence that he considers if he were to go to Ha Noi he would be ok, but that if he returns to his hometown he will be in trouble.
When discussing his decision to renew his passport with the Vietnamese authorities in Australia, the applicant indicated that he does not fear all of the Vietnamese authorities, he does not fear the Vietnamese authorities abroad, and that he only fears the local authorities in his town.
Supporting documents
In seeking to provide direct corroboration of his claims, the applicant has submitted arrest warrants, summonses and an injury certificate to the delegate. Following the Tribunal hearing he provided a business registration certificate relating to the business he claims to have operated. He has also provided letters from his parents and friends which comment on some of his claims for protection. The applicant has also submitted information that comments on the general situation in Vietnam This includes country information and media reports on political and religious freedoms, torture and abuse, and reporting on the repression of Catholics in [District 1]. I have had regard to this material in my assessment.
Consideration
I discussed the applicant’s past experiences and future fears with him during the hearing. In its entirety, I did not consider his evidence to be persuasive or reliable. His account of his past experiences in Vietnam is afflicted by variation and inconsistency. When invited to comment on various discrepancies between his oral and written evidence, the applicant often struggled to provide a cogent response which addressed the concerns being put to him. I note that the applicant has had the benefit of the same lawyer assisting him in preparing his visa application, attending the interview with the Delegate, attending the Tribunal hearing and in preparing submissions to the Tribunal. The applicant was afforded the opportunity to provide further written submissions after the hearing to respond to the various concerns that were raised by the Tribunal but chose not to do so.
During the hearing the applicant told me that the first incident happened when he went to buy [product 1] near the [landmark] in 2012. He confirmed a number of times that it was in 2012, and stated he thinks it was in March 2012. I put to him that his written statement and some of the supporting documents he has submitted indicates that it was actually in March 2011. He said he made a mistake and he thinks it was March 2011.
His evidence was that in March 2011 he went by motorbike to buy goods. He travelled to [District 2] and on the way home he encountered problems in [District 1]. I asked him why he told the delegate repeatedly that this incident where he was caught up in the protest and assisted the lady occurred in Do Luong, and not [District 1]. I explained that this is set out in the delegate’s decision record which he submitted to the Tribunal. I noted I had listened to a recording of the delegate’s interview and that I am satisfied that the evidence he gave in that interview is accurately reflected in the delegate’s decision record. He replied, “I think when I talked about the incident I was quite anxious and I made a mistake and I meant to say [District 1]”.
When I asked why he became involved in the protest the applicant indicated he was misunderstood and that he stopped for a drink then heard the commotion. He confirmed that the reason he intervened was to assist the lady being attacked. I asked him if he took part in the protest to support the cause of the protesters or oppose the government, and he replied no. I put to him that his visa application form states that he was involved in demonstrations and anti-government activities, and that he took part in those activities to protest against the authorities. The applicant asserted that he did not take part in the protest and he was mistaken for a protestor. I explained to him that was not what was written on his visa application form, and the accompanying form 80, both of which he prepared with his lawyer. When I pointed out this was inconsistency and invited him to comment, he repeatedly asserted he did not take part in the protests.
I asked the applicant discussed the next incident which occurred on one of his trips to collect produce. He went via [District 1] and there was another Catholic protest. That protest created traffic on the road. He told me that he cannot remember when this was but he thinks it was in 2012. He indicated that this incident was less than one year after the first incident in [District 1]. He told me on this occasion he was also travelling by motorbike. I asked him why, if he was in a motorbike, he could not drive around the congestion and he indicated it was too chaotic and he had to wait. I asked how often he was collecting loads of [product 1] at this time, and he replied once per week. I noted that this was not what he wrote in his statement, where he stated he was “bringing back a load of [product 1] every 2-3 days, transporting them in small trucks 5-6 tons”. He said that he meant whenever he went to collect produce each time he would hire a small truck and he would use the motorbike to gradually collect things then put them in the truck. I put to him that his statement clearly says he was in a vehicle and that there is no mention of him going by motorbike on that occasion. I explained that I was reading from the NAATI accredited translation of the written statement he had provided. He repeated that on during the second incident he was riding a motorbike.
Relevantly, the 6 June 2024 statement makes no mention at all of the applicant being caught up in a Catholic protest in [District 1] on a second occasion and being detained as a result.
Moreover, the 6 May 2017 statement asserts that the after he was arrested at the second protest the police noted that less than 3 months earlier he had been detained in at the first protest. This timeframe is different to that set out in the applicant’s oral evidence. He told me thinks the second incident was some time in 2012, less than one year after the March 2011 protest. That would put the elapsed time between the two protests at around 9 months, not less than 3 months.
The applicant told me he was hospitalised only one time, and that this occurred in 2012. He explained when he started running his [product 2] shop he refused to pay protection money to the local authorities. A few days later people came to the shop and slashed him on the [injury], he thinks they were from an underground gang. He had to go to Vinh hospital. He confirmed that he was only hospitalised in relation to this [injury], though after he was released had to return to hospital for further treatment. I explained that what he wrote in his visa application form was different, where he stated: “In 2011 I was beaten by plainclothes police and I suffered a [specified injury] for which I was hospitalised”. He also wrote that he was hospitalised in Ha Noi after this beating. He replied that he went to Ha Noi hospital because his injury got infected. I put to him that the year, the injury, the hospital and the perpetrator where all different when comparing his oral and written evidence.
I also noted he provided an injury certificate which has different details. That certificate is from [another named] Hospital and was issued [in] February 2017. It states he was admitted [between dates in] October 2012 [and] November 2012 with [specified] pain and swelling, due to [an injury] caused by chopping. I reiterated that the visa application states he was beaten and hospitalised in 2011, but the injury certificate indicates that this occurred in late 2012. He replied that he was beaten in 2011 but not hospitalised, which I put to him is contrary to what he wrote in his application. He replied that the time that he was admitted to the hospital was after he opened the shop and was beaten for not paying bribes in 2012.
Asked when he decided to leave Vietnam, the applicant indicated it was a few months after his marriage in 2013. I put to him that the visa application form states that after he was beaten in in 2011 he “started to arrange to get a false document so [he] could escape to Australia”. The applicant’s 6 May 2017 statement and his oral evidence both claim he only came to know about the false passport being prepared for him a few days before he left Vietnam. He suggested that all the problems started in 2011 but he did not start making any arrangements to leave until 2013 because he had a relationship and got married in 2013. I put to him that in any event, he told me he only found out about the fake passport in 2013 shortly before coming to Australia and did not suggest that he intended to obtain one from 2011 as is written in the visa application. He stated “that is not possible, I don’t remember”. He also indicated that his brother had obtained a false passport to come to Australia before him, because he had been to [Country 1] to work and his passport was confiscated after his visa expired. His brother came to Australia but was caught without a visa and went back home after the applicant arrived her..
The applicant indicated he had never travelled outside of Vietnam before coming to Australia in 2016, and that he had never applied for a visa to any other country. However, I noted that he obtained Vietnamese passports in his own name in 2007 and 2012. He stated that he planned to travel but never got around to it because he decided to stay in Vietnam to help his parents. He told me that he had no issues obtaining his passport in February 2012, despite claiming he was of interest to the authorities and subject to harassment including repeated summonses at this time.
The applicant also obtained a new Vietnamese passport in Australia in 2020. He told me that his other passport had expired and that he needed a form of identity. However, he also confirmed that he was not planning to travel and that he holds other forms of identity. I asked him why, if he fears he may be harmed by the Vietnamese authorities, would he renew his passport with them. He responded that he only fears the authorities in Vietnam itself and not the Vietnamese authorities overseas. He also stated that he only fears that local authorities specifically in his hometown, and not all of the Vietnamese authorities.
I noted that despite his claim to have fled Vietnam fearing for his safety, the applicant waited almost three years after coming to Australia to apply for a protection visa. He told me that this was because when he first arrived in Australia he did not understand legal system or refugee status. I noted, as did the delegate, that the applicant was able to locate and secure a variety of different jobs across many different locations in Australia during his first few years here. I put to him that he likely did not understand the Australian employment system prior to his arrival, but it appeared he was quickly able to familiarise himself with it, and given this asked why he could not have inquired into his options to remain in Australia lawfully sooner. He suggested that he did not think when he came to Australia he would be applying for a refugee visa. He decided to apply for this visa when he was in immigration detention after being located without a visa. At that time he thought about going back to Vietnam, but his friends advised him to apply for a protection visa to stay. He stated that he was initially hesitant but then decided to follow his friends advice. If he feared harmed in Vietnam as claimed, I asked him why he needed such encouragement to apply for a protection visa. He said that his friends were worried about the danger he may face.
Towards the end of the hearing I put to the applicant that as it stands I have real difficulties accepting that he has had any problems in Vietnam, noting his evidence was riddled with inconsistencies as had been explained to him. In addition, both obtaining a passport in Australia from the Vietnamese authorities and waiting almost three years after coming to Australia to apply for protection were not in my view indicative of him sincerely fearing harm from the Vietnamese authorities were he required to return to Vietnam.
The applicant confirmed that he had told me everything that he wanted me to know in relation to his assessment. The representative indicated he intended to provide written submission following the hearing addressing the concerns raised, however, to date this has not occurred. He did provide business registration documents in support of the applicant’s claims to have run a business before leaving Vietnam.
I do not accept that the applicant was involved in any protests or demonstrations while in Vietnam, either intentionally or inadvertently. He offered quite different and unpersuasive accounts of where, when, how and why he came to be implicated in protests by Catholics against the Vietnam authorities such that I reject these various narratives in their entirety. The details he provided in relation to his claimed hospitalisation for not paying protection money while running his business were similarly afflicted by considerable variation when comparing details in his written evidence with his oral evidence and as a result I am not satisfied he was ever injured by the Vietnamese authorities or required to pay protection money to them. Moreover, the quite varied and shifting nature of the applicant’s evidence on these past incidents causes me to doubt the credibility of his evidence generally. I have had regard to the supporting documentation provided in relation to the applicant’s claimed past experiences, including the injury certificate, summonses, arrest warrants, business registration material, and statements from relatives and acquaintances. They offer little support in addressing the various concerns I have with the applicant’s evidence, and some of this material conflicts with the applicant’s oral testimony.
Furthermore, the applicant has variously suggested that he started making plans to come to Australia by arranging a fake passport in 2011, and that he was surprised to learn in 2013 just before he left the country that a fake passport had been arranged for him. Information before the Tribunal supports the contention that the applicant entered Australia under an assumed identity including a passport issue in a different name. However, I don’t accept that this supports a conclusion that he was of adverse interest to the Vietnamese authorities when he left the country, given the two irreconcilable narratives he has provide in relation to the fake passport. The shifting and inconsistent details he has provided on this subject further supports a conclusion that his evidence is not reliable.
The applicant obtained a Vietnamese passport from the Vietnamese authorities while in Australia. He also waited three years to apply for protection after arriving in Australia and told me that he was hesitant to do so and only decided to on the encouragement of friends after he was placed in immigration detention. I consider this conduct supports a conclusion that the applicant does not sincerely fear being harmed in the future in Vietnam by the authorities for any reason in the foreseeable future. It is not suggestive to me of him having previously been harmed or threatened while in Vietnam or being fearful of such treatment on returned in the foreseeable future.
As set out above, I have serious doubts as to the reliability of the applicant’s evidence. I am not prepared to accept his bare contentions that he himself be fined or mistreated for leaving Vietnam on a fake passport. He has offered not corroborative material to support his contention that his brother was previously fined and mistreated on return to Vietnam for leaving that country on a passport that did not reflect his identity, or that he himself could face such treatment in the future. Furthermore, the applicant obtained a new Vietnamese passport while in Australia. He also remained in Australia unlawfully for an extended period before applying for a protection visa, and only decided to apply for that visa on encouragement from friends. The applicant informed the Tribunal that he did not believe he would have any problem with the Vietnamese authorities at all were he to return to Ha Noi, suggesting that his problem was only with the local authorities in his village. I consider his conduct while in Australia and assertion that he could return to Ha Noi without incident, does not suggest he fears any mistreatment in Vietnam in the reasonably foreseeable future for departing that country on a passport that did not reflect his actual identity. On the available information, I do not accept that he faces a real chance of serious harm in the reasonably foreseeable future in Vietnam owing to the circumstances of his departure from that country.
On the totality of the material before me I do not accept that the applicant was ever of any adverse interest to the Vietnamese authorities for any reason when he resided in Vietnam. I reject the applicant’s claimed past instances of harm and future fears of harm in their entirety. Nor am I satisfied that he has become so far any reason since departing that country. I do not accept that he or his family have ever been threatened, harassed and harmed by the Vietnamese authorities for any reason. I do not accept that he would be of any adverse interest to the Vietnamese authorities for any reason in the reasonably foreseeable future were he to return to Vietnam.
I am not satisfied the applicant faces a real chance of serious harm in the reasonably foreseeable future for any reason were he to return to Vietnam. The applicant does not have a well-founded fear of persecution for any s.5J(1)(a) reason. The applicant is not a refugee per s.5H.
A ‘real risk’ and ‘real chance’ involve the same standard.[1] For the reasons set out above the applicant also does not face a real risk of any harm including treatment amounting to significant harm in Vietnam. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
[1] MIAC v SZQRB (2013) 210 FCR 505.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Simmons
Member

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

[2024] AATA 4355

26 August 2024

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