1920552 (Refugee) - [2020] AATA 2142

1920552 (Refugee) [2020] AATA 2142 (12 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1920552
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Dr Colin Huntly
DATE:12 May 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 May 2020 at 10:50am
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – religion – Catholic – imputed political opinion – opposition to the government – environmental activism – pro-life activist – failed asylum seeker – unlawful departure – protests against mistreatment of Catholic leaders – choice of oath or affirmation – violent police interrogation – illegal departure – decision under review affirmed
LEGISLATION
AAT Act 1975, s 33
Migration Act 1958, ss 5(1), 5AAA, 5H, 36, 45, 65, 91, 104, 423, 425
Migration Regulations 1994, r 2.08; Schedule 2
Tribunals Amalgamation Act 2015, s 420
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Lay Lat (2006) 151 FCR 214
MIMIA v SCAR (2003) 128 FCR 553
MIMIA v SGLB (2004) 207 ALR 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Prasad v MIEA (1985) 6 FCR 155
Stoyanov v INS (9th Cir 1999) 172 F3d 731
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZBEL v MIMIA (2006) 228 CLR 152
SZLGP v MIC [2008] FCA 1198
SZQKO v MIAC [2011] FMCA 821
SZROK v MIAC [2012] FMCA 1043
SZSHV v MIBP [2014] FCA 253
SZTAL v Minister for Immigration [2016] FCAFC 69
WAKK v MIMIA [2005] FCAFC 225
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 30 June 2014 and the delegate refused to grant the visa on 1 May 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994 (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
IDENTITY
The applicant provided a copy of his available Vietnamese identity documentation to the Department with his application for protection. There is no reason to doubt the validity of these documents. I have also had the opportunity to interview the applicant on six occasions.
Based on the information before me, I find that the applicant is a citizen of Vietnam, which is also the receiving country for the purposes of the refugee and complementary protection assessments.
DECISION SUMMARY
The applicant is a Vietnamese man from [Village 1], Quynh Lu’u District, Nghe An Province, Vietnam. The applicant is married to a woman from the same village. Like the majority of the people in this village, they are life-long devotees of the Catholic religion. Together, they have [specified biological and adopted children]. The applicant’s two daughters live and work in Hanoi; one works in [a] section of a [firm] and the other [works] at a [business 1]. His eldest son is [a] student at university in [another city]. He entered Australia unlawfully [in] April 2013 on vessel [numbered]. As mentioned above, the applicant applied for a protection visa on 30 June 2014.
The delegate refused to grant the visa on a number of grounds. Firstly, the delegate found that the applicant did not experience persecution from agents of harm associated with, or connected to, the Vietnamese state for the essential or significant reason of his actual or imputed religious beliefs or activities. This finding was based on the prevalence of Catholicism in Vietnam and its institutional acceptance by the Vietnamese state. It was also based on findings that none of the applicant’s faith-based activities would have been such as to attract the adverse attention of the Vietnamese authorities.
Second, the delegate did not accept that the applicant held a well-founded fear of persecution in Vietnam for the essential and significant reason of his personal data being unlawfully accessed due to a data breach affecting the databases of the Department in February 2014.
Third, the delegate found that the applicant did not hold a well-founded fear of persecution in Vietnam for the essential and significant reason of his unlawful departure from Vietnam in 2013.
The threshold for the assessment of a real risk of significant harm to an applicant in a receiving country under the complementary protection obligations at s.36(2)(aa) of the Act is the same as that which applies under the assessment of a real chance of serious harm to an applicant under the Convention at s.36(2)(a). Given this, and the delegate’s findings relating to the credibility of the applicant’s core claims and country information, the delegate refused the 30 June 2014 application for a protection visa lodged by the applicant.
After reviewing this application for protection, I have concluded, based on my own assessment, that the decision should be affirmed.
In particular I find, below, that the applicant’s claims to have been a target of persecution in Vietnam for the essential and significant reason of his actual or perceived religious beliefs or activities lack credibility in key respects. This is due to a combination of his unsatisfactory evidence about the key events in question and the inconsistency of important aspects of his evidence with credible country information.
I note in passing that the applicant was not a satisfactory witness in a number of important respects. Bearing in mind that he was self-represented throughout my review, I have referred to these aspects of his evidence and conduct where relevant to this decision. I have consciously refrained from drawing any adverse inference from the applicant’s unsatisfactory conduct during these proceedings when making my findings about the facts on which this decision has been made. However, his tendency to embellishment has informed the weight I have given to his evidence relating to his central claims for protection.
WHY WAS THIS APPLICATION CONSTITUTED TO THIS TRIBUNAL?
This application was returned to the Tribunal for determination following a decision of His Honour [name deleted] of the Federal Circuit Court of Australia, dated [in] June 2019.[1]
[1] [Source deleted].
The origins of the present application for review are helpfully summarised in the following passage of judgement of the Court:
62. Turning to the Amended Proposed Judicial Review Application, the background and applicant’s claims are as follows:
a) the applicant, a citizen of Vietnam, arrived in Australia in April 2013 as an irregular maritime arrival, and lodged a Protection Visa application on 30 June 2014;
b) the applicant claimed to fear harm as a result of his religion, political opinion, illegal departure, the data breach and return to Vietnam as a failed asylum seeker;
c)the applicant specifically claimed that:
i.on 1 July 2012 a Catholic priest and two nuns were attacked and assaulted in an incident involving Vietnamese police officers and some gangsters;
ii.[later in] July 2012 the applicant organised a protest in his village against what happened to the priest and nuns on 1 July 2012, and along with [number] other Catholics drove [buses] to the church in the place where the attack against the priest and nuns occurred;
iii.police officers stopped the buses, searched them, and confiscated the applicant’s [property], as well as recording the names and addresses of all those on the bus, and requesting them to return home, but as all of the protesters resisted this, the police let them go to the church;
iv.[later in] July 2012 the applicant received a summons asking him to attend the police station. The applicant was arrested, detained for [number] days and beaten;
v.[between dates in] July 2012 [and] August 2012 the applicant received a summons every week and was harassed, intimidated and monitored by the police;
vi.[in] August 2012 the applicant received a summons to attend the police station but failed to attend;
vii.[later in] August 2012 the applicant attended the police station as a result of a further summons and was beaten;
viii.in early 2013 the applicant attended the police station late after being issued with a summons and was again beaten;
ix.in early 2013 the applicant organised a second protest; and
x.since the applicant’s departure from Vietnam his family have been harassed and his father had died suddenly;
d)on 1 May 2015 the Delegate refused the grant of the Protection Visa. The Delegate found that as a result of legislative changes, the Protection Visa application had been converted into an application for a Temporary Protection (Class XD) visa;
e)the applicant lodged an application for review by the Tribunal on 7 May 2015; and
f)on 10 July 2015 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.
[In] June 2019, [the judge] determined that a writ of certiorari issue, quashing the 10 July 2015 decision of the Tribunal in the first instance. His Honour further issued a writ of mandamus, requiring the Tribunal to re-hear the application for review made by the applicant on 7 May 2015. Accordingly, this matter was freshly constituted to the Tribunal as presently constituted.
WHAT IS THE BACKGROUND OF THIS APPLICATION?
Tribunal hearings
Following the Federal Circuit Court Orders of [the judge], made [in] June 2019, the applicant appeared before the Tribunal in person to give evidence and present arguments at three hearings held over six dates. All hearings were held using the services of interpreters fluent in both English and the Vietnamese language.
The applicant’s first hearing with the Tribunal as presently constituted was on 8 October 2019, to establish the fresh review.
A second hearing scheduled for 29 October 2019 was adjourned after there was an issue with the swearing in of the applicant (discussed separately below) and a subsequent request for recusal by the interpreter on professional grounds.
According to the interpreter, he had prior personal knowledge of the applicant, and the interpreter expressed the view that this could affect his professional impartiality as an interpreter. The applicant was invited to make submissions on this point and expressed satisfaction with the interpreter continuing. It is uncommon for an interpreter to request their recusal from a professional engagement with the Tribunal. Given the high professional standards demonstrated by the interpreter in question over many engagements, significant weight was placed on his own judgement about how this engagement might proceed. Accordingly, the request was granted, without drawing any adverse inference about the request relating to either the applicant or the interpreter.
The second hearing was resumed, briefly, on 7 November 2019, before being adjourned once again due to interpreter difficulties. The second hearing was resumed (and completed) on 20 November 2019.
A third hearing was held with the applicant on 28 November 2019. This hearing was adjourned before being resumed and completed on 16 December 2019.
The applicant was not represented in this application by a registered migration agent, although he had been so represented during his initial application. All Tribunal hearings were held with the assistance of an interpreter fluent in the Vietnamese and English languages.
DECISION MAKING FRAMEWORK
President’s Directions
I have had regard to President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018; in particular:
· That ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[2]
· That: ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[3]
[2]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
[3]At [8.1].
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of an applicant’s credibility. In this context, I am guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[4] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[4]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[5] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[6] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[5](1996) 40 ALD 445.
[6]At 482.
I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[7] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[8]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.
[7](1996) 185 CLR 259.
[8]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is a decision maker required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, or are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[9] Nevertheless, as Burchett J counselled,[10] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[9][1997] FCA 1198.
[10]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[11]
[11]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[12] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[13]
[12]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.
[13]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[14] This is sometimes referred to as the ‘what if I am wrong’ consideration. I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[15]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[14]MIMA v Rajalingam (1999) 93 FCR 220.
[15](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. In this respect, in Iyer[16] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned), supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[17] I recognise that such a principal cannot be relied upon as an iron rule. However, it is a potentially useful illustration of the kind of weighing process that an objective decision maker must make when making findings relevant to the existence of a well-founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
[16]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].
[17]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
In this respect, I keep in mind the salutary dicta of Flick J,[18] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31 In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[18]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[19]
… Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
[19]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b), to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, I note that, later in the same judgement,[20] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9^th Circuit Court of Appeals decision in Stoyanov v INS[21] (Stoyanov) (emphasis as per the Court):
The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’:
[20]CQG15 v MIBP [2016] FCAFC 146 at [43].
[21](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.
I note also, that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court noted in CQG15 v MIBP [2016] FCAFC 146 at [59]-[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
How credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[22]
32   First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33   Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’: S20/2002 at [49]; and Chen at [35].
34   Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[22]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provide:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[23]
[23]At [8].
And:
In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements at section 423A of the Act.[24]
[24]At [13].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[25]
[25]At [17]-[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[26]
New claims and evidence
[26]At [27]-[28].
Applicants are required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
This principle is enshrined at s.5AAA of the Act, which clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, a Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[27]
[27]Prasad v MIEA (1985) 6 FCR 155 at 169-70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ), 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant:
i.The ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; and
ii.Section 423A of the Act requires a Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.
In such cases, if a Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, a Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence.
In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[28]
COVID-19-related claims
[28]At [9].
It is acknowledged that the international public health crisis arising from the current COVID- 19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Vietnam generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.[29]
[29]SZTAL v Minister for Immigration [2016] FCAFC 69.
Capacity, oaths and affirmations
Capacity considerations
I note that, in the absence of any contrary information, the Tribunal is entitled to proceed on the basis that an applicant is legally ‘competent’ to participate in a hearing when proceeding with a hearing or the taking of evidence.[30] I also note that the Tribunal is required to proceed expeditiously, with a minimum of formality and according to substantial justice and the merits of the case and is not bound by the rules of evidence which may apply in court or other tribunal proceedings.[31]
[30]MIMIA v SGLB (2004) 207 ALR 12 at [1], [45] (‘The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the Tribunal must be convinced before an applicant can take part or continue to take part in proceedings before the Tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead.’ Per Gleeson CJ). Followed in SZGZH v MIMIA [2006] FMCA 1761 at [42]. See also SZCBB v MIMIA [2006] FMCA 210 at [14].
[31]Section 420, as amended by the Tribunals Amalgamation Act 2015 (Cth) (Amalgamation Act); and s.33 of the AAT Act 1975.
However, s.425 of the Act does impose an objective requirement on the Tribunal to provide an applicant with a ‘real and meaningful invitation’ to appear before the Tribunal to give evidence and present arguments.[32] Having made this point, I am mindful that the Full Federal Court in MIMIA v SCAR found that given the findings of fact made by the primary judge, the visa applicant was not in a fit state to represent himself before the Tribunal. In that case, it was clear that the invitation the applicant received under s.425 was not a meaningful one.[33] This was so, even though the Tribunal was unaware of the applicant’s condition, the matter only being raised for the first time before the primary judge. This question does not appear to arise in the present application.
[32]MIMIA v SCAR (2003) 128 FCR 553. In Saha v MIAC [2010] FMCA 715, the applicant argued the Tribunal failed to provide a meaningful hearing because he had misunderstood the meaning of ‘de facto’ when he was giving evidence and the Court held even if that were so it would not be enough to establish jurisdictional error. In SZQEH v MIAC [2012] FCA 127 the Court found no error where medical evidence about the applicant’s fitness to participate in the hearing was considered by the Tribunal and the evidence before the Court indicated the applicant was able to respond appropriately to questions and discuss issues raised with him during the hearing at [28]. See also SZQLY v MIAC [2012] FMCA 113 where the Court found no error where the applicant was represented and no suggestion was made by the applicant or his adviser that he was in some way disabled from presenting his case at [38]. See also Gjonej v MIBP [2015] FCA 159 at [17].
[33]MIMIA v SCAR (2003) 128 FCR 553 at [41].
In order to be satisfied that a proper hearing under s.425 is being provided, the Tribunal is required to make its own assessment of the applicant’s ability to participate in a hearing.[34]
[34]SZSRL v MIBP [2013] FCCA 2206 at [12]. See also AYU15 v MIBP (No 2) [2016] FCCA 2309 at [20] where the Court held that at the very least, a ‘real and meaningful’ opportunity to participate in a hearing would require the applicant to be able to understand the questions asked of him or her, to understand words and sentences spoken by the Tribunal, and to be able to communicate answers by the construction and uttering of meaningful sentences.
Accordingly, I have considered the likelihood of any impairment to the applicant’s capacity to participate in the hearings.[35] I note that in SZQKO v MIAC,[36] the Court concluded there was no error where the Tribunal asked the applicant how he was feeling and whether he understood the questions put to him. In that case, in the view of the Court, the Tribunal plainly understood and considered the applicant’s claims and evidence relating to his medical condition and was alert to the impact of the medical condition on the hearing. The Court found it was open for the Tribunal to conclude the applicant was not taking any medication which affected his memory or capacity to participate meaningfully in the hearing.
[35]In SZOVP v MIAC (No 2) [2011] FMCA 442 the Court found there was no error with the Tribunal determining that the applicant was capable of participating in a second hearing. The Court held the Tribunal was aware the applicant was mentally ill and that it had available to it medical evidence which, coupled with its own questioning of the applicant, enabled it to form a view that she was capable of giving evidence and presenting arguments notwithstanding her schizophrenia. Appeal dismissed: SZOVP v MIAC [2012] FCA 244.
[36]SZQKO v MIAC [2011] FMCA 821. See also SZQLS v MAIC [2012] FMCA 624 at [14].
The standard of fitness required before a person can participate in a hearing is not defined by the legislation. Fitness, in the relevant sense, must be assessed having regard to the particular circumstances of each case including the intended purpose of the hearing and the support and assistance available to the applicant.[37]
[37]NAMJ v MIMIA [2003] FCA 983 at [58]. See also SZMSA v MIAC [2009] FMCA 716 at [83] upheld on appeal in SZMSA v MIAC [2010] FCA 345.
I accept that it is not uncommon for applicants appearing before the Tribunal to be stressed or to claim to be suffering from psychological disorders or psychiatric illnesses, or to submit evidence of such conditions. However, the fact that a person may suffer some measure of psychological stress or disorder does not necessarily mean that a hearing cannot proceed.[38]
Formalities as to oaths and affirmations
[38]NAMJ v MIMIA [2003] FCA 983 at [52]. In SZODR v MIAC [2010] FMCA 402 at [42], the Court stated that a hearing opportunity does not cease to be real and meaningful simply because an applicant suffers stress or confusion on account of a disability. The Court noted that the Tribunal can, if necessary, provide an adjournment and take that condition into account when making its decision. This decision was upheld on appeal in SZODR v MIAC [2010] FCA 1362.
The Tribunal has an express power to take evidence under oath or affirmation.[39]
[39]Section 427(1)(a).

I note that the Evidence Act 1995 (Cth) (the Evidence Act) provides that a ‘witness in a proceeding must either take an oath, or make an affirmation, before giving evidence’. Further, ‘an affirmation has the same effect for all purposes as an oath.’[40] The Evidence Act provides that a witness ‘may choose whether to take an oath or make an affirmation.’ However, before this, the Tribunal must ‘inform the person that he or she has this choice.’[41]
Can an applicant be questioned about their choice of oath or affirmation?
[40]At s.21.
[41]At s.23.
It is not controversial that the potential consequences for misstatements made in connection with oaths and affirmations vary, depending on the precise circumstances of the misstatement. I note that, in relevant circumstances, it is open to a fact-finder to question an applicant about their personal choice of oath or affirmation. This is particularly the case where a reasonable inference might be raised about the subjective reasons of a witness for making an affirmation.[42]
[42]R v VN [2006] VSCA 111 at [97]-[108] per Redlich JA for the Court.
This principle was considered in the context of the equivalent provisions in the Evidence Act 1958 (Vic) in the 2006 Victorian Court of Appeal decision in R v VN:[43]
[105]The questions asked by the prosecutor called upon the applicant to state the ground of his objection to taking the oath, which witnesses prior to 1984 were required to do. The prosecutor then challenged the applicant’s explanation. In my view the cross-examination did not contravene the statutory provision. Although there is no longer a requirement for a witness to state grounds for their objection to taking an oath, cross-examining counsel is not precluded from asking why a witness objects to taking the oath. Such an inquiry is not in contravention of the statute. Such an inquiry does not involve any suggestion that evidence on affirmation is in some way inferior to evidence on oath. It is an inquiry as to the subjective reasons of a witness for making an affirmation.
[106]Plainly, the fact that a witness has taken an oath or made an affirmation does not render the witness immune from cross-examination which suggests that the witness is not giving truthful evidence. Ever since Queen’s Case it has been accepted that after a witness has taken the oath the witness may thereafter be asked whether the witness considers the oath to be binding upon their conscience. The witness may be asked whether they recognise the responsibility that is associated with either having taken an oath or made an affirmation. It may be suggested to the witness that the witness does not regard the taking of the oath or the making of an affirmation as binding upon their conscience.
[43]Ibid at [105]-[106].
How a person chooses to give their evidence before the Tribunal, whether by an oath or an affirmation, may, in certain circumstances, be a relevant matter to consider when assessing the credibility of that person’s claims.
In SZROK v MIAC,[44] the Court held than an applicant’s decision to take an affirmation instead of an oath assumed evidentiary significance where the credibility of the applicant’s claim to have undergone a recent conversion to Christianity was central to the Tribunal’s consideration. In the particular circumstances of that case, the applicant’s decision to not make an oath was held to assume evidentiary significance.[45] However, there may be circumstances where it is not appropriate for a person to take an oath or make an affirmation, such as where the person is a minor or otherwise lacks the cognitive capacity to understand the nature of the oath or affirmation.
[44]SZROK v MIAC [2012] FMCA 1043 at [28].
[45]Id.
Why was the applicant not a satisfactory witness?
The applicant’s core claims relate to his religious devotion
According to the statement of claims attached to the applicant’s original application for protection, the applicant stated that he had a well-founded fear of harm from the Vietnamese authorities in that country for the essential and significant reason that he is ‘an active [Catholic] Christian who organised a protest in support of the Catholics.’
The applicant claims that the persecution he fears in Vietnam arises from his particular expression of his religious devotion. This core claim for protection is repeated in the first summary point of the delegate’s decision record at Part 8 and is exemplified by the final summary point as follows:[46]
He fears harm by the Vietnamese authorities as an active member of the Catholic faith who organised protest(s) in support of the Catholics. He left the country unlawfully and applied for asylum in a foreign country and would also suffer punishment/harm for this reason.
The applicant took the oath at the first hearing and elected to affirm at the second hearing.
[46]At (5).
At the first hearing with the Tribunal, following the swearing in of the interpreter, the applicant elected to take the oath and did so by swearing on a copy of the Holy Bible. He additionally kissed the scriptures and made a number of gestures that one might characterise as being of a Catholic devotional nature.
Following the taking of the oath in the approved format, the applicant then stated his intention of praying before proceedings commenced. I reminded the applicant that the hearing room was not a place of worship and invited him to be seated. The applicant declined and elected to remain standing.
After reading to the applicant from the delegate’s summary of his claims for protection as listed in the record of decision, I asked the applicant if this was a fair and accurate summary of his claims for protection. He answered in the affirmative. I asked the applicant if he had anything he wished to add to his claims for protection and he referred to recent information he had received from his home village and his family in Vietnam which he believed was supportive of his claims for protection.
Following these preliminaries, I enquired of the applicant if he was well. He responded in the affirmative. I proceeded to take a personal and professional history from the applicant. He answered my questions directly and without demonstrating any particular cognitive deficits.
At the outset of the second hearing on 29 October 2019, the applicant elected to take the affirmation in the approved format. He did so without further complication or ceremonial.
I asked the applicant why it was that he had elected to take the affirmation on this occasion, having elected to take the oath at the first occasion. In response, the applicant then indicated that he was mindful of the command of Christ not to swear oaths.[47]
[47]The clear inference made at the hearing by the applicant was that he sought to rely on Matthew 5:33-36; ‘Again, ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths: But I say unto you, Swear not at all; neither by heaven; for it is God's throne: Nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black.’
I indicated to the applicant that, while I was familiar with the injunction to which he referred, I was asking why he had elected to follow it at the second hearing after having ignored it at the first hearing. The applicant indicated that he was nervous at the first hearing. I pointed out to the applicant that he was given a choice of oath or affirmation at the first hearing, and that he had chosen to swear an oath. The applicant acknowledged this.
I asked the applicant when he first became aware of the injunction of Christ not to swear oaths. He responded that he acquired this knowledge a long time ago. I suggested to the applicant that his conduct in this regard was confusing and contradictory. He stated that he cannot take an oath on the Holy Bible. I again pointed out to the applicant that this was what he had, in fact, done at the previous hearing.
The applicant suggested that each previous time he had disobeyed Christ’s injunction (to which he now referred) he had been remorseful. I pointed out to the applicant that this suggested that he had knowingly taken an oath under false pretences. I put it to the applicant that this contradiction on his part reflected poorly on his credibility and character. The applicant indicated that this was his mistake.
As put to the applicant directly at the second hearing, while the principled objection of individuals of faith to the taking of oaths is known to the law, such a scenario as emerged at the second hearing with this applicant must be rare in the experience of courts and tribunals. The applicant’s contradictory behaviour when taking an oath at the commencement of formal tribunal proceedings, and later resiling from such conduct, must be viewed in light of the fact that this applicant’s core claims relate to his purported religious devotion. Voluntarily electing to take an oath at the first opportunity, while knowing that this was contrary to the teachings of the founder of his religion raises serious questions about the underlying credibility of his core claims for protection. This conduct of the applicant is not that of a satisfactory witness. Indeed, it calls into question the evidence presented by the applicant in the course of this application for a protection visa about the basic sincerity of the applicant’s faith-based claims for protection.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act, persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)) and systematic and discriminatory conduct (s.91R(1)(c)).
Section 91R(2) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
WHAT ARE THE APPLICANT’S CURRENT CLAIMS?
Personal circumstances
As mentioned above, the applicant claims to have been born and lived all of his life in [Village 1 in] Quynh Lu’u District, Nghe An Province, Vietnam. The applicant’s parents operated a [business] making [specified] products. Following his national service, the applicant worked for his parents on the farm, also producing [other products].
The applicant married a woman from the same village. Like the majority of the people in this village, they are life-long devotees of the Catholic religion. Together, they have [specified biological and adopted children]. The two daughters live and work in Hanoi; one works in [a] section of a [firm] and the other [works] at a [business 1]. [One son] is a student at university in [another city]. The remaining biological and adopted [children] live in [Village 1] with the applicant’s wife and are school-aged students. The applicant’s wife supports them by running a [market] stall in a village approximately [distance] inland from [Village 1].[48]
[48]Cf para [6] above.
The applicant developed and operated a successful [services and products] business in Vietnam prior to departing for Australia. The assets of this business remain in Vietnam.
The applicant was an active member of his local Catholic parish, serving [on specified] committees between 2008 and 2013. He also participated in anti-abortion campaigns and protests. Members of his own family and that of his wife have experienced official sanctions in Vietnam for their protest activities, some of which appear to have been religiously motivated.
Departure from Vietnam
On the advice of a distant cousin, the applicant arranged to leave Vietnam illegally using the services of people-smugglers. He left [Village 1] and travelled to Vinh City where he made contact with the smugglers. They told him to travel to Saigon (Ho Chi Minh), which the applicant did by bus.
From Saigon, the applicant found his way onto a small, ocean-going vessel, which, for a significant fee, eventually delivered him to [Australia] [in] April 2013.
Claims before the Tribunal
First hearing
Prior to the first hearing, the applicant sought a postponement in order to obtain representation before the Tribunal. This request was not granted on the basis that the applicant had not provided any evidence that he had approached a migration agent for this purpose. It was further noted that no mention of this intention on the part of the applicant was made to his case officer and that the applicant had not taken any steps to secure representation following the Federal Circuit Court remittal.

The applicant was encouraged to seek and obtain representation immediately if that was his intention. Subsequently, the applicant did not appoint a representative in connection with this review application.
An initial hearing before the Tribunal as presently constituted was held on 8 October 2019. At this hearing, I handed the applicant a copy of the delegate’s record of decision dated 1 May 2015, which refused the applicant’s application for a temporary protection visa. Pursuant to s.424AA of the Act, I advised him that:
In conducting the review, I am required by the Act to invite you to comment on or respond to certain information which would, if it is accepted, be the reason, or a part of the reason, for affirming the decision under review.
The particulars of the information are:
•         Information and
•         Country Information analysis and
•         Findings of fact made by the Delegate
That are contained in the decision of the delegate that you have applied to this Tribunal for review.
This information is relevant to the review because it identifies the reasons why you were refused a protection visa at the first instance, after considering your application within the context of the same legal framework that is binding on this Tribunal.
If I rely on any or all of this information in making my decision, I may affirm the decision of the Delegate and find that you should not be granted a protection visa in Australia.
You are invited to give comments on or respond to the above information either in person at the next hearing, or in writing before the next hearing with the Tribunal.
I do not require you to respond to this information at this time. Indeed, I intend to conclude today’s hearing shortly, after some further preliminaries so that you have time to think about this information before making a response.
After this, I went through with the applicant how his claims for protection were summarised by the delegate in that document at item 8 and the delegate’s survey of country information at item 9 of the decision. I note that, while more detailed, the delegate’s summary conforms with the summary of [the judge] quoted above. I asked the applicant if the delegate’s summary was a fair and accurate summary of his claims for protection. He answered ‘Yes’.

100. I explained to the applicant what documents the Tribunal had in its possession, including the original Department file relating to his application for protection, the Tribunal’s file prior to the Federal Circuit Court remittal back to the Tribunal and the current Tribunal file. I asked the applicant if there was any information in these documents that he needed to change. He answered ‘No’.
101. I asked the applicant if there was any information that he wanted to add to his claims for protection. He indicated that he wished to submit a number of new photographs and other images in addition to information received from his priest in Vietnam. I advised the applicant that documents needed to be submitted before hearings so that they could be considered at a subsequent hearing.
102. I asked the applicant if his family in Vietnam experienced harm in that country since he departed. He indicated that the Government did not know about his departure from that country until the data breach. He suggested that it was only after this occurred that his family started to be harassed by the authorities in Vietnam. The applicant stated that a young brother of the applicant’s wife had been arrested in Vietnam since 2016 following a protest. He also stated that rocks were thrown on the roof of his wife’s house, her [kiosk] at the market was vandalised, and that this harm was caused by the community and authorities. This has been due to incidents that happened in 2016.
103. The applicant then indicated that he was happy for me to proceed to consider his claim based on his evidence and the documents that I had in my possession.
104. I asked the applicant if he was well. He replied that he was well and in good health. I confirmed the applicant’s former place of residence in Vietnam. He advised that he had lived there throughout his life in Vietnam and that his wife and younger children still live there, while his wife now runs a market stall in another village.
105. The applicant’s two daughters live and work in Hanoi, one as a [business 1 worker] and the other in the administration of a [firm]. He has [other specified children]. [One son] is studying at university in [another city] and the other [children are] school aged students and living with his wife.[49]
[49]Cf paras [6] and [91] above.
106. Following his national service, the applicant worked in his parents’ [business], which included making [specified products]. Prior to leaving Vietnam, he operated a successful [business], selling [products]. The applicant produced a number of photographs of this business, which he described as being very successful financially. The applicant’s evidence suggests he retains an interest in this business since departing Vietnam and that sale of [products] from his [business] still provides some form of income for his family in Vietnam. The applicant’s evidence in this respect, while lacking in detail, does appear to be based in fact.[50]
[50]Cf para [92] above.
107. He stated that he is a committed Catholic Christian, having served in voluntary roles with the local parish for many years, including [on specified committees] for a time.
108. I asked why this was relevant to the applicant’s claims for protection. The applicant suggested that his [Relative A] had been targeted for holding views similar to those of the applicant. I pointed out to the applicant that, even if his [Relative A] had been the subject of adverse official treatment in Vietnam, this did not necessarily imply any connection with the applicant’s own claims for protection.
Post hearing submissions
109. Prior to the second hearing, on 12 October 2019, the applicant submitted the materials that he attempted to hand up during the first hearing. This was by way of an email to the registry. This comprised:
a)A written statement by the applicant dated 20 September 2019 (provided in Vietnamese and with a translation attached);
b)An undated hand-written statement by the parish priest [Father A], located at the bottom of the applicant’s signed statement; and,
c)Documents and five photographs relevant to the applicant’s signed statement of 20 September 2019. The photographs relate to the applicant’s [Relative A] in Vietnam.

Second hearing - multiple adjournments
110. As noted above, at the outset of the commencement of the second hearing, the applicant elected to make an affirmation, leading to my seeking clarification about why he had chosen to do this, having previously elected to take the oath.
111. Following this discussion, the interpreter sought to be discharged, on the basis that he did not believe his prior association with the applicant was compatible with his duty to impartially serve as an interpreter in the review. Although the applicant expressed his personal satisfaction with the services being provided by the interpreter to that point, the interpreter’s request was granted and no subsequent inference adverse to either the applicant or the interpreter was drawn.
112. On 7 November 2019, a resumption of the second hearing was attempted, but this hearing again was immediately adjourned due to difficulties with the interpretation.
113. On 20 November 2019, the second hearing was resumed successfully.
114. At this hearing I reviewed the evidence that the applicant had provided to the Tribunal during the course of the present review. I then took the applicant to Part 8 of the delegate’s decision record, which summarised the applicant’s claims for protection.[51] I confirmed with the applicant that he had previously assured me that this was a fair and accurate summary of his written claims for protection as originally made.
[51]At (5).
115. I then took the applicant to the previous decision of the Tribunal relating to his application for protection in which the Tribunal (as then constituted) extracted[52] relevant portions of the applicant’s previous sworn statutory declaration made out on 15 June 2014, identifying the applicant’s claims for protection. This was as follows:
[52]At [25].
WHY I LEFT VIETNAM

5.   As a Catholic I was persecuted by the Vietnamese Communist regime. [In] July 2012, a Catholic [priest] and two of the nuns were attacked assaulted in an incident by the Vietnamese police officers and some gangsters.
6.   [Later in] July 2012, I organised a protest in my village — [Village 1] Diocese against what had happened to the priest and nuns on 1 July 2012. Along with [number] other Catholics we drove onto buses to Con Cuong Church to continue protesting. We are planning to pray for peace between the Catholics and the government and to ask the government to stop harming the Catholics.
7.   On the way, the police officers stopped our buses. They searched the bus and confiscated my [property]. Then recorded everyone’s names and addresses. They requested us to return home. Everyone resisted so the police let us go to the church.
8.   After attending the church I went home. [Later in] July 2013 I received a summons from the police office asking me to attend the district police station. I went there on the given day. I was arrested by the officers on the spot and detained for [number] days. I was physically assaulted by them. They accused me of organising a protest against the government.
9.   I was released from police custody [in] July 2013. After that date I received a summons every week from the police asking me to attend the police station. Their harassments, intimidation and harm continued. They were monitoring me and had restrained my freedom.
10. [In] August 2012 I received another summons to attend the police station but I decided not to attend in fear of being further harmed. [Later in] August 2012 I received another summons and I attended this time. As expected I was beaten at viciously by them again will stop they hit me so hard on my chest that I did. The same day I was released.
11. In early 2013, during the New Year’s time the police sent another summons to me. I did not receive the document in time therefore did not attend at the given time. I arrived late but they bashed me again for attending late. They released me the same evening.
12. Despite the harassments and harm I suffered at the hands of the authorities. I organised a second protest in support of the Catholics a month after my last detention. Again around [number] people attended and we all went to Con Cuong Church to pray and then protest. I can provide a video footage of this protest.
13. I knew the consequences of organising the second protest, I decided to flee Vietnam and live in country where it would not be harmed from my religion and organising a peaceful protest.

116. I took the applicant to his email submission of 12 October 2019, specifically the certified translation provided of his signed statement to the Tribunal, dated 20 September 2019, written by the applicant in the Vietnamese language. The relevant portion of the certified translation of this statement was as follows:
Since the company Formosa Ha Tinh Steel Co. Ltd in Ha Tinh Province ‑Vietnam discharged toxic industrial waste into the sea, causing a catastrophic environmental disaster in the central region of Vietnam, causing a large number of dead fish on the coast, causing serious environmental pollution, affecting jobs in life of my family as well as the parishioners of [Village 1] parish in my hometown in particular and the people of Central-Vietnam in general.
After receiving sympathy and concern from the parish priest, [Father A name variant], our parishes petitioners filed a lawsuit against Formosa Ha Tinh plant with the purpose of requiring Formosa Ha Tinh to provide satisfactory compensation for victims and cleaning of contaminated water is caused by Formosa Ha Tinh.
When [Father A] and parishioners took to the streets to protest and file lawsuit, nay armed police force suppressed them violently with weapons and violence, many people were brutally beaten and injured, and bloodshed, including my [cousin].
After that day, the Nghe An Communist government ordered the police armed mobile forces to besiege my [Village 1] parish to intimidate the people, throw stones at the church-throw stones to destroy people’s properties around the church including my home and my [named Relative A’s] home who is a prisoner of conscience. My wife operated a grocery store downtown [was] also harassed, verbally abused, goods smashed, so my wife had to close the store and could not continue her business there. Because we have to make a living, and support our [age] year old mother, raising a child who is attending university and a young child, my wife now has to go to another market area more than 100 km away from home to earn a living, leaving home at the beginning of the week back on weekends, it was very difficult for my family and my wife and children living in constant fear and anxiety, causing mental distress.
My [Relative A] is a prisoner of conscience, was accused of offences by the communist authorities and arrested and imprisoned on charges of opposing officials performing duties while [he] did nothing wrong, he was just a gentle person, is the [assistant] of the parish priest on that occasion [accompanying a named leader] and parishioners to file a lawsuit against Formosa Ha Tinh plant-Vietnam. When my [Relative A] was in prison, my wife was taking care of [Relative A’s] [daughter], [named] (unfortunately she [passed] away when my [relative] was in prison) to share somewhat the difficult situation in my [Relative A’s] family, so there is an extra burden on our shoulders.
The lawsuits were not brought to trial, revenge were brought about by long prison sentences for protesters and through the disastrous consequences of the discharge, the Formosa plant is still there unwavering in Ky Ahn Ha Tinh.
About myself, since the day I came to Australia I have been detained in an immigration detention centre for six years and six months, so I’m very worried about being returned to Vietnam and being persecuted, beaten and imprisoned by the communist authorities for what I have been involved before. Indeed, before I came to Australia, I was a member of the Society for Life Protection Anti-Abortion and Fetal Collection. I was also involved in many of the parish’s work [on specified committees]. I participated actively in all protest movements against government’s wrongdoings.
On the other hand, I am also very worried about my family, so my health and my spirit suffered, but I still try my best to learn the language, study hard to integrate into the community, keep my good health for Your Honour to consider to allow me staying in Australia.

117. With respect to the applicant’s reference above to the Formosa disaster, I note that this appears to relate to a significant pollution incident that occurred off the coast of Ha Tinh Province in June 2016.[53] I raised with the applicant at the hearing the fact that while this event is a matter of public record, it is not clear how it related to the applicant’s own claims for protection. The applicant’s response was that this was an example of the kind of protest activity with which he would naturally be associated in Vietnam. The applicant also noted that his parish priest and family members are also involved in protests against this environmental disaster. Having considered the applicant’s evidence on this matter and the available country information relating to the toxic spill, while I do not doubt that the applicant would himself have been involved in the protest against this environmental damage had he been physically in Vietnam, there is nothing before me to suggest that the Vietnamese government or agents of the Vietnamese government would object to his personal participation in such protests.
[53]New York Times, ‘Taiwan-Owned Steel Factory Caused Toxic Spill, Vietnam Says’, Richard C. Paddock, June 30, 2016 ( accessed 12 March 2020).
118. Quite apart from these considerations, I note that the applicant did not raise environmental activism as a basis for claiming protection in his application for protection at the first reasonable opportunity. Accordingly, I find that the issues, evidence and claims raised by the applicant relating to environmental activism and his interest in such activism in Vietnam are of late invention. This causes me to doubt the sincerity and credibility with which these claims have been made in the context of the applicant’s claims for protection which are the present subject of this review. Further, I note that quite apart from credibility, these late claims by the applicant are not sufficiently relevant to the applicant’s prior claims for protection to lend any weight to the applicant’s core claims for protection as made throughout this review.
119. I asked the applicant about the photographs he had included relating to his [Relative A], whom (the applicant states) is a prisoner of conscience in Vietnam. The applicant stated that his [Relative A] had travelled to Australia in 2013, applied for protection, and was returned to Vietnam in approximately August 2014. The applicant stated that, on return to Vietnam, his [Relative A] returned to normal life.
120. According to the applicant, his [Relative A] became [an assistant] for the local Catholic priest, [Father A]. The applicant believes that his [Relative A] came to the attention of local authorities and was arrested on false charges, as a result of his [Relative A’s] personal association with [Father A]. In this respect, the applicant directed me to a prosecution notice relating to his [Relative A’s] temporary custody dated [in] November 2017. I pointed out to the applicant that it was difficult to see how this information and the circumstances described related in any way to the personal circumstances of the applicant himself. The applicant’s evidence appears to be to the effect that anyone who is perceived to be an opponent of the official regime in Vietnam is subject to a discriminatory application of the general criminal law.
121. I pointed out to the applicant that it was of some concern that he had not raised either his interest in environmental activism or his concerns relating to the treatment of his [Relative A] in Vietnam prior to 12 October 2019. While I accept that the applicant has expressed somewhat similar concerns about the Vietnamese government’s treatment of dissidents with the Tribunal (as previously constituted) relating to two uncles who had been sentenced to labour camps by the Vietnamese authorities in the 1950s ‑ both of whom died in those camps ‑ the applicant’s claims for protection must be assessed in their own terms.
122. I note that the applicant has not claimed that he personally is, or has been, the subject of adverse treatment by the Vietnamese authorities or by agents associated with the Vietnamese government because of his familial associations. Rather, the applicant appears to be suggesting that his personal religious and political activities have an equivalent actual or imputed profile with Vietnamese authorities (and would be equally perceived by the Vietnamese authorities as being contrary to public policy in that country) to those of certain members of his extended family.
123. Nothing presented by the applicant to the Tribunal (as both previously and presently constituted), either in writing or at the hearings suggests any nexus with the circumstances relating to either the applicant’s uncles in the 1950s or his [Relative A] since the applicant’s departure from Vietnam beyond the simple fact of familial association. Accordingly, I find that the applicant’s late claims and evidence relating to the treatment of his [Relative A] in Vietnam by the Vietnamese state and its agents lack any relevance, and have very little probative weight with respect to the applicant’s own claims for protection.

124. I note the applicant’s stated opposition to abortion and to Vietnamese official family planning laws and their social consequences. I note that this is connected to the applicant’s religious beliefs. I have no reason to doubt the sincerity with which the applicant holds these beliefs. However, I note that the applicant’s reference to this as a potential basis for protection in Australia on the basis of official government discrimination in Vietnam amounting to either serious harm or significant harm is not supported by available country information relating to Vietnam.[54] I further note that there is no mention of the applicant personally in any of the available news media reports relating to pro-life activism in Vietnam.
[54]COISS Vietnam: CI190321155149914, 26 March 2019. Sources referred to in this country information include UNHCR Refworld, The European Country of Origin Information Network (ECOI), US Department of State, government reports, NGO and human rights organisations, local news sources and major international newspapers, and Internet searches.
125. On the basis of the foregoing, I find that the applicant does not hold an objectively well-founded fear of harm in Vietnam now or in the reasonably foreseeable future for the essential and significant reason that he is a member of a particular social group, namely, pro-life activists. I further find, on the basis of available country information that the applicant does not face a real risk of significant harm on return to Vietnam now or in the reasonably foreseeable future from any person for any reason on the basis of his pro-life commitment and or activism.
126. The applicant also gave evidence at the second hearing that he had participated in meetings of his local hamlet opposing the imposition of higher taxes. The applicant claims that he made personal statements at these gatherings in opposition to the local charges which were being imposed. I note that these claims were made for the first time at the second hearing before the Tribunal as presently constituted. I find that, if the applicant genuinely held this matter to be a basis for seeking protection in Australia, it would be reasonable to expect that he would have raised it at the first reasonable opportunity and not wait until 20 November 2019 to raise it for the first time. Accordingly, while I accept that the events described may have occurred, I place very little weight on them as evidence of any kind supporting the applicant’s claims for protection.
127. I took the applicant to his claims relating to two protests he states that he organised against the harassment, intimidation and threat to the Catholic community of Con Cuong, rural Nghe An Province. The harassment, intimidation and threats occurred on 1 July 2012 in response to protests calling for the Catholic place of worship in the district to be officially recognised by the Vietnamese government. This is a matter of record.[55] As is the peaceful, but coordinated, response organised by the Catholic Archdiocese of Vinh on 15 July 2012. I pointed out the findings of the delegate in the record of decision regarding the applicant’s Con Cuong-based claims, which were:[56]
[55]Radio Free Asia, ‘Priests Protest Church Attacks’, 20 July 2012 ( accessed 27 March 2020).
[56]At (11).
After consideration of all the information before me, I do not accept that:
·The applicant organised protests ([in] July 2012 and early 2013) in response to the Con Cuong incident as claimed.
·The applicant was or is of adverse attention (in any capacity, i.e. that he received multiple summonses from the authorities, that he was beaten/detained by authorities as claimed) by Vietnamese authorities because of his claimed role in organising these protests.

128. The applicant’s evidence relating to his association with the Con Cuong protests does appear to have some basis in fact. For example, the applicant has provided what I accept are photographs showing the applicant and members of his immediate family paying respects to what appears to be the same shattered remains of a Catholic religious icon on the same tiled floor as that reported in connection with the 1 July 2012 Con Cuong Church protest violence.[57]
[57]Democratic Voice of Vietnam, ‘Government Continues to Hamper Religious Activities in the Con Cuong Catholic Community, Nghe An Province’, 5 July 2012 (democraticvoicevn.wordpress.com/2012/07/05/government-continues-to-hamper-religious-activities-in-the-con-cuong-catholic-community-nghe-an-province/, accessed 27 March 2020).
129. When I questioned the applicant about his involvement in the 2012 Con Cuong protests, the applicant’s evidence was what might be described as perfunctory and lacking in descriptive detail. The applicant’s contention is that, between [dates in] June 2012, he was unlawfully detained and coercively interrogated at [a specified police station in] Quinh Lu’u after appearing there on summons. He asserts that this detention and coercive interrogation related to his having organised [busloads] of [Village 1] parishioners to visit the scene of the 1 June 2012 Con Cuong violence, on 3 June 2012. The applicant’s evidence relating to his time in detention and the nature of his interrogation was lacking the level of detail and the fluency of expression that might be expected when recounting actual lived events. The applicant does not claim to have had a leading role in the coordinated peaceful Catholic demonstrations of 15 June 2012 but merely that he attended the ‘praying mass’.
130. I accept that the applicant provided the Department with video-footage of what appears to be a relatively small group of people (possibly parishioners) on what could equally be described as a group (possibly Church) outing. There is nothing before the Tribunal to suggest that either this represents protest activity or is even directly connected with the Con Cuong protests. I note, for example, that there are no corroborating statements of persons appearing in the video footage to support the applicant’s underlying assertions about this footage. This is despite the fact that the applicant’s prior evidence was that all of the parishioners present on the buses were questioned by authorities and were required to provide their personal details at the time. Two aspects of this evidence are noteworthy. Firstly, according to the applicant, it was only the applicant who was the subsequent target of summonses and police interrogation. Second, the applicant has been unable, since that time, to obtain any corroborating statement from any of the other parishioners riding on the busses to support the applicant’s evidence. Accordingly, the probative evidence of such material can, at best, be described as equivocal.
131. As stated above, the applicant’s unsatisfactory evidence relating to his claimed treatment at the [specified police station in] Quinh Lu’u between [dates in] June 2012 has previously been discussed by both the delegate in the decision record of 1 May 2015 and by the Tribunal as previously constituted.[58] Despite these consistent prior findings, and my putting to the applicant at the second hearing that his answers appeared to be inconsistent, not congruent with available country information in significant respects and lacking in relevant detail, the only additional information he has provided are in the form of family devotional photographs and a certification in the most general terms about the applicant’s membership of the [Village 1] Catholic parish by the current priest. There are no supporting witness statements, copies of relevant summonses or other independent corroboration of the sort that might reasonably be expected, having been put on notice of these concerns over the previous five years.
[58]AAT Ref: 1506220 at (13)-(17).
132. There appears to be only a single probative corroborating submission supporting any of the applicant’s underlying assertions relating to his core claims. That is his family photographs, which appear to have been taken close in time to the initial protest violence [in] July 2012. Accordingly, it is only reasonably certain that the applicant and his immediate family made a single visit to this location. I note that the applicant claims to have had his [property] confiscated by authorities either on the way to or from the site of the Con Cuong protest-violence. This raises further questions about the credibility of the applicant’s core claims about being the target official harassment, intimidation and threat in Vietnam.
133. I asked the applicant why his immediate and extended family continues to reside in [Village 1], given the official harassment he claims to have experienced there due to his religious beliefs and community activism, given that they too appear to have participated in the same way as the applicant. The applicant stated that his wife had experienced harassment in her market stall (with rocks also being thrown on her house roof) and sells her [products] in another village during the week, only returning on weekends. The grandparents are too old to relocate. The applicant stated that the government would not allow him to live in a household outside of [Village 1] under the registration system. I asked why, if this was the case, his daughters were able to live and work in another city. The applicant did not provide a satisfactory response to this question. Accordingly, I find that the applicant’s family does not experience harassment, intimidation or threat (official or otherwise) in [Village 1] for any reason connected with the applicant’s claims for protection.
Third hearing – adjourned and resumed
134. On 28 November 2019, the applicant attended a third hearing. Immediately prior to this hearing, the applicant once again submitted photographs showing the applicant and members of his immediate family kneeling before the smashed porcelain religious icon referred to above. Three of the submitted photographs relate to the applicant’s [Relative A]. One photograph shows a protest march [against] Formosa Ha Tinh Steel Co. Ltd. Also submitted, and dated 27 November 2019, was a support letter from an Australian Catholic priest. This priest had officiated at Catholic Mass in the detention centre in which the applicant was resident. The letter affirms the applicant’s attendance at, and participation in, religious services at which the priest officiated. The letter also appears to support the applicant as a suitable candidate for Australian citizenship.
135. I asked the applicant why he submitted a letter from his current priest making reference to Australian citizenship. The applicant confirmed that he had told his priest that he was applying for Australian citizenship. When asked the applicant why he would give such an impression to his priest, the applicant suggested that he was communicating with the priest in poor English and with the assistance of one of his fellow Catholic detainees.
136. I am prepared to accept that there may have been miscommunication between the applicant and the priest as to the nature of his application for a visa in Australia. I explained to the applicant that, as the priest’s advocacy statement was issued on the basis that the applicant was applying for citizenship in Australia, I could give it no weight in the context of a protection application.
137. After indicating to the applicant that I was prepared to provide some further time for him to obtain additional supporting documents, the third hearing was adjourned.
Resumption
138. On 16 December 2019, the third hearing with the applicant was resumed and concluded. Prior to this resumed hearing, the applicant submitted documents relating to the educational and professional qualifications of his two adult daughters in Vietnam. These documents are in untranslated Vietnamese language format. Nevertheless, the general nature of the documents is apparent, and the applicant confirmed that these are, indeed professional and educational qualification and experience certifications.
139. I questioned the applicant about the details of his departure from Vietnam. He indicated that, on advice of a distant relative, he left [Village 1] village by bus and travelled to a contact point where he paid a large quantity of Vietnamese Dong to be transported on a small oceangoing vessel. This vessel took him to a larger boat located to the south of Vietnam, where on payment of a large amount of United States dollars, a people-smuggler transported him together with other passengers to [Australia].
140. I note that the applicant did previously hold a Vietnamese passport which was issued in approximately 2007. For this reason, I find that the applicant was aware of the procedures involved in applying for a passport.
141. I asked the applicant why it was that it was so unsafe in Vietnam for him that he had to leave the country unlawfully but that it was safe enough for his family (including his wife and young [children]) to remain in the country. I pointed out to the applicant that, according to the his own evidence including the photographs submitted to the Tribunal, his immediate family including his young [children] were also participants in the relevant protest activity on which the applicant relies as the basis of his well-founded fear of persecution now and for the foreseeable future in Vietnam. The applicant asserted that it was only he who was the target of the official harassment, intimidation and threat. I note that this response is inconsistent with the applicant’s assertions, referred to above, that his wife and [children] in [Village 1] have been harassed for reasons associated with his claims for protection.
142. I pointed out to the applicant that his narrative generally lacked credibility. I noted that, according to the applicant’s own evidence, by Vietnamese standards he was a wealthy businessman. I pointed out to the applicant that he had the means to leave the country lawfully but made no attempt to leave using the lawful means open to him when he previously obtained a Vietnamese passport. I pointed out to the applicant that his immediate family continues to live in Vietnam in the same town.
143. The applicant indicated that his passport was old and that it only became apparent to him suddenly (and the beginning of 2013) that he had to leave because he was being targeted by Vietnamese authorities. The applicant stated that he was unable to leave Vietnam lawfully at this time, because of the adverse attention he was receiving. I pointed out to the applicant that, not only was no attempt made by him to leave the country lawfully prior to 2013, but that he had not attempted to relocate within Vietnam prior to that, including in mid-2012 when he claimed the worst of the official harassment, intimidation and threat had been experienced by him. The applicant repeated his earlier evidence that it is too difficult to relocate within Vietnam because of the household registration system.
144. The applicant suggested that his daughters had, in fact, experienced official persecution in Vietnam since he had departed. In support of this evidence, the applicant indicated that one of his daughters had lost a job in 2018. I asked the applicant why he did not raise this as a concern prior to the third and final hearing with the Tribunal as presently constituted. The applicant indicated that he did not believe that he had been given enough time to explain his circumstances fully. I pointed out to the applicant that his narrative of persecution appeared to be developing as proceedings continued. I put to the applicant that this suggested to me that his narrative was lacking in credibility.
145. The applicant indicated that his second daughter had graduated from [a college], but had not been able to secure a job in a government department after graduation. The applicant suggested that this was due to his claims for protection and his activities in Vietnam prior to his departure in 2013. I pointed out to the applicant that, given the significant time that had elapsed, this suggestion lacked credibility and that any number of factors could account for a new graduate from [a college] not obtaining a particular job with a particular government department.
146. I asked the applicant about his business interests in Vietnam, and particularly about his [business assets]. The applicant suggested that his business interests have been lost to him. The applicant indicated that these [premises] had been visited by thugs since his departure from Vietnam. I pointed out to the applicant that this seemed to indicate that his business interests in Vietnam were a going concern despite his absence from the country. The applicant stated that there was no one to care for his [business assets] and that his family kept the [assets maintained].
147. I asked why his family continued to [maintain] the [business assets] if the business was not continuing to operate as a going concern. The applicant did not give consistent evidence with respect to his business interests in Vietnam. The applicant’s evidence in response to my inquiries was ambiguous, despite close questioning. It may be that the applicant’s family rented land owned by him to other tenants. Alternatively, the applicant may have been suggesting that his family were tenants on land owned by others so that his [premises] could be maintained.
148. The applicant indicated that there had been occasional sales of [products] from the business while he had been out of the country. I pointed out to the applicant that it was not logical to suggest that a person who had fled the country for fear of persecution would continue to maintain business interests in the country (either through renting property from individuals or renting property to individuals), especially if that person had also left dependent members of their immediate family behind in the same country.
149. Overall, the applicant’s consistent evidence appears to be that he was a relatively wealthy businessman in Vietnam with a considerable, durable [asset] that could be sold at significant margins in order to sustain both himself and his immediate family. In this respect, I note that, by the applicant’s own evidence, he has been productively and creatively employed since leaving [his National service]. He has been a strong financial contributor to his local Catholic Church. He has adopted [children] and put his adult daughters through their education to a professional level. [One adopted child] is currently completing university studies. The applicant was also able to source the requisite funds (at apparently short notice) in order to secure an unlawful departure from Vietnam and arrival in Australia. All of this suggests that the applicant has at all relevant times been a person of independent means.
Data breach
150. There is no evidence before me that the data that was inadvertently released by the Department in 2014 contained any information about the protection claims that the applicant made. I also note that that the Department’s own investigation suggests that the information was only accessible online for a short period of time before it was removed from the web and that no evidence has been found by the Department in its subsequent investigation of any data access from Vietnamese web-sources.[59]
[59]Delegate’s decision record at (15).
151. I have considered the applicant’s claims that his family has been subsequently harassed by local authorities. However, for reasons that will be discussed below, I find that these claims lack credibility. Of further relevance to this particular point, I note that the applicant’s immediate family has remained unharmed in Vietnam in his absence. Accordingly, I find that the data released by the Department does not give rise to a claim by the applicant to engage Australia’s protection obligations under either s.36(2)(a) of the Act (the refugee criterion), or s.36(2)(aa) of the Act (the complementary protection criterion).

Returnees
152. I note the following relevant extracts from the most recent DFAT Country Information Report for Vietnam, dated 13 December 2019:
5.27 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return. Article 17 of the Decree on Sanctions of Administrative Violations in Social Security, Order and Safety, Prevention and Fighting of Social Evils, Fire, and Domestic Violence mandates a fine of between VND3 million (AUD187) and VND5 million (AUD310) for crossing a national border without undergoing official exit procedures; evading, organising or helping others to leave illegally; or departing using another person’s travel documents (or permitting another person to use their documents). Fines of between VND5 million (AUD310) and VND10 million (AUD620) are mandated for the owners or operators or vehicles that transport people across the border illegally; and for the use of fraudulent travel documents or other identity documents. In practice, the implementation of this legislation varies depending on the person and the circumstances of the illegal departure.
…
5.29 DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
5.30 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. According to sources in Vietnam, any returnees with travel document concerns are questioned at interview rooms at airports. DFAT understands that would-be migrants who have employed the services of people smugglers typically 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 International human rights observers have reported several recent cases in which failed asylum seekers have been detained upon return to Vietnam from neighbouring states. Human Rights Watch reported that in April 2017, a Montagnard who had sought protection in Cambodia was detained for 12 days and interrogated upon return to Vietnam. The US Department of State reported in 2018 that ethnic and religious minorities, including Hmong and Montagnards, who had fled to Cambodia or Thailand, had claimed that Vietnamese authorities had initially pressured them to return by threatening their remaining family in Vietnam, and then abused, detained, or questioned them upon their return.
5.33 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. 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 Security Situation). Anecdotally, 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.
5.35 DFAT assesses that the government typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves. Such individuals are unlikely to be subjected to the penalties allowed in the law for illegally departing Vietnam. DFAT assesses that long-term detention, investigation, and arrest is generally conducted only in relation to those suspected of involvement in organising people-smuggling operations.

153. It is of relevance to the applicant’s personal circumstances that, by his own evidence, his [Relative A] was an unsuccessful applicant for protection in Australia and was returned to Vietnam in 2014 without experiencing any adverse attention for the essential and significant reason that he was a returnee failed asylum seeker in Australia. While this is not, of itself determinative of the applicant’s own situation, I do find that, given the consistency of the actual lived experience of the applicant’s [Relative A] with the DFAT country information extracted above, it is both probative and relevant.
154. In light of my findings above that the applicant was not of particular interest to the Vietnamese authorities prior to his departure in 2013, I find on the basis of the foregoing country information, that there is a slight chance that the applicant might be questioned briefly on return to Vietnam. It is likely that, if he is questioned on return, he may face a small administrative fine for his irregular departure from Vietnam.
155. As the applicant retains a business interest in Vietnam, I find that he would have the capacity to pay any such administrative fine and would be returning to a business with an established, durable [asset] and a high degree of community support as a former contributor to his local church parish. In this respect, I also not that the [Village 1] parish Catholic church is an established and officially sanctioned Catholic parish within the Archdiocese of Vinh. Accordingly, I find that there is less than a real risk that the applicant faces any significant harm on return to Vietnam now and for the foreseeable future from any person for any reason.
Findings
156. On the basis of the foregoing, I accept that prior to February 2013 the applicant was [in the specified] committees of the [Village 1] parish Catholic church between 2008 and 2013.
157. I accept that the applicant has had a lifelong commitment to the Catholic faith. I accept that the applicant is a sincere advocate for pro-life causes and has been so throughout his life. I accept that the applicant has used his financial resources for the benefit of the Catholic community of his local area. I accept in particular, that on occasion, he has provided the required funds to support church activities, including by means of bus transport. I find that the video footage that the applicant has provided in the course of this application relating to bus travel relates to church-based community outings. Given my concerns above about the applicant’s tendency to embellishment, the unsatisfactory elements of his conduct as a witness and the lack of independent corroborating evidence, I find that there is no link between the video footage and the violent protests in Con Cuong on 1 July 2012 or its aftermath.
158. I find that the applicant and his immediate family did travel to Con Cuong [in] July 2012. I find that this was in response to violent protests and counter protests that occurred there on 1 July 2012 and which had been reported widely within the Catholic community of Nghe Anh. I find that this pilgrimage by the applicant and his family was personal and did not attract adverse attention from the Vietnamese authorities for the essential and significant reason of the applicant’s political or religious beliefs. Stripped of embellishment and taking the applicant’s evidence as a whole with an objective eye to fact, I accept that the applicant, as a successful businessman who was also a committed Catholic and [a member of the specified] committees of the [Village 1] parish church, would take reasonable steps to express solidarity with the people of Con Cuong. I find that the motivation of such a visit was due to either or both a sense of personal obligation and a desire to report back to members of his congregation and hamlet, and not for any purpose of prohibited protest.
159. I accept that the applicant may have been questioned by Vietnamese authorities on his way to and from Con Cuong [in] July 2012, which is an inland rural community with few accessible roads from the more coastal Quinh Lu’u district. Any such questioning of the applicant would presumably have involved taking down the applicant’s personal details. Given the reported levels of violence occurring in connection with protests and counter-protests on 1 July 2012 in Con Cuong, I further accept that any questioning of the applicant by authorities intercepting the applicant on his journey between [Village 1] and Con Cuong might have been heated and pointed. I find that any such conduct on the part of Vietnamese authorities was not for the essential and significant reason of the applicant’s political or religious beliefs. Rather any such conduct, assuming for completeness that it may have occurred, would have been due to the recent community violence in the area and the fact that the applicant was travelling so far away from his home.
160. Accordingly, I find that any contact the applicant might have had with authorities in connection with the Con Cuong protests in early July 2012 was due to the non-discriminatory enforcement of laws of general application and lacked the requisite connection with the criteria at Article 1A(a) of the Convention.^[60]
[60]Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20].
161. I further find that the applicant did not organise any protests, including the payment for bus transport, by parishioners or community members from [Village 1] in response to protests and counter-protests on 1 July 2012 in Con Cuong. Rather, the only community response in which the applicant participated, following the violence of 1 July 2012 in Con Cuong, was the peaceful prayer vigil arranged by the Catholic Archdiocese of Vinh for 15 July 2012.
162. Accordingly, I find that the applicant was not the subject of any summonses issued by the Vietnamese authorities on the basis of any activity engaged in, or perceived to have been engaged in, by the applicant in connection with protests and counter-protests on 1 July 2012 in Con Cuong. It follows that I further find that the applicant was not unlawfully detained and violently interrogated in the [specified police station in] Quinh Lu’u District [during] July 2012.
163. As to the applicant’s claims to have organised a visit to Con Cuong, including paying for [buses] to transport parishioners in early 2013, the applicant has provided no corroborating evidence to suggest that any such visit occurred. Even if his claims are accepted, given my findings above that the applicant’s initial visit (near in time to the actual protest violence) were personal and unremarkable, there is nothing to suggest that a parish outing that may have taken place six months later to a sister parish would be any more remarkable. In this respect, I note that it is for the applicant to make his own case.
164. I find that neither the applicant’s wife, children nor parents have been the subject of adverse attention from Vietnamese authorities or other agents of harm since the applicant departed the country unlawfully in 2013 for the essential and significant reason of any of the claims made by the applicant under the present application. To the extent that members of the applicant’s broader extended family have been the subject of adverse attention from the Vietnamese authorities or other agents of harm, I find that this has been due to the personal circumstances of those individuals and not because of any conduct by the applicant, actual or perceived.
165. For the foregoing reasons, I find that the applicant does not engage Australia’s protection obligations pursuant to s.36(2)(a) of the Act (the refugee criterion). Having considered the applicant’s claims for protection under the refugee criterion, I have also considered the alternative criterion. Noting that the threshold applicable to assessing the real risk of significant harm under the complementary protection criterion is the same as that for the real chance of serious harm under the refugee criterion, it follows that I am not satisfied that the applicant engages Australia’s protection obligations now or in the reasonably foreseeable future if he were to return to Vietnam for the purposes of s.36(2)(aa) of the Act (the complementary protection criterion).
CONCLUDING PARAGRAPHS
166. 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
167. 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).
168. 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 any of the criteria in s.36(2).
DECISION
169. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Dr Colin Huntly
Member