1926227 (Refugee)

1926227 (Refugee) [2022] AATA 3536 (2 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926227
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Melissa McAdam
DATE:2 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 February 2022 at 2:34pm
CATCHWORDS
REFUGEE – Protection visa – Vietnam – religion – Catholic – active membership in the Catholic Church – refusing to join the army – a failed asylum-seeker – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
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 Home Affairs on 27 August 2019 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 19 August 2016.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
SUMMARY OF Claims and evidence
Claims Background
The applicant was born in [date]. He is a from Nghe An in Vietnam. He came to Australia by boat in April 2013, as a minor.
In November 2013 the applicant provided a Statutory Declaration to the Department which included the following:
Our entire village is Catholic.
…
When I was young, my parents told me that the police forbade a school to be built in the village.
I once participated in a demonstration about the oppression of Catholics by the Government in Con Cuong parish. I was in [a specified grade] at the time. There were around 50 people from the village involved, and even more from outside the village. I went with my elder brother and some other young people in our parish. We travelled for 3 or 4 hours to get there. We carried written slogans on banners and chanted slogans, saying ''give back freedom to Catholic people''. Some of the people who participated were beaten by the police and sprayed in the face with some kind of liquid. My brother was sprayed, but I was unharmed.
I saw that the local police oppressed the Catholic people to the extent of destroying things, for example by chopping down the trees that belonged to the church. I saw this myself when I was in [a grade]. They took away the land that belonged to the church. One person saw what they were doing, and went to the church to ring the bell to alert the village. People from the village came to ask the police what they were doing, and the police reacted by hitting them. The police declared that it was government land. The parish priest intervened on behalf of the church, and he was able to have it returned to the church eventually.
While I was in [a grade], the police stopped some of the visitors from other villages from entering our church. The teachers from the evening classes came to intervene, and the police charged them with interfering with public order. They were taken into custody, and still have not been released. The police tortured them to try to make them plead guilty, but they would not do it. Their names are Hai Van Nguyen and Khoi Van Tran. This happened just two or three weeks before I left Vietnam.
It was my parents who decided that I would leave Vietnam. At the time, they didn't tell me why. They just arranged it all. They told me that I should get on a boat and that hopefully I would get to Australia. After I arrived, I spoke with them on the telephone. Then they told me that they hoped that I would be able to have a good future in Australia, and to be able to study. They didn't say this was why they had sent me, but rather that it was their hope for me. They still didn't tell me why they had sent me.
I found out later that people from our village went to the district headquarters to protest against the arrest of Hai and Khoi. After the demonstration, when they returned to the village and went to the church to pray, the police surrounded the church. They mobilised 1000 soldiers from the army stationed outside the village to make sure that no one would come to the village to demonstrate. When the village people confronted the police and soldiers, they were beaten and sprayed. Some people were injured.
Eventually the soldiers were withdrawn, but the police are continuing to monitor the people. I heard about this from my mother. She told me never to come back because bad things were happening at the parish, and it was worse than before.
On 4 June 2014 the Department wrote to the applicant, as follows, inviting him to provide further information in relation to a website data breach:
Invitation to provide information regarding the unauthorised access to personal
Information
In March 2014 you were notified that you were affected by a routine report released on the department’s website. The report unintentionally enabled access for a short period of time to personal information about people who were in immigration detention on 31 January 2014.
As previously stated, the information included your name, date of birth, nationality, gender, details when you were detained (reason and where) and if you have other family members in detention. It did not include any current or former address, phone number or contact information. It did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.
You were informed that any implications for you personally would be assessed as part of the department’s normal processes.
Currently you do not hold a visa to remain in Australia and are liable for removal. If you
have concerns regarding the impact of the data breach in your case, then you are invited to put those concerns to the department in writing.
Any concerns you have will be considered in addition to any other information you have
already provided to the department. If you have any concerns about the impact of the data breach on your ability to return to your home country or country of usual residence, you should give specific reasons as to why you cannot return.
In a response dated 20 June 2014 the applicant wrote the following:
I found out that my name had been included in a breach of security data when I received the letter dated 4 June 2014, which was given to me in person by [Ms A] on 6 June 2014. [Ms A] explained to me what had happened and then handed me the letter, telling me that I had 14 days to write to the Department and tell them if I thought that something might happen to me if I went back to Vietnam. When I heard about the data breach, l felt really concerned and frightened. I felt this way because if I am sent back to Vietnam, they might do something terrible to me for political or social reasons. I was not only afraid for myself, but also for my parents. The reason that I felt this way is because I felt that it was possible that through the information published, that they could find out about my family.
I think that the government doesn't like the Catholics, and for them to understand that I had sought asylum would mean that I am even more at risk. I have provided to the Australian government information about harassment conducted by the Vietnamese authorities against our parish.
My parents have repeatedly told me not to come back to Vietnam. They told me that if I return from overseas, my return will put me and them at even more risk than previously.
I fear being tortured as a result of the government finding out about my asylum attempt in order to force me to make a confession for a crime of some kind of political or social reason. This would enable them to harm me and my family.
Before I arrived in Australia I lived with my family in a Vietnamese city named Vinh. There are over 303,000 inhabitants in this city. Most inhabitants in Vinh are Catholic. The Vietnamese 'authorities' (government, police and military) do not want Catholics to worship.
I was born on [date] to Catholic parents. I was baptised on [date]. My baptised name is [name]. This name is registered in Vietnam. The name [first name] is a holy name from the bible and it identifies me as a Catholic.
When l turned [age] my parents allowed me to attend services at a Catholic Church with the Church father. My church is named My Yen, it is located [distance from] my family home where I lived before I left Vietnam.
On three occasions in 2013, the 'authorities' physically stopped people in my city from praying in my church. The first occasion was on the May 22, 2013, and the second on June 27, 2013. On these two occasions the 'authorities' arrested people who were praying in my church. On the 4th of September 2013 the 'authorities' put a great suppression on my Church and took land from it. The 'authorities' attacked worshipers; they hit people (including children) with guns they held in the hands. They also used orange smoke bombs that burned people's eyes. Approximately 300 people (including children) were beaten and injured by the 'authorities'. Approximately 40 people were severely injured (including broken bones, facial injuries and severe bleeding), and 3 people received brain damage. Nobody that had been injured was allowed into hospital for medical care (this included local and distant hospitals).
My name is on a list of members of my Catholic Church that the Vietnamese 'authorities' hold. My family home is [distance from] my Catholic Church. The 'authorities' know this. Myself, my Church Father and my family believe that if I return to Vietnam, I will be punished for my active membership in the Catholic Church. I am afraid that the 'authorities' in Vietnam are aware (more so after the possible data breach) that I have escaped to Australia for fear of persecution, and they will punish me for this. Should I return by plane, they will know by my documents that I am a returning Catholic. I am very afraid that I will be beaten and tortured by the 'authorities' and will be unable to receive medical care. I also believe that because I am a minor, my father may be charged in my place by the 'authorities' because of my church membership and sent to jail. My father is the person in who supports my family financially. If I return home I am scared that there will be terrible consequences for my family and myself.
In summary I believe that I have a well-founded fear of being persecuted in Vietnam for reason of my religion (as an actively practicing Catholic), and because of this fear I am unwilling to return to Vietnam.
I include with this declaration a copy of an official Vietnamese letter provided by my Church father that further explains my situation.
2016 Protection visa application
The following is a summary of the claims and information the applicant provided in his Protection visa application in 2016:
a.He submitted copies of Vietnamese Identity documents.
b.He lived in Nghe An all his life in Vietnam.
c.He is single.
d.His parents, [and siblings] are living in Vietnam.
e.He attended primary school, then secondary school until May 2011.
f.He has never been employed.
g.He is of Catholic religion. His parents were jailed for being devout Catholics who protested against the government’s prejudice against Catholics.
h.There have been clashes between the government and the Catholic churches in the central regions of Vietnam. The government is trying to eradicate the religion.
i.He saw his parents and other Catholics being tortured and discriminated against.
j.He arrived in Australia by boat in April 2013.
Department Interview
According to the department’s decision record the applicant did not attend his scheduled interview with the department delegate.
Delegate’s Decision
The Delegate was unable to be satisfied that the applicant had a well-founded fear of persecution in Vietnam, or that he was owed complementary protection.
Information to the Tribunal
Tribunal Hearing, 18 October 2021
The applicant appeared before the Tribunal on 18 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant confirmed that all the information in his visa application was correct and that there was nothing he wished to add or change.
b.The applicant did not attend his scheduled department interview because he was worried about it and could not sleep well so he forgot to attend the interview.
c.He was placed in detention on 3 December 2020. He does not have a copy of his documents and application because he left them behind when he was moved from Melbourne.
d.He does not remember submitting a letter from a person in his village. He had someone who helped him with his application and that person submitted documents for him.
e.He is [age] years old. He went to school in Vietnam until he was [age] years old.
f.He was born in the central part of Vietnam, in Vinh. He lived most of his life in Vinh.
g.He has also lived in Saigon. He left home and went to Saigon where he lived for nearly 5 months. He lived there with his friend and helped his friend to do minor work. His friend worked in a [workplace] so the applicant would help [doing specified job]. He did not get paid. He stayed with his friend and helped his friend so his friend helped him with daily living expenses. His friend is still in Saigon.
h.The applicant was [age] years old when he went to Saigon. He went to Saigon because he had been studying at school but did not listen to his parents so they hit him every day. Because of this he left home. He ran away from home and never returned.
i.He has not lived anywhere else in Vietnam. From Saigon the applicant travelled to Australia.
j.His parents are in Vinh. The applicant also has . They are in Vietnam but he is not sure where as he has not contacted them lately. He has not contacted his family since he ran away. He did not contact them while he was in Saigon. In the beginning he felt he needed his family but not now.
k.The applicant came to Australia because he had run away from home and had nowhere to live. So he followed people who were coming to Australia. The applicant did not know them before the journey. His friend introduced the applicant to them. His friend also helped the applicant pay for the journey. While the applicant was in Saigon the applicant helped his friend a lot. His friend would be [age] years old now. They had been at school together and the applicant was very close with him.
l.The applicant does not want to return to Vietnam because he doesn’t know where he would return to. He cannot return home as he dare not return to his parents. He is afraid he would be bashed up or kicked and hit by his father. He cannot live in Saigon because he doesn’t know anyone there. His friend now has a family, wife and children and has his own life. The applicant does not think he could find a job or support in Saigon. His friend was able to because he already had family there. The Tribunal put to the applicant that other single men would find jobs in Saigon. The applicant responded this would probably be because they have education and qualifications. The applicant doesn’t have anything. To get labouring or restaurant work the applicant would still need to know how to do it to get employed.
m.The applicant is a Catholic. He attended church in Vietnam. He was able to practice his Catholic religion without problem in Vietnam. He was able to be Catholic and attend church. He did not have any problems in Vietnam because he is Catholic.
n.There was one time in Vietnam that the applicant had problems with the authorities. He had left school and the authorities wanted him to join the army but the applicant didn’t. He will probably be put in prison because he did not fulfill his duties. He will probably be put in a re-education camp.
o.Because the applicant did not do well at school and left school early the authorities expected him to join the army. They sent him a form for this and told him that after three months he would have to join the army. After the applicant received the form he didn’t want to join the army. The local police were then looking for him. They came to his house and asked about him but he was in Saigon by then. About one week after he received the form he went to Saigon.
p.While he was in Saigon he rang his family one time. He told his father he could not take life at home anymore so he had left. His father became angry to the point he could not talk. His father said there is a form and the applicant had to come and join the army. After his father said that the applicant said he would not go back and hung up the phone. He has not had any contact with his family since then.
q.The applicant does not remember what information was provided with his Protection visa application. Before he went inside detention he asked somebody, [a named person] in Melbourne, who assisted him with his Protection visa application three or four times.
r.The Tribunal put to the applicant that the information provided in his Protection visa application was that he feared harm in Vietnam because he is Catholic. The applicant acknowledged this and stated he did not know why this information was provided. In relation to his Catholic religion he had no problems in Vietnam.
s.The applicant’s problems in Vietnam are with his father and refusing to join the army. He has no other problems in Vietnam. If he returns to Vietnam he will probably have to go to a re-education camp. That is the place for people who refuse to join the army. They will just take him there and keep him in prison. He does not know what it is like, but no one wants to be kept inside there.
t.The applicant refused to join the army because at that time he was young and did not know anything and did not want to join. He was[age] years old. He would not be willing to join the army now because it is very dangerous. The people who join before mistreat the ones coming after. There was an incident where a person joined the army and was bashed to death. The applicant saw this in a newspaper.
u.Usually the people who leave school early who do not do well are asked to join the army.
v.The applicant is not sure if the Vietnam government would care that he was in detention in Australia.
w.The applicant is not in contact with his brothers. When he was in Vietnam he was the one hated the most in the family. Sometimes he thought he is not considered a son to his parents. His younger brother and sister were very young. His older brother was very cold and not very friendly.
x.He is not sure if he can practice his Catholic religion if he returns to Vietnam because he will be taken to a re-education camp and will not be able to go to church.
y.He was involved in a protest in Vietnam when church land was taken away in Con Cuong. He was nearly [age] years old at the time. The protest was about 30 minutes away from Vinh. At the protest he was rushed by some people but he ran home and nothing happened after that.

On 18 November 2021 the applicant’s authorised recipient, Mr [B], submitted several documents in the Vietnamese language without translations, to the Tribunal. He referred to the applicant’s family providing English translations at a later date.
Tribunal Hearing, 19 November 2021
The applicant appeared again before the Tribunal on 19 November 2021 to further give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The following is a summary of the information provided by the applicant at this hearing:
a.The Tribunal put to the applicant that the information he provided to the Tribunal at the previous hearing was very different from the information he provided in his Protection visa application. The Tribunal referred to the applicant making no mention, prior to the hearing, of problems with his father, going to Saigon, working in Saigon, or being required to do military service.
b.The applicant responded that this was because when he arrived in Australia he was too young and scared to tell the whole truth. He was afraid if he told the truth he would be deported and kicked out of Australia because of the cooperation between the two governments. This would happen because his matter related to social, religious and political problems. The Tribunal asked the applicant why he did not speak about these problems on arrival. The applicant responded that he was scared, but then his advocate told him there was no problem telling the truth. This was on 4 November this year. The Tribunal put to the applicant that at the previous hearing he spoke of running away from home and having little contact with his father. The Tribunal asked why he would be scared of saying this upon arrival. The applicant replied that he didn’t know, nobody asked him about this. At the first interview nobody asked him about leaving Vietnam. At that time he was still young so he just followed the advice of people who accompanied him on his trip. He does not know why they gave him this advice.
c.The applicant told his representative that his matter is political and religious. He joined a demonstration against the government because they took church land. The Tribunal put to the applicant that he had told the Tribunal he had no problems because of that. The applicant responded that at the end of last hearing he told the Tribunal that he joined the demonstration. The Tribunal agreed that he had said this but that he had also stated he just ran home and had no problems after that. The applicant responded that at the time he was young and just followed other people in the congregation and did not understand the meaning.
d.The Tribunal put to the applicant that country information indicated that only men aged over 17 were subject to conscription in Vietnam. The applicant responded that if his age was calculated according to the Vietnamese lunar calendar he would have been [age], almost [age] at the time. It was just considered that those who finish grade [number] and don’t continue to [a higher grade] are eligible or entitled to be enrolled in the army. The Tribunal put to the applicant that this did not indicate he would be forced to join the army. The applicant responded that they sent him the paperwork to join the army. He didn’t keep the paperwork as it happened a long time ago. He was in Saigon at the time. The Tribunal asked the applicant how he received the paperwork if he was in Saigon. He responded that he went to Saigon and a week after he ran away he telephoned home and his father told him there was some paperwork to join the army. He does not know if that meant he was being forced to join the army.
e.The Tribunal put to the applicant that available country information indicated that re-education camps in Vietnam were a thing of the past. The applicant responded that he did not know about that either and maybe the government would send him to prison. The Tribunal asked why and he responded because he was involved in a demonstration against the persecution of the parish. The Tribunal asked the applicant if this is the only reason the government would imprison him and he responded yes. The Tribunal asked the applicant why the government would do this when they did nothing to him while he was in Vietnam. The applicant responded that for a long time after the event the government still caused trouble to the parish. They arrested two Christians and imprisoned them.
f.The Tribunal asked the applicant what the documents are that Mr [B] had submitted. He responded that he asked for a translation because it is related to a political matter so maybe they are reluctant to provide a translation. The documents are letters from three people, the priest in charge of the parish, the manager of the parish and the applicant’s father. The priest’s letter was written in 2013 but is undated. It says help the person who lives in Australia because of persecution on different dates in 2013; two parishioners were arrested and hundreds were beaten; they were injured but not allowed to be hospitalised in the public hospital; he asks for support and to help this person. The letter includes the applicant’s name and date of birth. The letter also states that on 5 January 2013 the applicant joined other parishioners in a demonstration, the matter related to politics and religion and if the applicant returns he will have trouble. The priest is Father [name deleted]. He was transferred to another area one or two years ago.
g.The letter from the parish manager states that on 5 January there was a demonstration in which the applicant participated; between 22 May and 27 June there were three other political events and demonstrations and two parishioners were arrested. The government promised to release the two but did not keep their promise and sent riot police to hit and beat the demonstrators. More than 300 were beaten, more than 40 were severely injured and admitted to private hospitals but public hospitals did not admit them. Please help the person mentioned in the letter.
h.The applicant’s father wrote his letter on 5 November this year. It states the same as the other letters.
i.The Tribunal asked the applicant why the three letters appeared very similar and the applicant responded it is a matter of the truth. The Tribunal put to the applicant that their similar appearances might indicate they are not genuine. The applicant responded that they are about the parishioners.
j.The Tribunal asked the applicant why his father would write a letter for him if they are estranged. The applicant responded that he still communicates with his older brother. The Tribunal put to the applicant that at the last hearing he stated he did not communicate with his brother. The applicant responded that after the hearing he did. He asked his brother to ask his father to write a letter about the true matter. He contacted his brother by Face Book. The Tribunal asked the applicant if he had a copy of the message he sent his brother and he responded yes, but he did not send his brother a message, he talked to his brother directly by messenger. The applicant’s brother sent the letter to the applicant by email.
k.The Tribunal asked the applicant if anyone in his family had had problems since the applicant left Vietnam. The applicant responded not his family but local government had troubled the local parish several times. The Tribunal asked how this impacted the applicant’s family and he responded that the government blocks the roads to not allow people to go to church for prayer. This happens quite often. Many pilgrims visit the local church. The church has often been harassed and put under surveillance by plain clothed police. He knows this because he talks to his older brother and other friends. The Tribunal asked why this is not mentioned in his father’s letter. The applicant responded that he did not know, he thought because they just come and cause inconvenience but not beating and persecution.
l.The applicant’s family go to church every day. He doesn’t know if they have any problems going to church.
m.The Tribunal asked the applicant if he had any fears in Vietnam in relation to the data breach of the Department’s website. The applicant responded yes he is scared of what happened to his family as they may be jailed. They have not been jailed.
n.The Tribunal asked the applicant what he thought would happen to him if he returns to Vietnam. He responded that he may be classified as causing political offence and jailed. He does not know why this would happen. People in the parish told him that, because of his activity.
o.The Tribunal asked the applicant if he had had any other political activity. He responded that he also joined a demonstration at his parish. This was on 5 January 2013. The government took the parish land and crops. The applicant was still at school and joined the demonstration at the local parish. Two people were arrested. Nothing happened to the applicant because he had already run away to Saigon. He was at the demonstration and then he went to Saigon. He has not had any other political activity.
p.He is scared to return to Vietnam. If he goes back he will be labelled as committing a social and political offence.
q.The Tribunal asked the applicant if he could re-join his family and live there without problem as they seem to do. The applicant responded that he is not sure about that.
r.The Tribunal asked the applicant if there was anything else he wanted to say and he responded no.
Post-Hearing Submission
Following the hearing DFAT released an updated country report regarding Vietnam, on 11 January 2022. On 13 January 2022 the Tribunal provided a copy of the report to the applicant and invited him to comment upon aspects of the report relevant to his claims.
On 27 January 2022 the applicant’s authorised recipient submitted a letter in the applicant’s name which contains the following:
First, I would like to thank you for the opportunity to express my thoughts and concerns over my legitimate protection claims. I would also like to thank for the Vietnam Country Report, which gives some insight into the current knowledge of the country of my motherland.
The report is so insightful and informative about the current social, economic, political reform of the country. However, it covers just part of the reality, and it would be more helpful if having some input from the view of the people who are Vietnamese and live in the country.
Regarding corruption, the report mentioned 65 percent of people paying bribes but in reality, it does start from a child was born in maternity ward where the mother has to pay extra money for doctors and nurses to have good attention and being looked after. To enroll a child in a good school or a school that convenient for your drop off or pick up you have to bribe the school officials. The list is on and on until the child graduated from university and finding a job.
Another obvious scene of corruption is at the international airports where tourists or people returning home after overseas trips must pay bribe for custom officials to bring some extra goods or get fined for nothing.
Anything to deal with legal documents required by the Government needs to have some cash attached to get it done easily, otherwise there are thousands of reasons for it not to be done. The higher rank in government the wealthier public servants are even though they earn very humble salaries.
The inhuman and cruel treatments of people who demand freedom for their religious practice.
The unfair compensations for land and environment seized have seen so many innocent people sent to jails across the country that the report did not have information about.
So many cases in which people who are critics to the Government were enforced or involuntary disappeared were not made public, and the report does not have access to the information.
Discrimination against returnees who fled Vietnam due to previous persecutions. They are denied employment and business opportunities when returned, making life so difficult considering after many years in detention overseas.
In my case, I left Vietnam when I was [age] years old. I am now [age]. It would be so difficult to adapt to the life of people of my age. It is so hard for me to start all over again in the country where there is little or no opportunity to live as a human being. My family is so poor, they are struggling with everyday life, let along supporting me.
I would like to ask for your kind consideration to allow me an opportunity to stay in Australia under refugee status as the option of returning is impossible after ten years of my life been taken away and having to restart everything all over in a country, I had trouble with, and I am so afraid and uncertain about my future prospects.
Country Information
DFAT’s most recent ‘Country Information Report on Vietnam, published in January 2022, contains the following:
Demography
Vietnam’s population is about 100 million people. It is a young, largely rural population with about 7 per cent of people older than 65 years and 38 per cent of people living in urban areas. The two largest cities are HCMC with 8.8 million people, and the capital Hanoi with 4.8 million people.
Economic Overview
According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation.
Employment and welfare
The official unemployment rate is about 2.4 per cent according to ILO data. However, the rate of informal employment is very high. According to figures quoted by the World Bank, 76 per cent of all workers are in the informal sector. The COVID-19 pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020. Women and low-skilled workers were particularly affected by the pandemic with many losing their jobs.
Vietnam is rapidly urbanising. The services sector has become the largest part of the economy at about 50 per cent of GDP. Vietnam has become a popular destination for manufacturing as wages are low and there is a young, growing and increasingly educated workforce. Some multinational companies looking to diversify their outsourced manufacturing have sought out Vietnam as an alternative location to other countries in the region for manufacturing, creating jobs for young people.
The poor are eligible for a social welfare benefit from 60 years of age with greater coverage and benefits for those over 80. The payment is usually not high enough to subsist on without other assistance. A compulsory insurance scheme (pension scheme) covers about 20 to 25 per cent of the population, mostly workers in the formal sector. Given the young population and high rates of informal work, a large number of people are not covered by any pension scheme. Particular groups among the poor, such as the elderly or ethnic minorities, without other means of support, may receive official payments or loans to assist with daily living expenses or practical assistance such as food, healthcare or vocational training.
Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount that they would receive would be unlikely to sustain them without other means of support.
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Religion
Vietnam is officially an atheist state. Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion. In practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers. The 2020 US Department of State International Religious Freedom report estimates, based on census data, that 14 per cent of Vietnamese have some religious faith, with 6 per cent of the population Catholic and 5 per cent Buddhist. Protestants make up about 1 per cent of the population. Small religions and traditional religious-cultural practice (for example, ancestor veneration) are also practised.
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Catholics
While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.
The Catholic Church is, by definition, united and can deal with the Government at a national level across Vietnam. Provincial authorities might also have relationships at the diocesan level; sometimes local relationships are better than the national level relationship. In general, relationships between the Government and the Church are cordial. Individual parishes need to be registered.
Most Catholics worship in churches as part of parishes. Some communities, particularly outside of cities, worship in homes of believers. These activities may be limited by authorities in some cases, but this differs from place to place. In general, Catholics in cities worship freely in churches.
Some Catholic communities are growing in size with evangelism or welfare efforts. This can occur especially where the local Catholic communities have good relationships with the Government. Some sources report that Catholic missionaries and officials have had difficulty reaching more remote parts of the country in recent years, which might be related to COVID-19 restrictions. Written materials, such as newsletters, websites and social media materials exist, but their maintenance, distribution and promotion do not appear to be a priority for Catholic leaders.
There have been Catholic political movements that attract negative attention from authorities. The distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.
The ‘Red Flag Association’, a militant pro-Government movement allegedly under the direction of local governments, was reported to have disbanded in 2018. Red Flag Association activity included protests outside Catholic churches. In-country sources told DFAT that these protests have not occurred in the last two years and that such activity is now more likely to be online.
Land disputes have been reported, including the seizure of Catholic land and buildings. A particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished and the land sold. Appropriated land might be sold to the private sector for development. Conversely, much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades. That process continues, including during the COVID-19 pandemic, reportedly in return for cooperation of the Church with authorities during the pandemic.
Church officials do not have official relationships with the Catholic Church overseas (except perhaps the Vatican), but in-country sources told DFAT that individual Catholics or communities have relationships with the diaspora overseas, including in Australia, and these relationships are generally unhindered.
In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination.
DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.
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Compulsory military service
Vietnam enforces compulsory military service. Men aged between 18 and 25 must complete two years of military service while women can volunteer. Some people attempt to avoid this service, including by paying bribes. If avoidance is detected and prosecuted, they may face a fine or prison term, especially for repeat offenders. Desertion is a criminal offence that can carry penalties including community service or up to 12 years’ prison, the latter only applying to serious offences such as desertion in war time or leaking Government secrets. DFAT is unable to comment on the prevalence of desertion or avoidance or the consequences, outside of criminal sanctions mentioned above, of these activities.
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Treatment of Returnees
Exit and entry procedures
Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
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Conditions for returnees
Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
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.
Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
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Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.

Reports confirm that there were crackdowns and arrests in My Yen parish in Vinh, Vietnam in mid to late 2013. For example an article on the Radio Free Asia website states:
Vietnamese authorities have released all 15 Catholics detained in a bloody crackdown on protests in a North Central Coast province but are still refusing to free two parishioners whose arrest in June triggered the demonstrations, sources said Thursday.
Security remained tight in Nghi Phuong village in Nghe An province one day after police opened fire in front of the My Yen church as they moved to break up a demonstration by hundreds demanding the freedom of parishioners Ngo Van Khoi and Nguyen Van Hai, who had been held without trial for nearly three months.
A parishioner told RFA's Vietnamese Service that five of those detained during the crackdown were freed by the police shortly after being held on Wednesday while the others were released "after our priest talked to them."
On Thursday morning, "many police and soldiers were still in Nghi Phuong," the parishioner said, speaking on condition of anonymity.
At least seven people were injured in the crackdown, one seriously, according to the source.
A man identified only as Van, 35 years old, is in "critical" condition after being "beaten at home" by security forces, the source said. "At this moment, three people are still in hospital."
Parishioners were surprised by the violent crackdown on peaceful protesters, saying they had merely demanded that the authorities keep their promise of releasing Khoi and Hai on Wednesday.
On Tuesday, the village chairman Nguyen Trong Tao signed a document assuring the release of the two parishioners on Wednesday. An earlier assurance of a Sept. 2 release had also not been met. The authorities did not say why they reneged on the promise to release the duo.
"The village's chairman lied to us. We're Catholics and we only can pray," another parishioner told RFA. "We did not use violence but they treated us like that."
Khoi and Hai were taken away in June by suspected government security agents and have been held without trial since then. Their families were informed they were being held for "disturbing public order," but no specific incidents were cited.
State-owned Nghe An TV said Wednesday that the authorities were forced to take action because the protesters had turned violent.
They provoked the police into taking action by "attacking" officers on duty and pelting them with stones, the TV station reported, saying one police officer was injured in the incident.
Vietnam, under one-party communist rule, imposes various restrictions on religious activities, including those of Catholic churches. Tensions between the government and Vietnam's Catholic community have also been marked by disputes over church property seized by the communists during the Vietnam War.
In January, a Vietnamese court jailed a group of over a dozen activists, many of them affiliated with Catholic Redemptorist churches in Hanoi and Ho Chi Minh City, for plotting to overthrow the state in a decision condemned by rights groups and several governments, including the U.S. and France.
The churches have been part of a growing voice among Vietnamese movements for democracy and human rights in recent years.[1]
[1] Radio Free Asia, 2013, ‘Vietnamese authorities refuse to free two church parishioners’, 5 September, accessed at
Later reports state that in January 2014 the two arrested parishioners from My Yen were released from prison.[2]
[2] See Catholic News, 2014, ‘Two Catholics jailed for defending religious freedom released’, 26 January.
Protests in Con Cuong in 2012 by Catholics were also widely reported. The Independent Catholic News website states:
In spite of a massive police presence, and the cancellation of ferries, tens of thousands of Catholics in Vinh Diocese took to the streets today (15 July) to protest against local government attacks on the Con Cuong parish community.
In a letter dated 10 July, 2012, sent to all cardinals and bishops in Vietnam, the diocese of Vinh reported that: "Recently, Catholics in the diocese of Vinh who reside in the North West region of the Nghe An Province have been repeatedly persecuted for their faith. The attack on Sunday 1 July was the peak of a series of harassments against Catholics in the region. On that day, the local government mobilised large groups of police, army, militiamen, and thugs to disturb, and to physically attack priests and the faithful. They seized the chapel of Con Coung, desecrated the Eucharist Host, and smashed a statue of the Virgin Mary."
Asking for spiritual supports and solidarity from other dioceses in Vietnam, the diocese called for massive protests today to demand an end to the persecution that is "ongoing by the local government", and the immediate halt to the ongoing propaganda and defamation campaign against Catholics in the state media.
Dioceses across Vietnam have responded to the appeal with special prayers. Banners have been hung in front of all churches of the diocese of Vinh protesting at the government actions.
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On Saturday morning, three armoured fighting vehicles were seen in front of the Bishop's Residence of Vinh. Police in provinces of Quang Binh, Ha Tinh, and Nghe An had been put on high alert in the wake of huge protests by Catholics from 178 parishes of the diocese of Vinh.
Large groups of security men also roamed the streets near churches. Thousands of local Catholics had spent Saturday night walking for tens of kilometres on National Highway 1 before they could reach to the deanery's church. At dawn, National Highway 1 en route to Thuan Nghia was packed with thousands of motorbikes carrying Vatican flags from parishes of Loc Thuy, Son Trang, Xuan An. By 7am local time, thousands of Catholics had already gathered at deaneries of Bot Da, Thuan Nghia, Van Hanh, Bao Nham, Cau Ram, Nhan Hoa, Cua Lo, Dong Thap, Phu Qui, Can Loc, Van Loc, and at the bishopric office of Xa Doai.
Scheduled services of ferries between Dong Lam and Quan Lang were cancelled to prevent local parishioners to join the protests. Local Catholic sources from the diocese of Vinh also report an incident at Bot Da where police and thugs disrupted the Mass at Bot Da. The protests at other deaneries went peacefully. [3]
[3] Independent Catholic News, 2012, ‘Vietnam: mass protests after government crackdown on Catholic Church’, 15 July.
CONSIDERATION OF Claims and evidence
The applicant submitted copies of Vietnam identity documents in his name. On the basis of these documents and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Vietnam. The Tribunal assesses the applicant’s claims against Vietnam as his country of nationality and receiving country.
Credibility
The applicant has raised several claims to fear harm in Vietnam over the course of his Protection visa application and review application. These are related to his Catholic faith, participation in parish demonstration, a breach of the Department’s data website, his failure to perform military service, and mistreatment by his father.
Catholic faith
The applicant has consistently maintained that he and his family are of the Catholic faith. He comes from a region in Vietnam, Vinh in Nghe An province, in which many Catholics reside. He has given evidence of his Catholic practice in Vietnam. No concerns have arisen about the genuineness of the applicant’s claim to be Catholic and the Tribunal accepts that he is a practicing Catholic.
The applicant’s evidence regarding difficulties he and his family faced in his parish has been much less clear. He has provided inconsistent and contradictory evidence at different stages of the application and review process.
In his first detailed written statement to the Department the applicant wrote of participating in a demonstration in Con Cuong when he was still at school, in year [number]. He also referred to witnessing the police damaging church property, hitting people, and arresting two parishioners while he was a school boy in years [number]. He also referred to other events happening in his parish after he departed Vietnam. According to available country information the Catholic church protests in Con Cuong took place in July 2012, when the applicant would have been [age] years old.
In his Protection visa application the applicant made no reference to any personal involvement in church protests. In the application it was stated that he left school in May 2011 and that his parents had been jailed and tortured because they are devout Catholics, with no details provided. At his first Tribunal hearing he denied knowing what was written in his Protection visa application. He also stated he had no knowledge of his parents having problems. He stated clearly he had no problems regarding his Catholic religion and practicing his religion in Vietnam. In view of the applicant’s statements at hearing the Tribunal does not accept that his parents were ever jailed or tortured as Catholics in Vietnam.
Near the end of the first hearing the applicant stated that he participated in a church-led demonstration in Con Cuong when he was nearly [age] years old. This would make the year 2010 which is prior to the date of the reported Catholic protests in Con Cuong, namely July 2012. However given the applicant was a child at the time the Tribunal accepts that he may unclearly recollect the year in which he participated in such a demonstration. The protests in Con Cuong, which is close to the applicant’s home area Vinh, were reportedly widely attended by parishes in the area. The Tribunal gives the applicant the benefit of the doubt that he did attend the Con Cuong protest when he was a child and that nothing happened to him as a result of his attendance.
At his second Tribunal hearing the applicant gave very different evidence. He stated he had participated in a church-led demonstration in his parish in January 2013 and this was the extent of his political activity in Vietnam. The applicant also submitted letters from people writing that the applicant participated in the 5 January 2013 demonstration. The letters submitted by the applicant’s authorised recipient are of very similar appearance, suggesting they may have been created by the one person. There is also no available country information reporting any protests, as described by the applicant and in the letters, in the applicant’s home area at the alleged time, despite the reporting of other similar incidents at different times in various locations. Given the applicant had not raised this claim at any time prior to the second hearing and the external and internal inconsistencies in his account, the Tribunal does not accept that the applicant participated in a church-led demonstration in his parish in January 2013.
The applicant has made several mentions of witnessing the local authorities damage and claim church property. This accords with available country information about government actions at the time and the Tribunal accepts that as a child the applicant did witness these things on occasion in his local area.
Data Breach
Based upon the available information from the Department the Tribunal accepts that the applicant’s name was amongst the list of detainees whose details were briefly publicly available on a Department website in 2014.
Military Service
At his Tribunal hearing the applicant raised for the first time that in 2012 he was required to do military service in Vietnam and that he would be imprisoned in Vietnam for not doing so. As put to the applicant he would have been [age] years of age in 2012, therefore younger that the age subject to compulsory military conscription. His account of when he was required to do service and when and how he received conscription forms was also confused. When the Tribunal explored his claim further with him he did not appear aware as to whether or not he was being required to do compulsory military service. As described by him it seems his father may have wanted him to voluntarily join the army however this is speculative as the applicant did not state this as any clear fact. In view of the applicant’s young age and his confused evidence the Tribunal does not accept that the applicant was required to do compulsory military service in 2012 or at any time before he departed Vietnam. It follows that the Tribunal does not accept the applicant will be arrested or imprisoned by the authorities on return to Vietnam for failing to do compulsory military service.
The applicant has now turned [age] years old. According to DFAT’s report males between the age of 18 and 25 years old are subject to compulsory military service in Vietnam. Therefore if he returns to Vietnam now the Tribunal accepts that the applicant may be required to perform compulsory military service.
Father
At his first Tribunal hearing the applicant raised for the first time that he had been physically mistreated by his father so ran away from home to Saigon when he was [age]. He stated he remained in Saigon for about five months before journeying from there to Australia. This indicates he went to Saigon, nearing the time of his [age] birthday, so just prior to November 2012.
The applicant made no mention of problems with his father or living in Saigon at any previous time. In contradiction, the earlier information showed that he was supported by his father who was concerned about his future and made the arrangements for his travel to Australia from the applicant’s home area. The applicant’s evidence that his father and brother have been helpful and communicative in providing supporting documents to him and keeping him informed of the situation in his home area also contradicts his evidence at hearing that he is estranged from his family.
Given the late raising of this claim and the inconsistency of the applicant’s evidence regarding it, the Tribunal does not accept that the applicant was physically mistreated by his father so that he ran away to Saigon when he was [age] or that he is estranged from his family in Vietnam.
Fear of Harm in Vietnam
The Tribunal has accepted that the applicant is Catholic and participated in a church organised demonstration in Con Cuong in 2012. The Tribunal has also accepted that some of his details were briefly made publicly available from a Departmental website in 2014, and that he will be subject to compulsory military service in Vietnam until he reached the age of [age].
Catholic Religion
The available country information and the evidence submitted by the applicant shows that Catholics can be subjected to harassment at times from local authorities and can be subject to attack and arrest if their actions challenge the Vietnamese authorities. The available country information and the applicant’s evidence show that this has occurred in the applicant’s home parish, prior to and subsequent to his departure in mid to late 2013.
The Tribunal has not located any independent evidence of further harassment, interference, attacks or arrests involving Catholics in the My Yen parish or surrounds since the 2013 incidents. The latest DFAT Country Information report also makes no reference to incidents of the type that occurred in 2013 re-occurring in recent times. The report states that Catholics can largely practice their faith unhindered and that relations between the church and the government can be cordial and positive.
The applicant further stated that his family in Vinh have continued to attend church since his departure and he has no knowledge of them encountering any problems as Catholics in Vietnam in this time.
The Tribunal has accepted that the applicant participated in the Con Cuong demonstrations in July 2012 as a child. He stated that he just followed the other parishioners and did not really understand the meaning at the time. As stated by the applicant he did not suffer any adverse consequences from the authorities due to his participation. There is also no accepted evidence that the authorities have shown any interest in the applicant or his family due to the 2012 demonstrations, or for any other reason, while the applicant was in Vietnam or since his departure from Vietnam. On the information before it the Tribunal is not satisfied that there is a real chance that the applicant will face serious or significant harm or any adverse interest from the Vietnamese authorities due to his participation in the 2012 Catholic demonstration in Con Cuong.
The available country information shows that the millions of Catholics in Vietnam are able to practice their faith safely as long as they avoid involvement in anti-government activity. The Tribunal considers that if the applicant returns to Vietnam he will be able to attend church and practice his Catholic faith without restriction, as he did when he lived there and as his family appears to continue to do. The applicant has not given any evidence of wanting to further challenge the authorities in Vietnam and there is no indication in the evidence before the Tribunal that the applicant will participate in anti-government activity on return to Vietnam. His description of his motivation for joining the Con Cuong protest was as a follower in a popularly attended event he did not understand. The Tribunal therefore finds that the applicant will not fall within the category of Catholic anti-government or human rights activists or protestors who may encounter problems with the Vietnamese authorities.
In view of the above the Tribunal is not satisfied that there is a real chance the applicant will face serious or significant harm as a Catholic, or due to his Catholic practice in Vietnam.
Department’s Website Data Breach
The Tribunal has accepted that information about the applicant was inadvertently publicly available on the Department’s website for a short period in February 2014. This information included his name, date of birth, nationality, gender and details about his detention, but not that he applied for a Protection visa or information regarding his claims for protection.
Since the information became publicly available the applicant has not reported any contact by the authorities with himself or his family in Vietnam. There has been no evidence of any adverse interest by the Vietnamese authorities in the applicant or his family.
On his return to Vietnam the authorities may be aware or suspect that the applicant has unsuccessfully claimed asylum in Australia. However there is no evidence before the Tribunal that this would cause them to react adversely to the applicant or cause him harm.
Given the nature of the information the Tribunal does not consider that its publication would cause any problems for the applicant with the authorities on return to Vietnam. The Tribunal is not satisfied that there is a real chance of serious or significant harm to the applicant in Vietnam, arising out of the Department’s ‘data breach’ or the Vietnamese authorities’ subsequent knowledge or suspicion that the applicant has been detained and/or claimed asylum in Australia.
Military Service
As someone [age] years of age the applicant may be required to perform military service in Vietnam if he returns there before reaching the age of [age]. According to the available country information the period of service would be up to two years. A person refusing to do military service may face a fine or prison term.
The applicant stated at hearing that he did not want to perform military service because new conscripts could be subject to mistreatment by other serving soldiers. The Tribunal was not able to locate any information that this occurs but accepts it is possible given evidence of ‘hazing’ in the armed forces in various countries including Australia. The applicant spoke of reading a report, while a child in Vietnam, of a new recruit being killed, but there is insufficient detail to know if or how or why this occurred. While mistreatment of new recruits may occur there is no indication in the information before the Tribunal that it is at such a level or of such seriousness that it gives rise to a real chance of serious or significant harm to the conscripts.

The applicant also has not put forward any reason related to race, religion, nationality, membership of a particular social group or political opinion for his stated unwillingness to serve in the Vietnamese armed forces. Conscription laws in Vietnam appear to be laws of general application. However as the law reportedly stands in Vietnam it is males between the age of 17 and 25 who are subject to conscription. It is therefore arguable that the law discriminates against a particular demographic, young men of conscription age. This raises the question whether the law is can properly be regarded as appropriate and adapted for a legitimate purpose. In Chen Shi Hai v MIMA (2000) 201 CLR 293 at 303, it was stated that:
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.
There are no indications that Vietnam’s conscription laws offend civil society standards. In the circumstances, the Tribunal considers that the Vietnamese law of conscripting males 18 to 25 years of age is appropriate and adapted to achieving the legitimate national objective of protecting the Vietnamese nation.
There is no indication that the punishment for evading or refusing to perform military service is enforced selectively in Vietnam or that it contains a discriminatory element. There is no evidence that the applicant would be targeted or treated differently for any reason expressed in s 5J(1)(a) in the application of the law in relation to military service or as to any punishment for avoiding military service.
The Tribunal is therefore not satisfied there is a real chance of the applicant facing persecution, as defined in s.5J of the Act, in regard to his performance of military service or punishment for evading military service.
There is no indication the applicant will be subjected to significant harm as part of his military service. While it may entail difficult conditions and poor treatment from other soldiers there is no indication this is to a level which amounts to torture, or arbitrary deprivation of life, or the death penalty, or cruel or inhuman or degrading treatment or punishment. The available country information regarding punishment for not performing military service also does not suggest it involves torture, arbitrary deprivation of life, the death penalty, or cruel, inhuman or degrading treatment or punishment. The Tribunal is therefore not satisfied that there is a real risk the applicant will suffer significant harm as result of the requirement to perform military service.
On the evidence before it the Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant if he is conscripted into the Vietnamese armed forces or refuses to perform military service upon return.
Return to Vietnam
The applicant claims he will face discrimination and hardship on return to Vietnam because he left there and sought asylum in Australia. He has been outside of Vietnam for approximately 10 years and will have difficulty adapting again to life in Vietnam. He speaks of his family being too poor to support him.
DFAT’s report indicates that leaving Vietnam and seeking asylum or residence in another country would not ordinarily bring a person to the adverse attention of the Vietnamese authorities. However the report also states that returnees face difficulties finding employment and accessing social services.
The Tribunal notes that the applicant’s family continues to live in Vietnam. The applicant is therefore able to able to return to his family home to help him re-establish himself in Vietnam. His family have shown him some recent support in providing documents and information to him. In his written letter the applicant stated his family is too poor to support him did not suggest they would not try to support him. As found above the Tribunal does not accept the applicant is estranged from his family. Although his family may be poor they have accommodation in the family home for the applicant.
The Tribunal accepts that there is a real chance the applicant will have initial difficulty finding employment in Vietnam. His difficulties would in part be due to his lack of skills and qualifications and his lengthy time away from Vietnam. DFAT’s report shows a moderate official unemployment rate in Vietnam. The available information does not suggest that the applicant will have no employment options or prospects in Vietnam. In the circumstances the Tribunal is not satisfied there is a real chance the applicant will not find employment in reasonably foreseeable future.
Further the applicant’s likely difficulties accessing employment on return are not for any of the reasons set out in s.5J(1) of the Act. Nor do the difficulties or ensuing hardship amount to significant harm under the Act. They are not the result of an intentional act by a party or parties, but the result of the economic environment and the general difficulties facing people trying to re-establish themselves in a country.
The Tribunal is therefore not satisfied, on the information before it, that there is a real chance the applicant will suffer persecution or significant harm on return to Vietnam as a result of him leaving there and claiming asylum in Australia.
CONCLUDING PARAGRAPHS
The applicant has not raised any other claims to fear serious or significant harm in Vietnam and none arise on the information before the Tribunal.
For the reasons given above the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Vietnam as defined by s.5J of the Act or that there is a real risk he will suffer significant harm upon return to Vietnam.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
Member

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

[2022] AATA 3536

2 February 2022

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice