1929335 (Refugee)

[2022] AATA 2623

1929335 (Refugee) [2022] AATA 2623 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kate Khanh Hoang

CASE NUMBER:  1929335

2013024

2013028

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Roslyn Smidt

DATE:29 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas in:

a. matter 2013024 (Temporary Protection visa application made on 17 September 2013; and
b. matter 2013028 (Temporary Protection visa application made on 17 September 2013; and
c. matter 1929335 (Temporary Protection visa application made on 3 November 2015.

Statement made on 29 June 2022 at 1.30 PM

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – anti-Communist – pro-democracy – involvement in violent confrontation – failed asylum seeker – illegal departure – inconsistent evidence – credibility issues – decisions under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 46A, 65, 91R, 91S, 438, 499
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2

CASES

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
MIAC v SZQRB (2013) 210 FCR 505

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

APPLICATIONS FOR REVIEW

1. The applicants, who are citizens of Vietnam, have applied for review of three decisions made by two delegates of the Minister for Home Affairs to refuse to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. In the circumstances set out below I find that all three applications are valid.

3. Prior to the hearing the applicants were advised that I had been allocated the three applications currently before the Tribunal and that unless they had any objections I would hold a joint hearing for all three applications. I also advised them that the decisions relating to the earlier application would be assessed in accordance with the law that was in force at that time, while the decision relating to the more recent application would be assessed in accordance with the current law.  I explained this again at the hearing. No objections were raised.

   MIGRATION HISTORY

   Application lodged on 17 September 2013 (2013024 and 2013028)

4. The applicants arrived at Ashmore Reef [in] October 2012. They lodged an application for a Protection Permanent XA-PV visas (PPV) on 17 September 2013 (Department file [number]). Until 2018 the Department acted on the assumption that the applicants were “unauthorised maritime arrivals” (UMAs) and that this application was therefore invalid. However, in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (DBB16), the Federal Court concluded that a person is not a UMA through the act of entering Australia by sea at the Territory of Ashmore and Cartier Islands. As a result, the application was found to be valid and the PPV application was converted to a Temporary Protection visa application (TPV) in accordance with reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations).

5. The applicants were interviewed by a delegate of the Minister (the second delegate[1]) in relation to this application on 6 March 2020. The delegate refused this application on 12 August 2020. She issued separate decision for the applicants (father 2013024 and daughter 2013028).  Applications for review of these decisions were lodged on 20 August 2020.

   [1] I have referred to this delegate as the second delegate as she was the second delegate to interview the applicants.

   Relevant law in September 2013

6. 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

7. 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).

8. 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.

9. 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.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. 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)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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.

20. 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.

    Application lodged on 3 November 2015 (1929335)

21. In 2015 the Minister lifted the s 46A bar and invited the applicants to apply for protection. On 3 November 2015 they applied for TPVs (Department file [number]). This application was refused by a delegate of the Minister (the first delegate) on 19 August 2016. As it was assumed at the time that the applicants were UMAs, the delegate’s decision was reviewed by the Immigration Assessment Authority (IAA). The IAA affirmed the delegate’s decision on 14 December 2018. However, following the decision in DBB16, this decision became invalid and the delegate’s decision became reviewable by the Tribunal. The applicants applied for review of that decision by the Tribunal on 20 August 2020.

    Relevant law in November 2015

22. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

23. 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.

24. 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).

25. 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.

26. 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)

27. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).

28. 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.

    BACKGROUND

29. Applicant A is a [age] year old married man of the Catholic religion. Applicant A’s wife and two of his children remain in Vietnam. They remain in contact. Both of his parents have died since his arrival in Australia.

30. The applicant A resided in [Village 1], Duc Tho District, Ha Tinh Province in Vietnam. When applicant A was young his parents relocated to [Village 2], a small town or village located about 2 hours from his home for economic reasons. He remained with his grandparents. He worked as a farmer and sometimes in construction. He owned his own home in Vietnam.

31. Applicant A was arrested in early 2018 on drug charges. At the hearing he said that he pled guilty to these charges. Since his arrest he has been in custody or migration detention.

32. Applicant B is applicant A’s daughter. She turned [age] shortly after she left Vietnam with her father and is now [age] years old. She lived with her father until he was arrested when she was about [age] years old. Since 2018 she has lived with her teachers. She remains in contact with her father who is in migration detention and her mother in Vietnam.

    SUMMARY OF CLAIMS

33. Applicant A claims that [Father C], a well-known activist priest, asked him to act as a security guard at the chapel[2] his parents attended in [Village 2], during a period of increased repression of local Catholics in 2012. He was involved in a violent confrontation with police, soldiers and others on Sunday 1 July 2012 and forced to flee his homeland to avoid arrest. He also claims that he is involved in a secret political organisation led by [Father C] and others. 

    [2] This building has been referred to as a church, a chapel and a residential home. For convenience I will refer to it as a chapel unless the nature of the building is an issue.

34. Applicant A claims to fear harm in Vietnam because of: his Catholic religion; his anti-Communist and pro-democracy political opinion or opinions which may be imputed to him because he is a Catholic and because of his association with [Father C] and the church in [Village 2]; his illegal departure from Vietnam; his status as a failed asylum seeker; and the cumulative impact of some or all of these factors.

35. Applicant B claims to fear harm on return to China for the reasons of religion, her association with her father, her actual or imputed anti-communist political opinions likely to imputed to her because of her religion, her gender, her illegal departure from Vietnam, her status as a failed asylum seeker, the time she has spent in Australia and the cumulative impact of some or all of these factors.

36. Applicant A and B attended joint hearings held on 21 March 2022 and 28 March 2022.

    NON DISCLOSURE CERTIFICATE

37. A documents labelled s438 certificates is attached to Department file [number]. The certificate was issued on the basis that the disclosure of the information it contains would be contrary to public interest as it is an internal working documents which contains information which could reveal methodology used to detect fraud. I am of the view that the certificate is not valid as this is insufficient for a claim of public interest immunity. In any event, the document relates to the examination of identity documents provided by the applicants and concludes that the documents are or could be genuine. Both delegates accepted that the applicants’ identity documents as valid and that they were who they claimto be. In my view the information covered by the certificate is irrelevant as to my determination as to whether the applicants are entitled to protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE: APPLICANT A

    Applicant A’s Catholic faith

38. Applicant A has consistently claimed to be a Catholic and to have practised his religion regularly in Vietnam.

39. When he was interviewed on arrival and during his interview with the first delegate he claimed that he had been discharged from compulsory military service in 1998 after a very brief time because of his Catholic religion. At the hearing I advised him that it was not my understanding that Catholics were barred from military service in Vietnam. He maintained that he had been expelled from the army because of his religion.

40. In a statement dated 4 September 2013, applicant A said that most of the students at his school were Buddhists and he was sometimes teased because of his religion, but he was never hurt and did not feel threatened. At work people sometimes said disrespectful things, but overall he was happy.

41. At the hearing I advised him that it was my understanding that he had attended church regularly in his local area and that the only problems he faced between 1998 and July 2012 were minor. I also advised him that I was aware that some Catholics who were politically active might be at risk of harm in Vietnam, but it was my understanding that ordinary Catholics do not generally face significant problems. He confirmed that he had not faced any significant problems prior to July 2012 because of his religion and agreed that Catholics  do not generally face problems because of their religion. He added that he would not have left Vietnam if he had not been involved in an incident in [Village 2] in July 2012 (see below). He said that his family continued to live at the same address and attend the same church and while he claimed that they faced some problems related to the authorities’ interest in him because of what happened in [Village 2], there was no suggestion that they had experienced problems related to their religion.

    Findings of fact

1. I accept that applicant A is a Catholic, that he attended church regularly in Vietnam, that he faced some occasional minor problems with classmates and work colleges because of his religion and that he would continue to practise his faith if he returned to China.   I strongly doubt that his discharge from the military in 1998 had anything to do with his religion, but even if his Catholic faith played some role in this, there is no suggestion that he faced any serious problems in the following 24 years related to his discharge.

   Conclusions in relation to religion

2. At the hearing the applicant appeared to withdraw the claim that he feared harm because of his Catholic faith if he returned to Vietnam. He agreed with evidence I put to him which states that Catholics are not generally at risk of harm in Vietnam because of their faith and said that he would not have left the country if he had not been involved in the violence in [Village 2] in 2012. Nevertheless, I have considered whether he would be at risk of harm on return to Vietnam because of his Catholic faith.

3. According to advice from DFAT issued in January 2022[3], while Vietnam is officially an atheist state, the Constitution guarantees a right to freedom of belief and religion, but places some restrictions on religious practices.

   [3]These extracts are taken from the DFAT Country Information Report Vietnam 11 January 2022.

4. About 6 per cent of the Vietnamese population is Catholic. 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. Some Catholics in remote areas have trouble accessing a priest, whether this is because authorities will not allow it or because of difficulty travelling to a remote area is unclear. Catholics who are perceived to challenge the policies or interests of the Communist Party of Vietnam or engage in political activism, face a moderate risk of official discrimination from authorities or their proxies. This may include arrest or violence.

5. In general, relationships between the Government and the Catholic Church are cordial. The Church is united and can deal with the Government at a national level. Provincial authorities might also have relationships at the diocesan level; sometimes local relationships are better than the national level relationship.

6. Several in-country sources told DFAT that religious intolerance between people of different faiths is not an everyday problem in Vietnam and Catholics generally do not experience societal discrimination. However, problems related to discrimination cannot be ruled out entirely.

7. Pew Research conducted a study in 2016 of global restrictions on religion that included an analysis of ‘social hostility’ towards followers of different faiths. According to their report Vietnam had one of the lowest levels of social hostility of the countries surveyed.

8. After considering all of the evidence, I am not satisfied that there is a real chance that applicant A would be unable to practise his religion in the manner he wishes if he returned to Ha Tinh province in Vietnam or that he would face serious or significant harm within the reasonably foreseeable future merely because he is a Catholic.

9. In reaching I have considered the claim that applicant A was discharged from the army in 1998 because he is a Catholic.  Current laws on conscription in Vietnam state that all men been the ages of 18 and 25 must complete military service. This appears to have been the case in 1998[4]. While applicant A may believe he was discharged from the militarily early because of his religion, it appears unlikely that this was the case. In any event, there is no suggestion that his early discharge caused him any further problems or that he fears harm on return to Vietnam for any reason linked to his military service in 1998.

   [4] See for example, War Resisters' International (wri-irg.org), A’s activities in [Village 2]

   Involvement in the events prior to 1 July 2012

10. Applicant A claims that he visited his parents in [Village 2] about three times a year for between one week and three weeks. Prior to 2010 he attended churches with them in nearby villages. From about 2010 they attended services in [Village 2]. These services were conducted by a visiting priest called [Father C].

11. In a statement dated 4 September 2013, applicant A said that [Father C] asked him to act as a security guard to prevent the police from entering the chapel in [Village 2] in about July 2012. There is no suggestion that he was asked to protect the chapel in [Village 2] or elsewhere prior to that time.

12. According to the first delegate’s decision, during an interview held on 1 February 2016 he  first stated that the event during which he had been asked to protect the chapel was a celebration for Saint Jean Baptiste. The delegate noted that according to reports the celebration for Saint Jean Baptiste was held on 24 June 2012, not in July. He stated that the event in which he had been involved was held on 1 July 2012.

13. In a letter dated 2 July 2020 responding to questions from the second delegate, applicant A said that he had developed a good relationship with [Father C] and [Father C] had asked him to act as a security guard whenever there was a major event. He did this on multiple occasions from 2010 until 2012. He did not mention these activities in his earlier submissions because he had been required to provide a lot of information and some details had slipped his mind.

14. Country information confirms that Catholics in [Village 2] had been experiencing problems prior to July 2012[5].  According to reports, local people built a chapel on ground donated to the church by a local Catholic. [Father D] and [Father C] visited [Village 2] and conducted mass in the chapel. Their attempts to conduct services were frequently disrupted from at least mid-2011. In November 2011, the authorities twice mobilised large groups of people who gathered outside the chapel to disrupt services. [In] November 2011, [an incident] caused heavy damage to the site. Following this, the situation was calm and parishioners were able to attend normal religious activities until about June 2012 when local authorities again harassed local Catholics in an attempt to prevent them from worshipping. Groups of young men regularly gathered to throw stones at worshippers and to block roads to religious sites in the area. Officials reportedly visited homes of Catholics asking them to sign pledges not to "illegally celebrate Mass”. On one occasion about [number] officials attempted to disrupt mass being held at the church in [Village 2], but failed. The harassment continued and [in] June 2012 there was a significant confrontation between Catholics and [number] people sent to disrupt a mass being conducted by [Father C]. [Father C] refused to accompany officials to the police station and in retaliation they used loud speakers to disrupt the mass and gangs of youth harassed parishioners.

    [5] [Diocese 1][Source deleted]

15. At the hearing I noted that independent evidence suggested that there had been numerous problems in the [Village 2] area prior to 1 July 2012 and asked applicant A if he had been present during of these incidents. He said that the local government was trying to stop the villagers holding mass at the chapel. I advised him that I was aware of this, but I was interested in his personal experiences. I asked several times if he had been present during any incidents, but he repeatedly responded with statements about the general situation. I advised him that given his failure to provide evidence to the contrary, I would assume he had not been present when the local authorities caused problems prior to 1 July 2012. He then said that there had been problems at other churches in the area and he had been present during a few of these incidents. I asked him to tell me about the first incident he could recall. He said that about two weeks before the July 2012 incident officials had tried to stop the mass in [Village 2]. When asked for more information, he said it had been a minor incident and his only involvement was to attend the service. When I asked for information about incidents at other churches, he said there had been other incidents about two or three weeks before the July 2012 event, but it was a long time ago and he could not recall any details.  

16. I observed that there appeared to be a large number of Catholics in [Village 2] and asked why [Father C] asked him to serve as a security guard given that he only visited the village occasionally. He said that his parents lived in the area and he had developed a good relationship with [Father C]. I noted that he had previously claimed that he had served as a security guard at the chapel on a number of occasions before 1 July 2012 and asked him to tell me about these occasions. He said that the priest assigned him to be a security guard when there were incidents. I observed that our recent discussion seemed to suggest that he had not been at the chapel often prior to July 2012 and that he had not served as a security guard anywhere when there were problems prior to July 2012. He said that he was present during a minor incident about two weeks prior to 1 July 2012 and again on 1 July 2012. I asked if he wanted to add anything about his role in events prior to 1 July 2012. He said that the local government tried to stop the parishioners from worshipping, but made no further submissions regarding his involvement in these events.

17. I noted that applicant A had not mentioned serving as a guard at the chapel in [Village 2] prior to 1 July 2012 prior to his July 2020 statement and advised him that this and the fact that his evidence at the hearing regarding events prior to July 2012 was very vague caused me to doubt that he had any involvement in protecting the [Village 2] chapel prior to July 2012. He said that his involvement had been a long time ago and he had difficulty remembering what had happened.

    Findings of fact in relation to the period before July 2012

18. I do not accept that [Father C] asked applicant A to serve as a security guard during events in [Village 2] prior to July 2012 or that he served as a security guard at any event prior to July 2012 or that he was present when there was an attempt to disrupt services in [Village 2] in the two or three weeks prior to July 2012. If he had been asked to serve as a security guard as early as 2010 and had acted in that role prior to July 2012, I believe he would have mentioned this before 2020. And while I acknowledge that it is now over 10 years since these events and that he suffers from diabetes, if these claims were true I believe he would have been able to provide a reasonably coherent and convincing account of his activities when asked to do so at the hearing. In addition, I find the claim that [Father C] asked him to serve as a security during major events implausible as there is a reasonably large Catholic population in the area and he only visited about three times a year. While I would not have rejected his claims for this reason alone, I find it a further indication that he has not provided an honest account of events.

    Involvement in the events of 1 July 2012

19. Central to applicant A’s case is the claim that he acted as a security guard when the chapel at [Village 2] was attacked on 1 July 2012.

20. According to independent reports (see references above), [Father C] was scheduled to conduct mass in [Village 2] on Sunday 1 July 2012. At about midday a group of public security agents and local non-Catholic residents entered the chapel and attacked two nuns who were the only people inside at the time. By about 1.30 pm some [number] parishioners had managed to enter the chapel, but were forced out by the mob which ransacked the church. At about 2 pm [Father C] arrived. Officials attempted to persuade him not to hold a service, but he refused. This resulted in violent clashes between the parishioners and the mob which had entered the area. During the ongoing violence more soldiers and police arrived. Some parishioners were injured, one severely.  A statue of the Virgin Mary was smashed.  The parishioners rang chapel bells which called Catholics from surrounding areas who came to help. There were a number of arrests and some people were injured. The government forces then locked themselves in the chapel, barring [Father C] and the parishioners from entering. [Father C] conducted mass in the courtyard outside the chapel. The mass ended at about 4.30 pm.  At that time the government delegated some officials to negotiate with local Catholics. The parishioners demanded the release of those arrested earlier in the day. Order was finally restored at 3.30am on 2 July 2012.

21. On 4 July 2012 the Office of the Bishop of [Diocese 1] issued an announcement to local priests and parishioners and wrote to the People’s Committee responsible for [Village 2] district pointing out that the parishioners had broken no laws and had been violently attacked. Officials later responded denying responsibility for the incident and blaming the priests, parishioners and a local mob. A number of Catholics appear to have been charged with creating a disturbance and resisting officials. Others involved in the violence appear to have been summoned to the police station, but did not attend.

22. In his September 2013 statement, applicant A said [Father C] said that a group of [number] people were inside the church praying and listening to the priest and he was standing outside the door when lots of police vans and soldiers arrived and tried to enter the church. He tried to stop them but he was threatened and hit. He hit back, but in the end he had no choice but to step aside. The police and soldiers then beat the worshipers with their batons and smashed the religious statues in the church. They arrested a lot of people and took them to jail. Others were taken to hospital.

23. According to the first delegate’s decision, during an interview in February 2016, applicant A said that many people were at the chapel when he arrived at about 8 am. [Father C] was inside praying with a number of people when the police and army came at about 11am and attacked them. The applicant and others tried to resist, but they were not successful. The police and army entered the chapel and smashed statues and tried to destroy the church. At some time the attackers locked themselves in a room.  After that they left and it was quiet. Applicant A and other parishioners cleaned up the mess, after which he rode home on his motorcycle.

24. The delegate pointed out that applicant A’s account of events was at odds with country information available to her. She noted in particular that not many people were at the chapel when the mob first arrived, that the priest arrived after the violence began, that he was not able to enter the chapel and that he conducted mass in the courtyard outside. She also noted that applicant A had failed to mention what she believed were significant details, such as the stoning of the chapel, the use of loud speakers to disrupt the mass and the arrival of Catholics from neighbouring areas after the violence began. In response, applicant A said that some of the information put to him by the delegate was accurate, but not all reports on the events of 1 July 2012 were correct. He also said that he could not recall all of the details of the day.

25. The applicant attended an interview with the second delegate on 19 June 2020. According to the second delegate’s decision he said that he had difficulty recalling the events in 2012 due to the passage of time and his ill-health (he has diabetes).  He recalled that when he arrived at the chapel in the afternoon, he saw police and soldiers at the entrance to the building. He tried to stop them from entering, but he was overwhelmed. They were using a loud speaker to disrupt the people who were reciting the Bible inside the church.  They rushed into the chapel, destroying the door. [Father C] arrived about an hour later and began to conduct mass inside the chapel. The delegate asked how this had been possible given the presence of police and others inside the chapel at that time. Applicant A maintained that [Father C] conducted the mass inside the chapel, but did not provide any further explanation. He said that the mass finished at about 3 or 4pm. After the incident ended and everyone had left, the priest told him to run away and hide.

26. Following the interview, applicant A was asked to respond in writing to additional questions.  According to his response, he arrived at the chapel at around 11am when only a few people were present and there were no police or soldiers. He took up his post outside the chapel. Police and army officers began to arrive, then [Father C] arrived at around 1pm. The police turned on loudspeakers and directed them at the chapel. Some police entered the chapel. They tried to prevent [Father C] from entering the chapel, but the parishioners prevented them from getting close to him and he entered the chapel where he conducted the mass.  During the incident there was a fight between the police and parishioners including the applicant. Some people were injured and some were arrested. Applicant A was not arrested because he was not from the local area. He left the chapel and walked to his parents’ house which was about [number] metres away and then rode home on his motorcycle. The following day, he returned to meet with [Father C] who had been interviewed by police. [Father C] warned him that he would be arrested if he did not go into hiding. His parents were interviewed by the police and provided them with his details, which is how they located his home. After that he hid at a house near his home.  His wife told him that the police had been to his house looking for him.

27. At the hearing the applicant said that the military and police had come to repress the people between about 2pm and 4pm on 1 July 2012.  He left at about 4pm because the conflict had become very heated and many people had been arrested. The violence was continuing when he left.  [Father C] spoke to him personally and told him to leave or he would be arrested. He also spoke to other people who were directly involved in the violence. I noted that he had previously stated that [Father C] had warned him that he would be arrested the day after the incident. He said that this was incorrect.

28. I observed that it appeared that a number of people had been arrested on the day of the incident and asked how he had avoided a similar fate if he had been one of the main people involved in the conflict with police. He said it was because he ran away and hid. I asked if he knew what had happened to the people who were arrested on the day. He said that he had read reports that they had been taken to a police station but he did not have any personal knowledge of what happened.

29. I asked applicant A if anything had happened between the time he left [Village 2] in early July 2012 and his departure in September 2012 which made him believe it was not safe for him to remain in Vietnam.  He said that some people had been arrested and the priest had told him to hide or he would also be arrested, so he had gone into hiding.  I advised him I understood why these arrests might cause him to go into hiding in the immediate aftermath of the incident, but others who had been involved on the day did not appear to have experienced ongoing problems and I did not understand why he had remained in hiding and fled to Australia. He did not answer that question, but said that he had joined an anti-communist group called the [Diocese 1] group in 2011 (see below).

1. Later in the hearing I asked applicant A how the authorities had identified him as a participant in the events of 1 July 2012. He said that he was not sure. He said that the police had gone to his parents’ house in [Village 2] to ask about him, but his parents said that they did not know where he was. I noted that he had previously stated that his parents had given the police his address.  He said that this was not correct.  He added that the police had come to the home he shared with his wife and children many times to look for him. 

2. I advised applicant A that I had a number of concerns about the evidence he had provided regarding in the events on 1 July 2012. I noted that some of his evidence appeared to be at odds with other accounts of events. For example, he had claimed that [Father C] conducted mass inside the chapel while other accounts said that he was in the courtyard. The applicant said that he had been under pressure when he was interviewed and he might have made some mistakes. I also noted that his February 2016 statement that the violence ended and the police left on the afternoon of 1 July 2012, after which he helped to clean up, was at odds with the independent evidence which indicated that negotiations continued until the early hours of the morning of 2 July 2012. The applicant said that he did not know what happened after he left.

3. In support of his claims the events of 1 July 2012 applicant A provided a copy of the letter from the [Archdiocese] dated 4 July 2012. He claims that this letter was sent to his family and that it confirms that he was involved in the event in [Village 2] on 1 July 2012. There is no mention of applicant A in the letter.  It was addressed to priests and parishioners in the Archdiocese which clearly indicates that it was widely distributed in the Catholic community. I do not accept that the fact that applicant A obtained a copy  of the letter confirms that he was involved in the events of 1 July 2012 in [Village 2] or that he is at risk of harm on return to Vietnam for that reason.

4. The applicant has also provided three letters purported to be from [Father C]:

   ·     a letter dated 13 September 2016, which states that [Father C] served in the region that included [Village 2] from 2010 until 2013, that the authorities frequently caused problems for Catholics in that area, including on Sunday 2 July 2012 when over 1,000 police attacked the church in [Village 2], damaged church property and beat him and others. It adds that, from what he was told, the applicant was at the parish of [Village 2] on 2 July 2012 and was followed and threatened so he had to flee the country.

   ·     a letter dated 18 January 2018, which states that the letter dated 13 September 2016 mistakenly stated that the incident in [Village 2] occurred on 2 July 2012, not 1 July 2012.

   ·     a letter dated 23 July 2020, which repeats the information in the September 2016 letter and adds that while [Father C] was in [Village 2] the applicant visited him and helped him. On 1 July 2012, the applicant ‘strongly protected’ him and as a result he was beaten. After that he was watched. [Father C] advised him to run away. If he returned to Vietnam he would be at risk of harm.

5. After discussing all of applicant A’s claims and advising him that I had difficulty accepting many of these claims, I advised him that I also had concerns about the genuineness of the letters from [Father C]. I noted that the first letter did not suggest that he and [Father C] were friends and appeared to indicate [Father C] did not have first-hand knowledge of his presence in [Village 2] on 1 July 2012 and the other letters appeared to have been written to rectify errors in the first letter. I also advised him that while I was aware that people had been arrested on 1 July 2012 and that some people who were seen as anti-government activists might have been arrested at a later time, it was not my understanding that people continued to be at risk of arrest merely because they were present on the day. The applicant said that [Father C] did not lie and I could use the information in the letters to contact him by telephone or email. I observed that there were often difficulties identifying witnesses outside Australia and advised him that I was not currently intending to contact [Father C] or anyone sin Vietnam. However, I would consider his request and take account of all of his evidence before reaching a decision.

6. The applicant also provided a letter dated 16 January 2017 from his wife. It states that she is certain that the applicant was present at the mass conducted in [Village 2] on 1 July 2012. She said that [Father C] had sent a letter to her family to pray for them and protect them. After the incident the secret police visited her home 4 or 5 times looking for her husband and told her that he would be arrested because he had fought against officials on duty. She said that the police had continued to visit her house after the applicant left and would arrest him if he returned.

7. In her submission of June 2020 applicant B said that she recalled seeing police around her home before she and her father left for his safety. She said that now she is older she had learned more about what happened to applicant A in Vietnam and believes he was involved in protecting the church in [Village 2] when it was attacked by police who hurt people because they were following orders from the government.

   Findings of fact in relation to the event of 1 July 2012

8. As pointed out at the hearing, applicant A’s account of the events of 1 July 2012 differs in significant ways from other reports of the day. During his interview with the delegate in 2016 he suggested that this was because not all reports on the events were accurate. This may be. However, the Democratic Voice of Vietnam report, which provided much of the information regarding the events of the day, is detailed and the references indicate that it drew on first-hand accounts of events. While this does not guarantee total accuracy, in my view there is no reason to suppose that details such as when [Father C] and the police arrived and where the service was held are wrong. I accept that the account set out above provides a reasonably accurate account of the incident.

9. While it is not surprising that there would be some confusion regarding what exactly happened during a chaotic event such as the conflict in [Village 2] on 1 July 2012 appears to have been, I do not accept that applicant A would have been unaware that [Father C] arrived sometime after violence began and had conducted mass in the courtyard because he could not enter the chapel if he had been present on the day, particularly if he was acting as a security guard. I also note that after stating that [Father C] was at the chapel before the violence began in his written and oral evidence prior to 2020, he changed his evidence during his interview with the second delegate and said that the priest had arrived after the violence began. I believe he changed his evidence to overcome the problems with his earlier account of events.

10. While this alone is sufficient for me to conclude that applicant A was not at the [Village 2] chapel on 1 July 2012, it is not the only problem with his evidence.  For example, in February 2016 he said that the police and army left sometime on 1 July 2012, after which it was quiet and he helped clean up before returning to his home. According to the independent evidence, the police remained at the chapel until the early hours of the following morning. At the hearing he said that the violence was continuing when he left the area at 4pm on 1 July 2012. In addition, according to his letter dated 2 July 2020, [Father C] advised him to go into hiding when he returned to [Village 2] on the day after the incident and the authorities were able to locate him because his parents had given them his address. At the hearing he said that both of these statements were incorrect. He claimed that [Father C] advised him to go into hiding before he left on 1 July 2012 and that his parents had not given his address to officials.  

11. In reaching the conclusions set out above, I have noted applicant A’s claim that he had difficulty recalling events because of the passage of time and his ill-health. However, while I acknowledge that it is 10 years since the incident in [Village 2], that interviews and hearings are stressful situations and that the applicant A’s poor health may have impacted on his ability to provide evidence, I do not accept that the problems set out above can be accounted for in this manner. His first statement was written in 2013, slightly more than a year after the incident, when the events of 1 July 2012 would have been reasonably fresh in his mind.  Furthermore, even 10 years after the event, I do not believe that he would have been confused about whether it was quiet or violent when he left the chapel, whether he helped to clean up before leaving or whether he returned the following day. I also note that the submission dated 2 July 2020 was prepared with the assistance of his then representative and contained a level of detail which suggests that it was prepared with care and unlikely to contain claims not provided by the applicant himself.

12. I have also considered the letters purporting to be from [Father C] but I am not satisfied that they are genuine. As discussed above and below, I did not find applicant A to be a truthful or a credible witness. The letters all seek to support claims which I have found to lack credibility, their content has changed over time and I do not find them persuasive. As pointed out at the hearing, there is nothing in the first letter which suggests that applicant A was known to [Father C] or that [Father C] could confirm his presence in [Village 2] on 1 July 2012. If applicant had served as a security guard at the chapel in [Village 2] on 1 July 2012 at [Father C]’s request, I believe this would have been clearly stated in the letter. The fact that the letter gives the wrong date for the attack in [Village 2] casts further doubt on its authenticity.  The second and third letters do nothing more than attempt to overcome these problems. All of the letters could easily have been created by anyone who speaks Vietnamese and has access to a computer and printer. The Vietnamese versions of the letters are printed on plain paper and the only identifying mark is a simple stamp. I believe that these letters were manufactured by applicant A or on his instructions and I have given them no weight.

13. With regard to the letter from applicant A’s wife, I note that she is not a disinterested party and her letter seeks to support claims which I have found to lack credibility. While I have considered her letter, I do not accept that it contains an honest account of the problems faced by applicant A in Vietnam and I have given it no weight.

14. Finally I have noted applicant B’s evidence regarding the events preceding her departure and her current understanding of the reasons applicant B left Vietnam. While I do not doubt her sincerity she was only [age] years old when she left her homeland and it is clear from her statement that it was only sometime after her departure from Vietnam that she was told about applicant A’s problems prior to departure. In these circumstances I have given no weight to her evidence regarding the events in July 2012.

15. The applicant also provided character references from [Ms E] and [Reverend F], Bishop of [location] Catholic Diocese dated 10 June 2020. There is no suggestion that either of them knew the applicant in Vietnam or has any first-hand knowledge of his activities or problems in his homeland. 

    Conclusions in relation to the applicant’s involvement with [Father C] and the chapel in [Village 2]

16. I accept that applicant A may have occasionally attended church in [Village 2] when visiting his parents and that he may have met [Father C]. However, after considering all of the evidence, I do not accept that he was a close associate of [Father C], that he was asked to serve as a security guard at any church or chapel in the [Village 2] area at any time or that he was present when the chapel in [Village 2] was attacked on 1 July 2012 or at any other time.  I believe that he concocted these claims to support his claim for protection and obtain residency in Australia. It follows that I do not accept that the police came to his home or his parents’ home to arrest him at any time after July 2012 or I do not accept that he was of interest to the police or anyone else in Vietnam for any reason related to his visits to [Village 2].

    Applicant A’s political opinion

17. There is nothing in applicant A’s 2013 statement or his evidence to the first delegate which suggests that he was involved in political groups or activities of any kind prior to his departure from Vietnam or since arriving in Australia. During his interview with the second delegate in 2020 he said that he had a bad political record because he had been involved in protests relating to religion and that he wanted to protest against the Vietnamese government and intended to join the Viet Tan party in future. When asked about his political activities in Vietnam, the only incident applicant A mentioned was the incident on 1 July 2012.

18. At the hearing the applicant claimed that he had joined an anti-communist group called the [Diocese 1] group in Vietnam in 2011. He said that the group was led by [Father C] and another priest called [Father G].  I observed that the applicant did not live in [Diocese 1] and only visited the area occasionally, and asked what role he had played in the group. He said he was an ordinary member and like other members he was involved in fighting communism. When asked for details he said that he fought for religious people who had been persecuted and that he followed the orders of the priests to protect religious people.  He added that since his departure from Vietnam the priests had been prevented from doing anything.

19. I advised applicant A that while I was aware that [Father C] had been outspoken in support of religious freedom and other issues,[6] there was no country information before me which suggests that he has established a political party or group. I also noted that he had not mentioned this group in his earlier submissions, which made me doubt that his claims were true. He said that prior to the recommenced hearing on 28 March 2022 he had contacted the priests involved and obtained permission to reveal the existence of the group and his involvement with it. I observed that even if he had been bound by some kind of secrecy agreement prior to the hearing, he could have spoken in general terms of his involvement with an anti-communist group, but he had not done so. He said more information was available on the group’s website. I invited him to provide additional evidence following the hearing if he wished. No further information was received.

    [6] [Source deleted]

20. Later in the hearing applicant A said that [Father C] had come to Australia as a tourist in 2013 and had visited him. He had not been able to mention this previously because he did not have permission. I asked him for more information about the visit. He said that he could not tell me because it involved politics and it was secret. I advised him that any information he provided would be kept confidential. I also advised him that if he was not prepared to tell me about the visit and its relevance to his case, I could not take it into account.  He failed to provide any further information.

21. I asked the applicant if he had been involved in any political activities in Australia which might cause him problems if he returned to Vietnam. He said that he belonged to the [Diocese 1] group and he often contacted the leader to discuss the situation in Vietnam. He said that there were many members of the group in Australia, but his role was secret and he had never been involved in public activities in Australia. He added that the group sometimes sends money to support people in Vietnam. No independent evidence of the existence of this group or applicant A’s involvement with it has been provided.

    Findings of fact

22. I do not accept the applicant has had any involvement in an anti-government or anti-communist party or group of any kind in Vietnam or in Australia. If he had been involved in a political group or political activities of any kind in Vietnam or Australia I believe he would have mentioned this, at least in general terms, prior to the hearing.  In these circumstances and in light of my findings on the credibility of his claims regarding his relationship with [Father C] and his involvement with problems at the chapel in [Village 2] in 2012, I find that he also concocted this to support his claim for protection in Australia.

23. In reaching this conclusion I have considered the undated reference from [Ms H], [Representative of Organisation 1] and President of [Organisation 2] in Queensland, which states that applicant A had attended gatherings of Vietnamese human rights supporter groups in Queensland which could cause some problems on return. No details were provided of when or how often the applicant attended these gatherings. When asked about his activities in Australia at the hearing, applicant A did not mention these gatherings. He said that he had not been involved in any public activities in Australia. In these circumstances, while it is possible that he attended Vietnamese community gatherings which had some element of support for human rights at some time in Australia, I do not accept that he has ever been an active or public supporter of Vietnamese human rights groups or activities while in Australia.  

24. I have also considered applicant B’s evidence that she and her father had posted items with a political or religious content on his Facebook page sometime before early 2018 (see below). However, as discussed below, I do not applicant B’s evidence regarding this. Applicant A has never claimed or suggested that he posted items likely to cause him problems in Vietnam and I do not accept that this occurred.

    Conclusions

25. By way of context, Vietnam is a one-party state, opposition parties are effectively illegal and threats to the Communist Party of Vietnam’s legitimacy are seen as threats to the state and are not tolerated.  Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place, but most public protest is about practical local issues, such as environmental concerns, development and transport.  According to DFAT, it is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when this might occur. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.

26. There is no credible evidence before me which suggests that applicant A has been actively involved in anti-Vietnamese government groups or activities in Australia or Vietnam. At most he has attended a few community events, which may have had some human rights component, some years ago. In my view the evidence does not suggest that the Vietnamese authorities would have an adverse interest in him because of these past activities if he returned to Vietnam. I am not satisfied that he faces a real chance of experiencing serious or significant harm because of these past activities if he returns to Vietnam now or in the reasonably foreseeable future.   

27. I have also considered the possibility that applicant A would become politically active on return to Vietnam. However, there is no credible evidence before me which suggests that he has had any real involvement in political groups or activities Vietnam or Australia. It is clear from [Ms H]’s letter that there are anti-Vietnamese government political groups in Australia, which he could have joined and actively supported had he wished to do so, but at most he participated in a small number of community gatherings some years ago. In these circumstance and in light of my findings on his overall scredibility and willingness to concoct claims in support of his application for protection, I am not satisfied that he wishes or intends to become involved in anti-Vietnamese government groups or activities in Australia or that he would seek to join an anti-government party or group or become active in anti-government activities if he returned to Vietnam.

    Applicant A’s illegal departure and status as a failed asylum seeker

159.   Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons set out above the Tribunal is not satisfied that there is a real risk that either of them will suffer significant harm as defined in Australia law if they return to Vietnam and it is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either of them being removed from Australia to a Vietnam, there is a real risk that they will suffer significant harm. The Tribunal is therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

160.   There is no suggestion that either 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 applicants do not satisfy the criteria in s 36(2).

DECISIONS IN RELATION TO 2013024 AND 2013028

161.   For the reasons given above the Tribunal is not satisfied that either of the applicants faces a real chance of experiencing serious harm as defined in the legislation and it is therefore not satisfied that they either of them has a well-founded fear of persecution if they return to Vietnam within the reasonably foreseeable future. They are therefore not persons in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees.  The Tribunal is therefore not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).

162.   Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons set out above the Tribunal is not satisfied that there is a real risk that either of them will suffer significant harm as defined in Australia law if they return to Vietnam and it is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either of them being removed from Australia to a Vietnam, there is a real risk that they will suffer significant harm. The Tribunal is therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

163.   There is no suggestion that either 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 applicants do not satisfy the criteria in s 36(2).

DECISION

164.   The Tribunal affirms the decisions not to grant the applicants protection visas in:

a. matter 2013024 (Temporary Protection visa application made on 17 September 2013; and

b. matter 2013028 (Temporary Protection visa application made on 17 September 2013; and

c. matter 1929335 (Temporary Protection visa application made on 3 November 2015.

Roslyn Smidt
Member