1929526 (Refugee)
[2022] AATA 4091
•12 August 2022
1929526 (Refugee) [2022] AATA 4091 (12 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1929526
COUNTRY OF REFERENCE: Vietnam
MEMBER:Kate Chapple
DATE:12 August 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.
Statement made on 12 August 2022 at 1:53pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – threatened with arrest and incarceration for non-payment of bribes – fear of loan sharks – demonstrated against construction of Formosa factory – questioned by police – delay in applying for protection – vague and inconsistent evidence – credibility issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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
BACKGROUND
The applicants claim to be married and citizens of Vietnam.
The Department’s movement records show that the applicants first arrived in Australia [in] October 2014 each as a holder of a Visitor FA-600 visa. They have both remained onshore since.
On 5 October 2016, the main applicant lodged an application with the Department for a Protection XA subclass 866 Visa, in which the main applicant was listed as applicant 1 and the secondary applicant was listed as applicant 2 (‘the wife’s protection visa application).
On 5 October 2016, the secondary applicant lodged an application with the Department for a Protection XA subclass 866 Visa, in which the secondary applicant was listed as applicant 1 and the main applicant was listed as applicant 2 (‘the husband’s protection visa application’).
The claims for protection set out in the wife’s protection visa application and the husband’s protection visa application are the same.
On 13 October 2016, the Department granted the applicants Bridging C WC-030 visas (both subject to no work conditions), which remain current.
On 15 October 2019, the Minister’s delegate issued to the applicants each a letter of notification of refusal of application for a protection visa attaching the Department’s decision record in relation to the wife’s protection visa application (‘the delegate’s refusal decision’).
Upon inquiry by the Tribunal, the Department confirmed the existence of one only Department file, bearing reference number [specified], and one only corresponding Department decision record, that being the decision record relating to the delegate’s refusal decision. Based on this advice, it appears to the Tribunal there is no Department decision record in relation to the husband’s protection visa application.
On 18 October 2019, a migration agent (‘the representative’) appointed by the applicants lodged on their behalf applications with the Tribunal for merits review of the delegate’s refusal decision.
APPLICATION FOR REVIEW
This decision record relates to applications for review of the delegate’s refusal decision.
CLAIMS AND EVIDENCE
EVIDENCE BEFORE THE DEPARTMENT
Protection visa application
The wife’s protection visa application sets out (inter alia) the following details:
11.1.The main applicant is a female born in [year] in Ha Tinh, Vietnam who is a citizen of Vietnam; of the Kinh ethnic group and of no religion; and speaks, reads, and writes Vietnamese. The secondary applicant is a male born in [year] in Ha Tinh, Vietnam who is a citizen of Vietnam; of the Kinh ethnic group and of no religion; and speaks, reads, and writes Vietnamese.
11.2.The applicants are married. They have a son (born [year]) living (at the time of lodgement of the wife’s protection visa application) in Australia on a student visa. They have two other sons (born [year] and [year]) and a daughter (born [year]) living in Ha Tinh, Vietnam. The main applicant’s parents and two brothers, and the secondary applicant’s parents, sister and brother also live in Ha Tinh, Vietnam.
11.3.The applicants were both school educated in Ha Tinh, Vietnam over the period [year] to [year]. They were self-employed in a [Product 1] business in Ha Tinh over the period 1997 to 2010, and in [another] business in Ha Tinh over the period 2010 to October 2014 when they departed Vietnam for Australia. The applicants have not worked since coming to Australia.
The wife’s protection visa application sets out the main applicant’s claims for protection extracted below:
12.1.My husband and I had made several attempts to leave Vietnam, looking for a way to apply for refugee status. My family and I had planned to leave Vietnam for many years because of the way the government controlling our business. However, I acknowledged at the time the risk of leaving the country as a whole family. Therefore, I decided to leave one by one looking for freedom first and I would like to sponsor my other children afterwards.
12.2.I made the decision to leave Vietnam because I disliked the Vietnamese regime a lot.
12.3.I witnessed the serious corruption within the Vietnamese Government and its officials. For the last ten years, operating my business in Vietnam, I must pay bribes to government officials so that my business can sustain.
12.4.The government labelled us as capitalist of the west and constantly requested me to attend their regular night-time meetings and pay taxes. If I failed to do so, I would be put in re-education camp for hard labour as punishment.
12.5.I find it very hard to operate my business in Vietnam and to remain silent to accept the government’s unfair policies towards private businesses.
12.6.We often protested against the government. On these occasions, we were sent Caution Notices asking us to present ourselves to the local authorities.
12.7.The police made threats that we would be arrested because we don’t follow the government officials and we refused to pay their taxes.
12.8.We were very scared at the time so declared ourselves bankrupt and ran away from our hometown. We escaped to Saigon and looked for a way to leave Vietnam, otherwise we would be arrested and imprisoned.
12.9.We borrowed money through a loan shark to buy our way to leave Vietnam. We have to borrow money with high interest to be able to live and care for family. If I could not pay back in time, I will be subject to loan sharks who will try to kill me because I cannot afford to pay them back.
12.10.I have experienced psychological harm while conducting business in Vietnam. My family and I suffered stress because of the ill treatment of the government towards small business owners like myself. I must pay bribe to the local authorities in order to win any commercial project. This has gradually caused my nervous breakdown every time I applied to undertake a new business project. I feel sick every time I had to pay money in advance to the authorities prior to competing any project advertised by the government. Although my family and I were not beaten physically, mentally we were obsessed by the unfair system imposed on us as business people.
12.11.My relatives told me on the phone recently that the local authorities are looking for me and they are now confiscating all the computers and assets from my business because I have left Vietnam.
12.12.If I return to Vietnam, the local Vietnamese government will turn my life and my business upside down because I have discontinued my business with them. I will be arrested because I have not maintained the continuation of the project and the authorities will put me in the re-education together with other business people whom they’ve labelled as traitors of Vietnam. I will not be able to operate my business again, and my family will not be able to survive as we will have no income.
12.13.We don’t have any houses to live, and money to use. My family have to loan money with high interest to live and care for my family. As I could not pay in time now, I will be the target of the loan sharks who will try to kill me wherever they could see me.
12.14.The Communist party is the only government authority controlling us. There is nowhere we could turn for help. If we sought help with any organisation, we would be reported to the government and the authorities would place us in the re-education camp.
12.15.Corruption in Vietnam society is a persistent problem. It does not matter where I want to move to, all other parts of the country are the same.
Supporting documents
Documentary evidence of the main applicant’s identity: passport biodata page, Vietnamese passport no. [number], expiring [2024].
Documentary evidence of the secondary applicant’s identity: passport biodata page, Vietnamese passport no. [number], expiring [2024].
(Original Re-registered) Marriage Certificate dated 01/2009 certifying the marriage between the applicants (marriage date not recorded).
Appearance Notices from the [District] Police in respect of the main applicant and secondary applicant dated 04.04.14 and 05.08.14.
The interview
The Department did not offer the applicants an interview.
EVIDENCE BEFORE THE TRIBUNAL
Departmental documents
Department decision record relating to the delegate’s refusal decision.
Department case file.
Department internal records relating to the applicants.
Application for review
On 18 October 2019, the representative lodged applications with the Tribunal on behalf of the applicants for merits review of the delegate’s refusal decision.
Following telephone and email contact with the Tribunal, on 13 July 2022, the representative wrote to the Tribunal confirming the agreement of the applicants to participate in a joint hearing of the review applications.
On 13 July 2022, the Tribunal wrote to the representative inviting the applicants to attend a joint hearing of the review applications on 4 August 2022 and to provide pre-hearing submissions.
On 4 August 2022, the Tribunal wrote to the representative inviting the applicants to attend the resumption of an adjourned joint hearing of the review applications on 8 August 2022 and to provide pre-hearing submissions.
Pre-hearing submissions
On 25 July 2022, the representative provided to the Tribunal a Response to hearing invitation dated 13 July 2022 confirming (inter alia) that: the applicants would take part in the joint hearing on 4 August 2022; the representative would not be participating in the joint hearing; the applicants did not request that the Tribunal take oral evidence from another person; and a submission setting out all claims will be provided in due course prior to the joint hearing.
On 28 July 2022, the secondary applicant provided to the Tribunal an undated statutory declaration made by the secondary applicant, however signed (on the face of it) by both applicants, translated from Vietnamese to English, and stamped by a certified translator on 27 July 2022 (‘the statutory declaration’) setting out the following numbered paragraphs of claims in support of the applicants’ claims for protection:
P1.My wife and I completely dislike the current Vietnamese regime because we had been in Vietnam for many years and we witnessed the strong corruption within the Vietnamese Government and its officials.
P2.We must pay bribes to government officials daily, in order to sustain our business and family business could be carried on. This has always caused my wife and I to have nervous breakdown every day.
P3.We were considered the capitalists in the society by the local government, and we were frequently requested to attend regular night time meetings and to pay taxes. If we failed to do so, we would be charged and detained in the camps to learn the theory of socialist and communist policies. We often called those camps as "re-education camps".
P4.The Police always threatened my family that we would be arrested if we were not compliant with the Government officials such as if we refused to pay their required taxes.
P5.My wife and I found it was very hard to operate our family business in Vietnam but we had no choice but to remain silent to accept the government's unfair policies towards private businesses.
P6.Although we were not physically harmed, but we suffered mental harm due to the Vietnamese Government's unfair system imposed on the business people like us.
P7.We often joined the protest against the Government whenever we could. On these occasions, we were sent caution notices requesting us to present to the local Police station in our hometown to be questioned.
P8.We were so scared, so we claimed bankruptcy and moved to Ho Chi Minh city, looking for different ways to leave Vietnam.
P9.Because of our plan to leave Vietnam due to our insecure position when the Government controlling our business and the several caution notices which have sent to my family questioning about our participation in the protest around our hometown, we had fears for our safety, so we decided to leave our country as Vietnam was not a safe haven for us. Even if we had to travel from one town to another, I believe my family would still be tracked down by the local government wherever we lived, we would then be arrested and interrogated for no specific reasons. As Vietnam does not have human rights, I have strong fears we would be victimised by the local authorities if we showed our disappointment and unhappiness living in that regime.
P10.My wife and I therefore had to travel to different countries such as [Country 1], [Country 2], [Country 3] throughout the year 2014 looking for ways to apply for refugee visas. Unfortunately, we could not find the local sources in those countries. Until we had friends who lived in Australia telling us to visit Australia and they believed Australia still has a humane policy assisting the refugees around the world. We decided to apply for visitor visas to Australia.
P11.We borrowed money through a loan shark system to buy our ways to leave Vietnam.
P12.Again, apart from our fears being track down by the local government because of taxes and our participation in the protest, we had fears to be targeted by the loan sharks who were the most cruel and dangerous people in the community, we had no choice but to leave Vietnam.
P13.We arrived in Australia on visitor visas [in] October 2014, lawful until [January] 2015.
P14.We stayed around Australia being torn by the thoughts whether we should return to Vietnam or to remain in Australia to apply for a Protection Visa.
P15.My wife and I sincerely apologised to the Tribunal for not regularising our visa status as we overstayed for nearly two years in Australia.
P16.The reason we wanted to stay around Australia in the hope that our matters could die down in a few years and we would return to Vietnam safely without having records applying for a Protection visa.
P17.Unfortunately, our relatives in Vietnam contacted us here and told us that the local Police were actively looking for us.
P18.My wife and I had fears that if we returned to Vietnam, we would be interrogated and the fears of being imprisoned went around our mind every single day.
P19.In conclusion, I would like now to submit the following new information for consideration by the AAT in its review of the decision of my Protection Visa.
P20.I believe the information which were provided to the Department of Home Affairs at time of my application were not very clear from our detailed statement.
P21.On this occasion, I would like to state that the reason my wife and I could not return to Vietnam because around the time of March, 2014, I participated in the protest against the constructions company POMUSA in Ha Tinh, which caused pollution to the environment. Therefore [in April], 2014, my wife and I were arrested. We were summoned to the local police who investigated our anti-political behaviour, and we were also summoned to the local police again the second time [in August], 2014. Because my wife and I were too afraid to be repeatedly interrogated and imprisoned, my wife and I sold all of our assets and decided to apply for the visitor visas to Australia to escape the dangerous phase of our lives in Vietnam at the time.
P22.We are still hoping every day that our names in the Police records could be removed then we would probably make decision to return home.
P23.We sincerely hope that the Tribunal will consider our claims fairly and to grant us a complementary Protection Visa. We understand that the Tribunal could have a discretion to grant my wife and me a Complementary protection because we do not meet the definition of refugees. However, given the facts that my wife and I could not return to our home country because we had constant fears to be arrested by the Vietnamese government and we had fears to be killed by the loan sharks. In addition to that, if my wife and I had to return to Vietnam, we do not have a house to live and we have no job to survive.
P24.The police summonses are evidence that the local Vietnamese authorities in my home district continue to have my wife and I under investigation, and they are aware of our political activities when we joined the protesters in the past when we were still in Vietnam.
P25.It is submitted this new information is highly relevant to the risk of my wife and me being subjected to arrest, interrogation, physical mistreatment and detention should we be returned to Vietnam.
On 4 August 2022, the representative provided to the Tribunal a Response to hearing invitation dated 4 August 2022 confirming (inter alia) that: the applicants would take part in the resumption of the adjourned joint hearing on 8 August 2022; the representative would not be participating in the adjourned joint hearing; and the applicants did not request that the Tribunal take oral evidence from another person.
The Hearing
The applicants appeared before the Tribunal on two occasions to give evidence and present arguments at a hearing conducted in person on 4 August 2022, adjourned with the consent of the applicants to 8 August 2022 for further hearing. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages who attended in person for the duration of the hearing. The representative was not present at the hearing. The applicants advised the Tribunal the representative was no longer acting on their behalf. The Tribunal notes that written notification of the representative ceasing to act has not been provided to the Tribunal.
At the outset of the hearing, the Tribunal put to the applicants the following:
You each made applications to the Department of Home Affairs for Protection Visas subclass 866 on 5 October 2016, relying on the same claims for protection. On 15 October 2019, the Department notified you in separate letters of their decision to refuse [the wife’s] protection visa application, on which [the wife] is the main applicant and [the husband] is the secondary applicant. After making inquiries of the Department, it does not appear to the Tribunal that the Department has made a decision on [the husband’s] protection visa application. The Tribunal does not have jurisdiction to conduct and hear a review where there is no primary decision by the Department. Today, I will therefore be conducting a hearing in relation to [the wife’s] protection visa application.
Main applicant evidence
The main applicant gave the following evidence at hearing in response to the Tribunal’s invitation to discuss details and information relating to the claims for protection set out in the wife’s protection visa application and the statutory declaration, and in response to the Tribunal’s questioning:
30.1.The applicants were not assisted in preparing the content of the wife’s protection visa application and the statutory declaration. The main applicant is satisfied the content of the wife’s protection visa application and the statutory declaration are correct to her knowledge.
30.2.The applicants were both born in [year] and grew up in the same village in Ha Tinh, Vietnam. They have known each other since childhood, married in 1992, and remain married. They have four children, three sons and one daughter, ages [specified], who live together with their elderly paternal grandparents in Ha Tinh in a house owned by their paternal grandmother. The two older sons are the main breadwinners for the household. The younger son and daughter attend school. The paternal grandparents do not receive government welfare support.
30.3.The main applicant did not undertake study, training or employment after leaving high school. The secondary applicant undertook compulsory military service after leaving high school. After the applicants were married, the main applicant was the principal homemaker, and the secondary applicant was the principal business operator, however the main applicant worked in the business part-time as her homemaker responsibilities permitted.
30.4.From 1993 to 2014, the applicants together owned and operated a business from home in Ha Tinh trading in [Product 2] and [Product 1]. The business was successful for some years, earning sufficient income to allow the applicants to purchase two blocks of land and a house property in Ha Tinh, with the assistance of a bank loan secured by mortgage. In 2014, the applicants sold their properties and other assets and trading stock and wound down their business.
30.5.The applicants were not involved in any other activities in Vietnam apart from running their business and bringing up their family.
30.6.The applicants came to Australia in October 2014, both travelling on visitor visas. At that time and for some years hence, their now [age]-year-old son was studying and living in Melbourne. The applicants initially lived in Melbourne, though not with their son, and later moved to Brisbane.
30.7.The applicants’ visitor visas expired [in] January 2015. They remained in Australia without visas until 5 October 2016 when they each made protection visa applications and were subsequently granted bridging visas subject to no work conditions.
30.8.The applicants are not in official employment and do not have tax file numbers or Medicare cards. However, they do [odd jobs] in their local area for which they receive cash payment. The main applicant is learning skills as a [occupation] by doing unpaid work at local [shops]. The secondary applicant is learning skills as a [occupation] by doing unpaid work with a local subcontractor. The applicants live in a rental property owned by a Vietnamese landlord. They pay minimal rent as they help with the care and maintenance of the property.
30.9.After the applicants sold their properties, other assets and trading stock, and paid off their debts in Vietnam, the main applicant thinks they had around $20,000 to $30,000 remaining, some of which they brought to Australia, and the balance they left with their older sons to assist with the school education of the younger children and household living expenses.
30.10.The applicants miss their children and other family members in Vietnam. They speak to their children every day and tell their younger son and daughter they will be coming home soon.
Business-related bribery claims
30.11.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraphs 12.1, 12.2, 12.3, 12.4, 12.5 and 12.7 of this decision record and P1, P2, P3, P4 and P5 of the statutory declaration set out in paragraph 26 of this decision record. The main applicant gave the following evidence in response:
30.12.The applicants’ business stopped being successful as it previously was in around 2008 because of the increasing pressure and harassment over time from government officials and ‘mafia’ representatives for the applicants to pay more and higher bribes, more often, in order to continue running their business. The applicants continued to pay part of the bribes and run the business for six more years until 2014 when they could no longer afford to pay the bribes, so they sold their assets and wound down their business. The secondary applicant paid the bribe money in cash and was not given receipts. The government taxes we had to pay were minimal compared with the bribes.
30.13.The bribe amounts and reasons were made up, plucked from nowhere. The applicants were told that if they didn’t pay, their power would be cut off, which would have destroyed their [Product 1] stock.
30.14.The main applicant is not sure of the detail because she was often at home looking after the children, however she knows the secondary applicant had to attend regular night-time meetings, maybe monthly or every few weeks, at the local ward office with government officials and ‘mafia’ representatives and other business owners who weren’t paying up on the bribes. The secondary applicant was not happy about what the government officials and ‘mafia’ representatives said to him and would get into arguments with them. He couldn’t stay silent. They put them in the black book as business owners who don’t pay bribes as they should.
30.15.Earlier on, the applicants were fined for not paying their bribes in full, then over time they were threatened verbally, not physically, with arrest and incarceration for non-compliance and visited in their home by big and scary government officials and ‘mafia’ representatives. The applicants were never arrested or sent to a re-education camp, but they heard rumours that other business owners had been. If you have money, you can pay bribes to be released; if not, you can be incarcerated for a long time.
Country information: business-related bribery claims
30.16.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
30.17.The Tribunal put to the main applicant the following relevant country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022:
5.5 A distinction should be made between high- and low-level corruption. Police corruption may take the form of ‘coffee money’, a small payment at the side of the road, which may in turn be paid to superiors or other parts of Government as part of a patronage network. This may be seen by people as the ‘way things are’ and not necessarily recognised as corruption. High-level corruption, including payments by organised crime or in politics, is much less tolerated. In-country sources told DFAT such matters are likely to be investigated and severely punished.
30.18.The Tribunal put to the main applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(page 23) CPV and government leaders have acknowledged growing public discontent with corruption, leading to an increase in corruption-related arrests in recent years. In 2019, for example, the government reported that it had disciplined over 53,000 officials and other party members for graft.
30.19.The main applicant responded as follows: Bribery is a way of life in Vietnam, corruption happens at every level of the Vietnamese system, the higher the position, the higher the bribe. This doesn’t mean they are not upset or outraged by it. Disciplining 53,000 officials is nothing; to clean up the system, it needs to be replaced.
30.20.The Tribunal put to the main applicant the following relevant country information from the United Nations General Assembly Human Rights Council Working Group on the Universal Periodic Review 32nd session 21 Jan-1 Feb 2019: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 Vietnam:
7. …Since the previous review, Viet Nam has made great efforts to improve its law, institutions, and policies on human rights, providing a solid framework that has yielded encouraging achievements in practice.
11. Between 2014 and 2018, Viet Nam has amended, revised and promulgated 96 new laws and ordinances related to human rights, citizens’ rights, in conformity with the 2013 Constitution… Additionally, such laws as Investment Law (2014), Business Law (2014), Law on Planning (2017), and Law on Assistance for Small and Medium Enterprises (2017) contribute to a stronger legal framework to ensure the people and businesses' freedom of doing business.
30.21.In response, the main applicant said she had no comment to make.
30.22.The Tribunal put to the main applicant the following relevant country information from the Department of Immigration and Border Protection Standard Q&A Report Vietnam: CI170217115230482 10 March 2017 provides in part the following information:
(page 4) … An October 1998 Amnesty International report indicates that many re-education camps in Vietnam were closed in the early 1990s.
30.23.In response, the main applicant said she had no comment to make.
30.24.The Tribunal put to the main applicant the following relevant country information from Chapter 16 The Business System of Vietnam, Nguyen Thi Tuyet Mai & Mai The Cuong (In book: Asian Business and Management: Theory, Practice and Perspectives, 2nd edition (2014). Eds. Harukiyo Hasegawa & Carlos Noronha. Palgrave Macmillan):
(page 5) A key element in the economic reform is the reduction of state intervention in business. The government has been trying to reduce its direct role in supervising the economy and providing support to the private sector to enhance its crucial role in the economy. In addition, significant state efforts have been spent to build a more effective and responsible state apparatus, to develop a more responsive and clean development administration, as well as to create a more equitable business environment for all participants in the economy.
30.25.The main applicant responded as follows: the applicants have heard this day in, day out, but it is nothing like they say.
Mental health claims
30.26.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraph 12.10 of this decision record and P6 of the statutory declaration set out in paragraph 26 of this decision record. The main applicant gave the following evidence in response:
30.27.The main applicant experienced a nervous breakdown and psychological harm in 2013 and 2014 due to the harassment from government officials and ‘mafia’ representatives. She had depression, insomnia and felt generally really unwell. She did not seek medical attention because in Vietnam you just hope things will settle down. The main applicant feels stable now. She has not sought any medical help in Australia because she doesn’t have access to Medicare.
Participation in demonstration claims
30.28.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraph 12.6 of this decision record and P7 and P21 of the statutory declaration set out in paragraph 26 of this decision record. The main applicant gave the following evidence in response:
30.29.The applicants took part in a demonstration against the Formosa company in 2014 at the site on the outskirts of Ha Tinh, Vietnam near the shoreline where the Formosa factory was being constructed. The main applicant said the reference to ‘Pomosa’ in the statutory declaration was meant to be ‘Formosa’. Also, she thought the demonstration happened sometime in May or June of 2014 because it was very hot, not in March as stated in the statutory declaration.
30.30.On the day of the demonstration, the applicants were collecting stock for their business and they heard from local people about the demonstration. They heard that if the factory went ahead, it would cause pollution in the waterways and they were worried it would damage their [Product 1] business and they would lose their livelihood. They felt unhappy with the government so decided to join the demonstration.
30.31.The main applicant said there were thousands, and later said there were tens of thousands, of people at the demonstration, and many were injured and hospitalised.
30.32.The main applicant said there were also violent protests in 2017 after a chemical spill from the Formosa factory, which caused a lot of environmental damage and loss of livelihood, and many protesters were taken to prison.
30.33.The applicants have not participated in any other demonstrations or anti-Vietnamese government activities since the 2014 demonstration, in Vietnam or Australia.
Country information: participation in demonstration claims
30.34.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
30.35.The Tribunal put to the main applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(page 11) Authorities have been unable and to a degree unwilling to stifle public criticism; concerted, aggressive campaigns to halt all political criticism would greatly risk an economic and political crisis that would create even more discontent and greater challenges to party rule. The government instead can regard protests as helpful, whether in disciplining the foreign owners of factories in Vietnam, rooting out local corruption, signalling displeasure with China, or providing a safety valve for discontent. The role of local officials at the ward level to mediate practical and flexible solutions to problems has also been described.
30.36.The main applicant responded as follows: the reality is that if you don’t have money to pay bribes you will be arrested and incarcerated for your involvement in these activities.
30.37.The Tribunal put to the main applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(pages 19-20) Formosa Steel is a Taiwanese company responsible for an April 2016 chemical spill which decimated fish stocks and devastated fishing communities along Vietnam’s central coast. The company eventually agreed to pay $500 million in damages. The disaster provoked large protests against both Formosa and the government in part due to the heavy impact on the livelihoods of the affected communities. While the protests were generally permitted, throughout 2017-2018 several activists were sentenced to lengthy prison terms associated with their protests over the incident. DFAT advised in their 2022 country report on Vietnam that Formosa protests are no longer occurring, at least on a large scale, due to a deal made with the company to provide compensation to victims.
30.38.The Tribunal noted to the main applicant there was no reference in the relevant country information to the Formosa demonstration in 2014 that the applicants claim to have been involved in. In response, the main applicant said they are not seeking refugee status as such but more of a facilitation of a short time in Australia; they don’t wish to stay in Australia permanently because they want to return to their family.
Police summonses claims
30.39.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraph 12.6 of this decision record and P21 and P24 of the statutory declaration set out in paragraph 26 of this decision record, and the contents of the appearance notices addressed to the applicants and dated [in] April 2014 and [in] August 2014, copies of which are attached to the wife’s protection visa application and the statutory declaration. The main applicant gave the following evidence in response:
30.40.The main applicant said she was very confused and worried at the time of the appearance notices and can’t remember many of their details. The notices were delivered by officials by hand to the applicants at their home in Ha Tinh.
30.41.The main applicant said the reference in the appearance notices to the purpose being to ‘resolve related matters’ is very typical; these sorts of notices very often give no detail of the matters.
30.42.The [April] 2014 notice required the applicants to appear at the police station on [date] April 2014. The applicants were not arrested on [date] April 2014 as stated in the statutory declaration; rather, they were summoned to the police station. On that day, all sorts of allegations were made about the applicants going against the government and their breach of made-up laws. The main applicant said that, being a woman, she stayed silent, but her husband argued with the officials about the allegations. They were given an administrative fine, which her husband paid in cash within one or two days. The main applicant can’t remember how much the fine was, but believes it wasn’t a small amount. They were allowed to leave the police station, but the payment of the fine didn’t stop the ongoing demands for bribes.
30.43.The [August] 2014 notice required the applicants to appear at the police station on [date] August 2014. This notice related to the applicants’ involvement in the Formosa demonstration. The officials told the applicants they were aware the applicants took part in the demonstration and if, after their investigations, they were found to have been involved in the planning and organisation, they would be arrested.
30.44.The applicants have not received any further notices from the police or authorities regarding their involvement in the Formosa demonstration, eight years ago. The main applicant says that doesn’t mean the police or authorities aren’t investigating them; it’s only because they are not in Vietnam. Their daughter has told the applicants the police come to the paternal grandmother’s house in Ha Tinh sometimes and ask the children about their whereabouts. The applicants have told the children to say they don’t know.
30.45.The applicants know people in Ha Tinh who participated in the Formosa demonstration who are still being investigated. The main applicant said these people may have also participated in the later protests after the chemical spill.
Country information: police summonses claims
30.46.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
30.47.The Tribunal put to the main applicant the following relevant country information from the Immigration and Refugee Board of Canada, Country of Origin Information, Responses to Information Requests: VNM201067.E 21 June 2022 provides in part the following information:
6. …a person who is wanted by the authorities would not be permitted to exit Vietnam using their passport or it would be very unlikely for them to do so. The Professor stated that anyone that has been summoned or issued an arrest warrant would be "banned" from exiting the country, but only those issued an arrest warrant could be "detained". In contrast, the lawyer noted that if a person has only been summoned by authorities but has not been served an arrest warrant or a wanted decision, there is a "significantly greater chance for them to legally" exit the country using their passport.
30.48.The main applicant responded as follows: a summons will not trigger an exit ban; a summons means you’re under investigation, and a warrant means you’re wanted.
30.49.The Tribunal put to the main applicant the following relevant country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022:
5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works.
30.50.In response, the main applicant agreed with this statement.
Loan shark claims
30.51.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraphs 12.9 and 12.13 of this decision record and P11 and P12 of the statutory declaration set out in paragraph 26 of this decision record. The main applicant gave the following evidence in response:
30.52.The applicants borrowed money from a loan shark sometime in 2014 to help cover living expenses as their business was winding down and to pay out the bank loan, so the title deeds could be released, and they could sell their properties. The main applicant is not sure of the details as her husband handled it all. She recalls signing a piece of paper, or maybe two or three pieces of paper, which she thinks set out the loan amount, interest rate, repayment date and what would happen if they didn’t repay, however she doesn’t know these details. She doesn’t know where the paperwork is, and they sold their house in Ha Tinh. The applicants were so worried and concerned at the time, they just wanted to get out of Vietnam.
30.53.The capital and interest owing to the loan shark was repaid when the applicants sold their assets. The loan shark told the applicants that interest could compound so they could always make demands for additional money in the future. No demands have been made, but that’s because the applicants are not in Vietnam. If the loan shark has been paid in full, they wouldn’t pursue and kill the applicants.
Country information: loan shark claims
30.54.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
30.55.The Tribunal put to the main applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(page 24) MPS was reported to have launched campaigns to suppress crimes relating to black credit in 2021, having previously increased investigations into illegal moneylenders in recent years through the establishment of dedicated police units in some provinces.
30.56.In response, the main applicant said she had no comment to make.
Asset sale/bankruptcy claims
30.57.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraph 12.8 of this decision record and P8 of the statutory declaration set out in paragraph 26 of this decision record. The main applicant gave the following evidence in response:
30.58.The applicants sold their two blocks of land, house property, trading stock and other assets, and wound down their business, in 2014 because they could no longer afford to pay the bribes and make enough money to support their family.
30.59.The applicants did not run away from their hometown (Ha Tinh) and relocate to Saigon. They visited Saigon on a few occasions in 2014 to attend to matters, including applying for visitor visas to Australia, and to visit relatives.
Country information: asset sale/bankruptcy claims
30.60.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
30.61.The Tribunal put to the main applicant the following information from SNB LAW Bankruptcy Proceedings in Vietnam September 2019:
(page 1) The legal basis for any bankruptcy proceedings in Vietnam today is still the Bankruptcy Law of 2014. Bankruptcy Law 2014 contains a definition of “bankruptcy” and “insolvency” which seems to establish a very low threshold for bankruptcy proceedings. Accordingly, an enterprise is deemed insolvent when it fails to meet its financial obligations and pay its debts within three months after such debts become due. In such case, and after a bankruptcy procedure has been carried out successfully, an enterprise is bankrupt when it is declared so by the competent People’s Court.
30.62.The main applicant responded as follows: the references in the wife’s protection visa application and the statutory declaration to the applicants declaring themselves bankrupt meant they sold all their assets, not that they officially declared bankruptcy through a court process. Also, they didn’t owe any money to the Vietnamese government.
Attempts to seek refugee status in other than Australia claims
30.63.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraph 12.1 of this decision record and P10 of the statutory declaration set out in paragraph 26 of this decision record, and the travel information provided in the wife’s protection visa application. The main applicant gave the following evidence in response:
30.64.The reason for the secondary applicant’s travel to [Country 1] in July 2014 was not for business as stated in the wife’s protection visa application and the reason for the applicants’ travel to [Country 2] and [Country 3] in July and August 2014 respectively was not for holidays as stated in the wife’s protection visa application. The real reason for the travel was to see if they could apply for refugee status in these countries. The travel occurred after the applicants participated in the Formosa demonstration.
30.65.The applicants didn’t make any applications for refugee status in these countries because they didn’t have any friends who could help them, and they were told by local Vietnamese in each place that it was too difficult.
30.66.The applicants did not have any issues with the Vietnamese authorities when applying for their passports or exiting or re-entering Vietnam because they hadn’t done anything wrong.
30.67.When asked by the Tribunal about the outstanding notice from August 2014 relating to the Formosa demonstration, the main applicant said they were in a state of confusion at the time and were very worried about being arrested and not being able to repay the loan shark.
Reasons for coming to Australia claims
30.68.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraph 12.1 of this decision record and P13, P14, P15 and P16 of the statutory declaration set out in paragraph 26 of this decision record. The main applicant gave the following evidence in response:
30.69.Friends of the applicants told them they should apply for refugee status in Australia.
30.70.The applicants came to Australia in October 2014 because the situation in Vietnam had become very tense for them, they were worried about the government and the loan shark. They had been very worried for years about the government controlling their business through the bribery but felt they couldn’t leave as a family as it would disrupt the younger children’s schooling. Their fear resulting from the summons after the Formosa demonstration in 2014 was the trigger for the applicants’ decision to come to Australia.
30.71.The main applicant didn’t know anything about the visa system in Australia. Her husband made all the arrangements for their visitor visas. At the time, they just wanted a way of getting out of Vietnam, and coming to Australia, so they could see if things settled down at home.
30.72.The applicants’ visitor visas expired [in] January 2015. They remained in Australia without visas until 5 October 2016 when they each made protection visa applications and were subsequently granted bridging visas subject to no work conditions.
30.73.The applicants know it was not right to stay on in Australia illegally, but they believed it was better than being incarcerated in Vietnam.
30.74.When asked by the Tribunal why the applicants did not apply for protection when they first arrived in Australia or before their visitor visas expired, a period of nearly two years, the main applicant said they didn’t know anyone here, and they were afraid to put in an application to stay as they thought they would be deported immediately if refused. Their son, who was in Australia studying, couldn’t help them. They were very confused during that period until they met a student in the local Vietnamese community who showed them how to make a protection visa application. They asked their son if he would like to be included in the application as a secondary applicant. The son told them he didn’t want to be part of the application as it is not good to apply for that sort of visa: there is no war in Vietnam and they are not refugees, so it will be refused.
30.75.When asked by the Tribunal about the applicants’ belief that they are not refugees, the main applicant confirmed this belief, and said they are not fully sure what complementary protection means. After the Tribunal explained complementary protection a second time (having explained it at the start of the hearing) and that the Tribunal has no discretion, it must apply the law, the main applicant said they only wanted to come to Australia temporarily until things settled down at home in Vietnam. While they are in Australia, they haven’t done anything against the Vietnamese government. Their hope is that the Vietnamese authorities will stop investigating the Formosa demonstration in 2014 and will forget about them so they can go back to Vietnam. They are not hoping for regime change in Vietnam, they are hoping to go home and get on with their lives without any trouble.
30.76.The applicants are very sorry for making an application for a protection visa because they don’t want permanent residency or citizenship, they want to go home to their children. The Tribunal advised the main applicant that it was bound by law to review and make a decision on the existing application lodged by the applicants, the Tribunal has no power to enable a new application, that is a matter for the applicants.
Fear of return to Vietnam claims
30.77.The Tribunal put to the main applicant and asked her to explain each of the claims set out in subparagraphs 12.11, 12.12, 12.13, 12.14 and 12.15 of this decision record and P12, P18, P23, P24 and P25 of the statutory declaration set out in paragraph 26 of this decision record. The main applicant gave the following evidence in response:
30.78.If the applicants were returned to Vietnam, they would have to run a business again to earn income to support themselves and the family. There is no government welfare available to them. They would probably run a similar business, [Product 2] and [Product 1], because it was quite profitable for a time. They have no property in Vietnam now because they sold all their assets before they left for Australia.
30.79.The applicants are afraid the government officials and ‘mafia’ representatives will track them down because her husband had arguments with them in the past, and will pressure them to pay bribes, and it will be impossible to run a profitable business in the normal way. She must maintain her silence for the sake of the children.
30.80.The applicants are afraid the loan shark will pursue them for compound interest on the principal and interest loan they repaid in 2014.
30.81.The applicants are afraid their involvement in the Formosa demonstration in 2014 is still being investigated by the Ha Tinh police and they will be arrested and imprisoned. The main applicant is not sure if they are persons of interest to the Vietnamese authorities because she isn’t there and she can’t say one way or another. She thinks people in Vietnam who participated in the demonstration are still being investigated.
30.82.Her husband’s mother and sister have communicated with him and told him the police are looking for us. The main applicant hasn’t been part of these conversations.
30.83.The main applicant acknowledged that it didn’t make sense in the wife’s protection visa application to claim that relatives had told them that the local authorities were confiscating their computers and assets from their business because those assets were sold before they left Vietnam for Australia. She thought it may have been about the Formosa demonstration investigation, but she is not sure.
30.84.There is no protection available to the applicants because the Vietnamese government controls everything and is the causse of their fears. There is no point relocating within Vietnam because corruption happens around the country.
Country information: fear of return to Vietnam claims
30.85.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
30.86.The Tribunal put to the main applicant the following relevant country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022:
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
30.87.The main applicant responded as follows: there is an agreement between Vietnam and Australia about returned asylum seekers, but it’s impossible to survive when you return to your hometown because of the pressure. If she says something against the system she would be incarcerated. On questioning by the Tribunal, the main applicant confirmed her earlier evidence that the applicants had decided after the Formosa demonstration in 2014 not to be involved in any anti-Vietnamese government activities, and they haven’t been,
Section 424AA Adverse Information
30.88.The Tribunal put the following to the main applicant:
Where any information comes to the attention of the Tribunal that it considers would be the reason or part of the reason for affirming the decision under review, I must, under Australian law, present clear particulars of that information to you today. This is known as adverse information.
I must also ensure, as far as reasonably practicable, that you understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision under review.
I must invite you today to comment on or respond to the information.
And I must advise you that you may seek additional time to comment on or respond to the information.
If you do seek additional time, I must adjourn the hearing for such time as I consider reasonably necessary to allow you to comment or respond.
I emphasise that, while I have these obligations, I have not yet made up my mind about your case or the extent to which the information affects your claims for protection.
I have three pieces of information. I will explain each piece of information and why it is relevant to your case. When I’ve finished, I will discuss it with you.
The information relates to a number of bridging visa matters involving your son […] that have previously come before and been decided upon by the Tribunal.
The first piece of adverse information is information that your son gave to the Tribunal and was recorded in Tribunal decision record dated 28 November 2017. He said that he arrived in Australia on a student visa intending to study English and later to continue his studies for a bachelor’s degree in Hotel Management, however his plans for study abruptly ended because of issues within his family – his parents divorced.
This information is relevant to your case because your husband is listed in your protection visa application as your husband and being a member of your family unit. This information is also relevant to your case because it raises questions for the Tribunal about the credibility of your evidence overall.
The second piece of adverse information is information that your son gave to the Tribunal and was recorded in Tribunal decision record dated [in] December 2017. He said that his parents in Vietnam who operate [a Product 3] business will also assist him financially. He said when he decided to apply for a Partner visa, he called his parents and asked for money and they sent him AUD15,000.
This information is relevant to your case for a number of reasons. It raises questions for the Tribunal about a possible breach of your bridging visa conditions. You are entitled to refuse to comment on or respond to this information if doing so might tend to incriminate you. This is called the privilege against self-incrimination. You may also choose to waive that privilege when I discuss this and the other information with you a bit later in the hearing – that means you are free to comment or respond on the information if you choose.
The information also raises questions for the Tribunal about the credibility of the evidence you gave earlier today regarding your ability to conduct business in Vietnam. Further, the information raises questions for the Tribunal about the credibility of your evidence overall.
The third piece of adverse information is information included in a Tribunal decision record dated 20 March 2018. The Tribunal noted that the applicant’s mother (that is you) told the Tribunal that she and her husband had come to Australia in 2014 and that they had applied for protection visas. The Tribunal asked the applicant, that is your son, why, if his mother and father have a genuine fear of returning to Vietnam because they would be persecuted, the applicant had no such fears and why there might not be something about their claims to prevent him returning there. The applicant stated that he was over the age of 18 years of age now and he didn’t know what his parents were doing. The Tribunal found that the applicant’s parents (that is, you and your husband) presence in Australia represents a strong incentive for him to remain in the community, even if it means being an unlawful citizen.
The information is relevant to your case because it raises questions for the Tribunal about your real motivation for being in Australia, particularly so, given that you didn’t apply for protection until October 2016. If you feared persecution in Vietnam, it appears questionable that your own son would not know about something so serious. It also raises questions for the Tribunal about what you knew about your son’s intentions.
Further, the information raises questions for the Tribunal about the credibility of your evidence overall.
30.89.The main applicant told the Tribunal that she understands the adverse information that had been put to her and why it is relevant to her case. She said she did not require an adjournment to consider the adverse information and wanted to respond at hearing. The main applicant gave the following evidence in response:
30.90.When their son told the applicants he had decided not to continue his studies in Australia because of everything that was going on with his parents, the applicants talked to him because they really wanted him to continue studying. The paternal grandparents in Vietnam offered to sell some land to fund the ongoing costs of the study, as they had previously, however the son refused. Out of frustration, the applicants said to their son: would you be happy to continue studying if mum and dad divorced? After that, the son didn’t talk to his parents for a long time. The main applicant believes the son interpreted their comment as his parents intending to divorce.
30.91.When the applicants were preparing their protection visa applications, they asked their son if he would like to be included as a secondary applicant. The son told them he didn’t want to be part of the application as it is not good to apply for that sort of visa: there is no war in Vietnam and they are not refugees, so it will be refused.
30.92.The AUD15,000 that was paid to the son to assist him with his partner visa application came from his paternal grandparents in Vietnam, not from the applicants. The paternal grandparents felt this may help bring the applicants and their son closer together. The main applicant believes the son’s reference to the [Product 3] business was the [Product 2] business the applicants ran in Vietnam and sold off before coming to Australia.
30.93.When the son declined to be a secondary applicant on the applicants’ protection visa applications, the applicants spoke no further with him about their applications. The main applicant believes this is why he told the Tribunal he knew nothing about their protection claims.
30.94.The applicants wanted their son to stay in Australia because they were concerned about the communication breakdown and how it could be improved. However, they came to Australia mostly because they wanted to get out of Vietnam and stay away for a while until things settled down.
Secondary applicant evidence
The secondary applicant gave the following evidence at hearing in response to the Tribunal’s invitation to discuss details and information relating to the claims for protection set out in the wife’s protection visa application and the statutory declaration, and in response to the Tribunal’s questioning:
31.1.The applicants were not assisted in preparing the content of the wife’s protection visa application and the statutory declaration. The main applicant is satisfied the content of the wife’s protection visa application and the statutory declaration are correct to his knowledge.
31.2.The secondary applicant apologised to the Tribunal for the confusion relating to his application for protection (the husband’s protection visa application) and said he wants to withdraw his application for review and remain only as a secondary applicant on the wife’s protection visa application.
31.3.The applicants started their business in Ha Tinh around 1994 or 1995, the secondary said it was hard to remember exactly when. They traded in [Product 2] from their two-storied home, which they owned. They also traded as wholesalers in [Product 1] from a cold storage warehouse they owned near their home, buying stock at price lows and selling to market at price highs. The secondary applicant ran the business principally, with some involvement by his wife. The business was successful and profitable on the whole, however it went through ups and downs as the market fluctuated.
31.4.The applicants’ four children live in Ha Tinh with their paternal grandparents, the secondary applicant’s parents. The eldest son is married and travels for work; he contributes to the household expenses. The second eldest son runs a [shop] in local rented premises; he also contributes to the household expenses. The household has also been supported by the grandparents’ savings and some money the applicants contributed before they left Vietnam for Australia. The applicants have not contributed to the household expenses while in Australia as they have very little money.
31.5.The applicants live in a flat where they pay a low rent of under $100 per week. It costs them in total around $200 per week to live. They do [odd jobs] for cash of around $60 to $70 per week. Some weeks, a friend gives them supplies of rice and garden vegetables.
Business-related bribery claims
31.6.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P1, P2, P3, P4, P5 and P6 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.7.Corruption is systematic in Vietnam, not aimed at any particular individual. Government officials receive very low salaries, so bribery is necessary to supplement their income. To run their business, the secondary applicant paid bribes every four or five days, or fortnightly, or monthly, depending on the how well the business was going. Bribes could represent 50-70% of the business profits. The more successful the business was seen to be by government officials, the higher the bribes payable. Officials kept a track of price movements in a trading area, and other business competitors in the same vicinity as the applicants would inform officials if the applicants were doing well.
31.8.Initially, the government officials left the applicants alone, but when they became aware the business was doing well, the harassment and demands for bribes escalated in around 2009. Then, even when the market prices were low, the harassment and demands continued.
31.9.The second applicant was required to attend night-time meetings with government officials around once or twice each month. The meetings mostly involved spreading government propaganda and seeking ‘donations’ from business owners. A donation was another form of bribe. While business tax is quite low in Vietnam, the real cost is in the bribes and donations that must be paid to government officials. The secondary applicant paid donations at each night-time meeting, otherwise the government officials would inspect their business and stop them from operating. Government officials also threatened the secondary applicant and other business owners that they would be charged and detained in a re-education camp if they didn’t pay up. The secondary applicant said these were just words, and it never happened to them anyway because he always paid up.
31.10.It was difficult to run the business in a corrupt environment because even at times when market fluctuations meant much lower profits, they still had to pay bribes. It was always hard to predict how much money the government officials would demand and how often, and therefore hard to manage expenses. At times, the second applicant argued with government officials about the unfair system.
Country information: business-related bribery claims
31.11.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
31.12.The Tribunal put to the secondary applicant the following relevant country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022:
5.5 A distinction should be made between high- and low-level corruption. Police corruption may take the form of ‘coffee money’, a small payment at the side of the road, which may in turn be paid to superiors or other parts of Government as part of a patronage network. This may be seen by people as the ‘way things are’ and not necessarily recognised as corruption. High-level corruption, including payments by organised crime or in politics, is much less tolerated. In-country sources told DFAT such matters are likely to be investigated and severely punished.
31.13.The secondary applicant responded as follows: police take advantage of the law to extract bribes: the stricter the law, the higher the bribe payable. Police and other government officials must pay a lot of money for their official position, so they rely on bribe money to recoup that expense. There are more government officials than businesses in Vietnam; bribery occurs from the lowest to highest levels. Private businesses accept that bribery is the regular way of doing business.
31.14.The Tribunal put to the secondary applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(page 23) CPV and government leaders have acknowledged growing public discontent with corruption, leading to an increase in corruption-related arrests in recent years. In 2019, for example, the government reported that it had disciplined over 53,000 officials and other party members for graft.
31.15.The secondary applicant responded as follows: these arrests relate to systemic corruption where billions of dollars disappeared from state revenue, and high-ranking officials were held accountable, but lower-level corruption continues without officials being disciplined.
31.16.The Tribunal put to the secondary applicant the following relevant country information from the United Nations General Assembly Human Rights Council Working Group on the Universal Periodic Review 32nd session 21 Jan-1 Feb 2019: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 Vietnam:
7. …Since the previous review, Viet Nam has made great efforts to improve its law, institutions, and policies on human rights, providing a solid framework that has yielded encouraging achievements in practice.
11. Between 2014 and 2018, Viet Nam has amended, revised and promulgated 96 new laws and ordinances related to human rights, citizens’ rights, in conformity with the 2013 Constitution… Additionally, such laws as Investment Law (2014), Business Law (2014), Law on Planning (2017), and Law on Assistance for Small and Medium Enterprises (2017) contribute to a stronger legal framework to ensure the people and businesses' freedom of doing business.
31.17.The secondary applicant responded as follows: the report is meant to please the international community. The laws are only applicable to foreign companies trading in Vietnam, not local businesses. The Vietnamese government would never interfere with these companies or it may jeopardise their investments in Vietnam. Any local businesses that tried to seek a resolution of harassment and bribery issues and voiced objections would be shut down and deemed to be breaching law and order.
Mental health claims
31.18.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P2 and P6 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.19.The nervous breakdowns the applicants experienced were as a result of the increasing mental pressure from harassment and demands for bribes from government officials from around 2009 to 2013 when they wound down their business. Some days the applicants couldn’t eat or sleep.
31.20.In Vietnam, people don’t get treated for nervous symptoms.
31.21.The applicants stopped feeling mentally unwell when they arrived in Australia.
Participation in demonstration claims
31.22.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P7, P9, P17, P18, P19, P20, P21, P22 and P24 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.23.The protests in 2014 against Formosa continued from March to May. The second applicant joined one protest in late March, without his wife, by local Vietnamese residents and landowners against Chinese Formosa workers objecting that land that had been taken from locals for the Formosa factory site, depriving them of aquaculture land, and complaining about the pollution caused by the factory construction. Both applicants joined another protest in early April because they happened to be in the area, and they were frustrated about Chinese workers injuring the local Vietnamese. The government shut down both protests.
31.24.Since the 2014 protests, the applicants didn’t participate in any other protests or any other anti-government activities, in Vietnam or Australia. The secondary applicant didn’t intend to protest, it was a spur of the moment decision because he was frustrated with harassment and demands for money from officials; he wasn’t thinking about the consequences.
31.25.Family members have told the secondary applicant that some Vietnamese people who were involved in the Formosa protests are still under house arrest and not able to leave the area, and others have been jailed and released. Initially, when in Australia, the secondary applicant stayed in touch with these people, however later he stopped for fear of being tracked down by the Vietnamese government.
Country information: participation in demonstration claims
31.26.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
31.27.The Tribunal put to the secondary applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(page 11) Authorities have been unable and to a degree unwilling to stifle public criticism; concerted, aggressive campaigns to halt all political criticism would greatly risk an economic and political crisis that would create even more discontent and greater challenges to party rule. The government instead can regard protests as helpful, whether in disciplining the foreign owners of factories in Vietnam, rooting out local corruption, signalling displeasure with China, or providing a safety valve for discontent. The role of local officials at the ward level to mediate practical and flexible solutions to problems has also been described.
31.28.The secondary applicant responded as follows: this report is to please the international watchdog. The Vietnamese government never allows protests, and when they happen, they are hut down quickly, protesters are investigated and taken away to unknown places. The secondary applicant hopes that while they are living in Australia, the Vietnamese regime would change to allow people to live in a free and democratic society.
31.29.The Tribunal put to the secondary applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(pages 19-20) Formosa Steel is a Taiwanese company responsible for an April 2016 chemical spill which decimated fish stocks and devastated fishing communities along Vietnam’s central coast. The company eventually agreed to pay $500 million in damages. The disaster provoked large protests against both Formosa and the government in part due to the heavy impact on the livelihoods of the affected communities. While the protests were generally permitted, throughout 2017-2018 several activists were sentenced to lengthy prison terms associated with their protests over the incident. DFAT advised in their 2022 country report on Vietnam that Formosa protests are no longer occurring, at least on a large scale, due to a deal made with the company to provide compensation to victims.
31.30.The Tribunal noted to the secondary applicant there was no reference in the country information to the 2014 Formosa demonstrations, however the Tribunal put to the secondary applicant the following extract from a media article on The Guardian News website dated 16 May 2014 – At least 21 dead in Vietnam anti-China protests over oil rig
At least 21 people were killed and nearly 100 injured in Vietnam on Thursday during violent protests against China in one of the deadliest confrontations between the two neighbours since 1979.
Crowds set fire to industrial parks and factories, hunted down Chinese workers and attacked police during the riots, which have spread from the south to the central part of the country following the start of the protests on Tuesday.
The violence has been sparked by the dispute concerning China stationing an oil rig in an area of the South China Sea claimed by Vietnam. The two nations have been fighting out a maritime battle over sovereignty and that battle has now seemingly come ashore.31.31.The Tribunal noted to the secondary applicant the media report was unrelated to evidence he had given about the 2014 Formosa protests the applicants claim to have participated in. The secondary applicant responded as follows: the protests the applicants joined didn’t reach the media because the government quickly shut down the protests and the news outlets and reporters. The oil rig was a much bigger issue, but those protests were shut down too.
Police summonses claims
31.32.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P21, P22 and P24 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.33.The appearance notices addressed to the applicants dated [in] April and [August] 2014 (copies of which were provided to the Tribunal by the applicants) both relate to the protest in early April 2014. There were no notices issued in relation to the first protest in late March 2014 because the government intervened and mediated the matter with Formosa requiring the company to pay compensation to local Vietnamese and to operate the factory within a defined area. When Formosa subsequently did not comply with these conditions, the protests restarted.
31.34.The applicants appeared at the police station [in] April 2014 in response to the first notices dated [date] April 2014. The police asked the applicants if they were involved in organising the protest and other anti-government activities and told them they would be in breach of law and order if they were found to be. They were allowed to leave, however received further appearance notices a few days later and were required to attend the police station again and be subjected to more questioning and allegations. The applicants do not have copies of these notices.
31.35.The applicants appeared again at the police station [in] August 2014 in response to the notices dated [date] August 2014. The questioning and allegations were similar to the previous occasions; the police were looking for the mastermind of the protests. The applicants told the police they weren’t involved in organising the protests, but they did raise their objection to Formosa harming Vietnamese people. The applicants weren’t required to appear again because the police were investigating so many people, but they were very worried about what might happen in the future.
31.36.The secondary applicant said he was not required to pay the police any money as a result of these appearances at the police station.
31.37.Sometimes the secondary applicant received appearance or caution notices for arguing with government officials, but once he paid the bribes, it was no longer an issue. The secondary applicant does not have copies of these notices.
Country information: police summonses claims
31.38.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
31.39.The Tribunal put to the secondary applicant the following relevant country information from the Immigration and Refugee Board of Canada, Country of Origin Information, Responses to Information Requests: VNM201067.E 21 June 2022 provides in part the following information:
6. …a person who is wanted by the authorities would not be permitted to exit Vietnam using their passport or it would be very unlikely for them to do so. The Professor stated that anyone that has been summoned or issued an arrest warrant would be "banned" from exiting the country, but only those issued an arrest warrant could be "detained". In contrast, the lawyer noted that if a person has only been summoned by authorities but has not been served an arrest warrant or a wanted decision, there is a "significantly greater chance for them to legally" exit the country using their passport.
31.40.In response, the secondary applicant agreed with this statement.
31.41.The Tribunal put to the secondary applicant the following relevant country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022:
5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works.
31.42.The secondary applicant responded as follows: those who are charged or prosecuted could never leave Vietnam, but those under investigation are permitted to leave.
Loan shark claims
31.43.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P11 and P12 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.44.The applicants had to borrow money from a loan shark in order to pay out the bank loan and mortgage, get the title deeds, and sell their properties. They borrowed around AUD300,000, and repaid principal and interest to the loan shark of around AUD350,000.
Country information: loan shark claims
31.45.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
31.46.The Tribunal put to the secondary applicant the following relevant country information from the Department of Home Affairs Common Claims Vietnam 10 February 2022:
(page 24) MPS was reported to have launched campaigns to suppress crimes relating to black credit in 2021, having previously increased investigations into illegal moneylenders in recent years through the establishment of dedicated police units in some provinces.
31.47.The secondary applicant responded as follows: high-profile loan shark cases will always get the attention of the government; however, it is very hard to stamp out small-scale operations.
Asset sale/bankruptcy claims
31.48.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P8 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.49.The applicants sold off stock and wound down their business in 2013 because the markets in [Product 2] and [Product 1] had changed, the margins were smaller, there were more competitors competing for the same client base, interest on the bank loan for the cold storage warehouse had increased, the electricity costs and other business overheads had increased, and the trading stock was in scarce supply.
31.50.The applicants travelled to Saigon towards the end of 2013 looking for other business opportunities, however they discovered that doing business there was also difficult.
31.51.The applicants sold their house and warehouse properties in early 2014. They described this as declaring themselves bankrupt, however the secondary applicant acknowledged that it wasn’t official bankruptcy under Vietnamese law because they were not an enterprise.
31.52.After repaying the loan shark and the bank, and selling their properties for around AUD450,000, the applicants had less than AUD100,000 remaining because they also had to pay a number of bribes to bank staff and government officials. The applicants lived off part of this money while they remained in Vietnam.
Attempts to seek refugee status in other than Australia claims
31.53.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P8 and P10 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.54.The applicants travelled to Saigon again in mid-2014 to look for ways to leave Vietnam. They were worried about their involvement in the 2014 Formosa protests and that the police investigation may lead to their arrest and imprisonment.
31.55.From Saigon, the secondary applicant travelled first to [Country 1], then both applicants travelled to [Country 2] and [Country 3]. In each country, the applicants were hoping to get temporary residency while they saw how things went in Vietnam, however they realised they had no chance.
31.56.The applicants did not have any trouble leaving Vietnam on these trips as they left in secrecy from Saigon. They lived in Saigon for a month beforehand.
Reasons for coming to Australia claims
31.57.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P13, P16 and P23 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.58.After their overseas trips, the applicants’ savings were depleted, and they needed to put aside some money to cover the children’s education and general expenses. They met a friend in Saigon who suggested they go to Australia on a temporary basis.
31.59.The applicants engaged a travel agent in Saigon and provided their business background to support applications for visitor visas, having told the agent they wanted to come to Australia on a holiday. They were aware the visitor visas lasted only three months, but a friend in Australia told them to come and there may be an opportunity to apply for a further stay based on asylum seeker grounds.
31.60.The applicants had no set time in mind for their stay in Australia. They were hoping to wait and see what happened to the other people in Vietnam who participated in the 2014 Formosa protests.
31.61.The applicants’ children felt sad that their parents were leaving for Australia. The applicants told their younger children that they were going for a short while. The older children were aware of the circumstances, but the applicants told them not to tell their younger siblings.
31.62.The applicants didn’t know anything about the visa issues when they arrived in Australia, their English was poor, and there was no one who could help them. They didn’t intentionally overstay their visa unlawfully; they were scared and didn’t know what to do. It was only when they came to Brisbane and met an overseas student who advised them to apply for a protection visa. They thought it was a temporary visa. The secondary applicant acknowledged that they weren’t entitled to a permanent visa.
Fear of return to Vietnam claims
31.63.The Tribunal put to the secondary applicant and asked him to explain each of the claims set out in P17, P18 and P23 of the statutory declaration set out in paragraph 26 of this decision record, referencing the similar and corresponding claims set out in the wife’s protection visa application and in paragraph 12 of this decision record. The secondary applicant gave the following evidence in response:
31.64.The secondary applicant said he was worried the Formosa protest investigation would result in them being arrested and incarcerated in Vietnam, that they would be tortured and harassed by the mafia, lose their minds or suffer disability, and their children would suffer too. If they don’t have the money, they would not be able to bribe the prison warden to avoid being taken to a violent part of the prison. The secondary applicant said he’s not saying he’s a person of interest because he hasn’t been charged, but the authorities could still be interested in him because they have pursued others like him, and he’s worried about that.
31.65.The applicants’ children told them that a couple of years ago, the loan shark came to the paternal grandparents’ home in Ha Tinh inquiring about their whereabouts and claiming they owed money. Even though the applicants repaid the principal and interest to the loan shark, they are worried the loan shark will compound interest and demand more money if they return.
31.66.A few months ago, the applicants’ children told them the local police called on the children at the grandparents’ house and asked when the applicants were coming back. The children told the police they didn’t know, and the police left.
31.67.The secondary applicant doesn’t believe there is any protection available to them in Vietnam from their fears. Also, if they were returned to Vietnam, they would have to report to the authorities in their home town on arrival, and thereafter the authorities would have full control of their movement anywhere in Vietnam.
31.68.The applicants miss their homeland and they’re hoping in five years’ time it will be safe to go back. Normally a file comes off the police blacklist after ten years. The secondary applicant acknowledged that it had been eight years already since the 2014 appearance notices.
31.69.If the applicants were returned to Vietnam, they have no money or property, so initially they would have to live with the paternal grandparents while they found work and other opportunities. The secondary applicant has two other siblings with whom he would share any inheritance of their parents’ property.
Country information: fear of return to Vietnam claims
31.70.With reference to these claims, the Tribunal considered the relevant country information set out in Attachment B to this decision record.
31.71.The Tribunal put to the secondary applicant the following relevant country information from the Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022:
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
31.72.The secondary applicant responded as follows: returnees are protected and monitored by the government, so nothing would happen to them initially, but they would not be able to do anything once back in their home town. They would encounter a lot of difficulties getting documents as they would be regarded by the locals as people who had betrayed their country. Their children would be discriminated against at school and denied good marks. The applicants hope they can return when society has changed, and the next generation has a different mindset.
Section 424AA Adverse Information
31.73.The Tribunal put the following to the secondary applicant:
Where any information comes to the attention of the Tribunal that it considers would be the reason or part of the reason for affirming the decision under review, I must, under Australian law, present clear particulars of that information to you today. This is known as adverse information.
I must also ensure, as far as reasonably practicable, that you understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision under review.
I must invite you today to comment on or respond to the information.
And I must advise you that you may seek additional time to comment on or respond to the information.
If you do seek additional time, I must adjourn the hearing for such time as I consider reasonably necessary to allow you to comment or respond.
I emphasise that, while I have these obligations, I have not yet made up my mind about your case or the extent to which the information affects your claims for protection.
I have three pieces of information. I will explain each piece of information and why it is relevant to your case. When I’ve finished, I will discuss it with you.
The information relates to a number of bridging visa matters involving your son […] that have previously come before and been decided upon by the Tribunal.
The first piece of adverse information is information that your son gave to the Tribunal and was recorded in Tribunal decision record dated 28 November 2017. He said that he arrived in Australia on a student visa intending to study English and later to continue his studies for a bachelor’s degree in Hotel Management, however his plans for study abruptly ended because of issues within his family – his parents divorced.
This information is relevant to your case because your husband is listed in your protection visa application as your husband and being a member of your family unit. This information is also relevant to your case because it raises questions for the Tribunal about the credibility of your evidence overall.
The second piece of adverse information is information that your son gave to the Tribunal and was recorded in Tribunal decision record dated [in] December 2017. He said that his parents in Vietnam who operate [a Product 3] business will also assist him financially. He said when he decided to apply for a Partner visa, he called his parents and asked for money and they sent him AUD15,000.
This information is relevant to your case for a number of reasons. It raises questions for the Tribunal about a possible breach of your bridging visa conditions. You are entitled to refuse to comment on or respond to this information if doing so might tend to incriminate you. This is called the privilege against self-incrimination. You may also choose to waive that privilege when I discuss this and the other information with you a bit later in the hearing – that means you are free to comment or respond on the information if you choose.
The information also raises questions for the Tribunal about the credibility of the evidence you gave earlier today regarding your ability to conduct business in Vietnam. Further, the information raises questions for the Tribunal about the credibility of your evidence overall.
The third piece of adverse information is information included in a Tribunal decision record dated 20 March 2018. The Tribunal noted that the applicant’s mother (that is your wife) told the Tribunal that she and her husband (you) had come to Australia in 2014 and that they had applied for protection visas. The Tribunal asked the applicant, that is your son, why, if his mother and father have a genuine fear of returning to Vietnam because they would be persecuted, the applicant had no such fears and why there might not be something about their claims to prevent him returning there. The applicant stated that he was over the age of 18 years of age now and he didn’t know what his parents were doing. The Tribunal found that the applicant’s parents’ (that is, you and your wife) presence in Australia represents a strong incentive for him to remain in the community, even if it means being an unlawful citizen.
The information is relevant to your case because it raises questions for the Tribunal about your real motivation for being in Australia, particularly so, given that you didn’t apply for protection until October 2016. If you feared persecution in Vietnam, it appears questionable that your own son would not know about something so serious. It also raises questions for the Tribunal about what you knew about your son’s intentions. Further, the information raises questions for the Tribunal about the credibility of your evidence overall.
31.74.The secondary applicant told the Tribunal he understands the adverse information that had been put to him and why it is relevant to his case. He said he did not require an adjournment to consider the adverse information and wanted to respond at hearing. The secondary applicant gave the following evidence in response:
31.75.The applicants’ son was initially good with his studies in Australia but ignored them after a time and wanted to stop. The secondary applicant overheard his wife and son in an argument once where his wife said, if you drop out of your studies, I may as well divorce your dad and live somewhere else. He thinks that’s where the son got the idea of his parents being divorced. After that, for a time, there was a breakdown in communication between the applicants and their son as they were angry with one another.
31.76.The AUD15,000 was paid by the secondary applicant’s parents to his wife from the sale of some land in Vietnam, to help the applicants’ son with his Partner visa application. The son was in detention at the time, so the money was held for him until he was released.
31.77.The applicants’ son refused to be on their application for protection because he believed if it was rejected, he would be deported. The son didn’t know about the applicants’ protection claims.
31.78.The applicants really wanted their son to stay in Australia to study, but they were here for their own reasons.
CONSIDERATION OF CLAIMS AND EVIDENCE
The central issue is whether the main applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. The relevant law is summarised below and extracted in Attachment A to this decision record.
Relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment A to this decision record.
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 Attachment A to this decision record.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility considerations
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case must be supplied by the applicant in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case, nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.
Relevant country information considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of 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. The Tribunal considers the information set out in Attachment B to this decision record to be relevant in the context of the applicant’s claims for protection.
Analysis and Reasoning
The Tribunal has considered the applicants’ claims and related evidence set out in this decision record and provides the following analysis and reasoning, taking into account the relevant considerations:
42.1.The Tribunal accepts the applicants are married and citizens of Vietnam.
Business-related bribery claims
42.2.The Tribunal accepts the applicants owned and ran a business for some years in their home town of Ha Tinh, Vietnam.
42.3.The Tribunal notes the inconsistencies between the applicants’ evidence. The Tribunal accepts these inconsistencies can be accounted for on the basis that the secondary applicant was the principal operator and decision maker in the business whereas the main applicant had a lesser role given her homemaking responsibilities and a lesser knowledge and understanding of the workings and details of the business. The Tribunal therefore places more weight on the secondary applicant’s evidence.
42.4.The Tribunal accepts the applicants were required to, and did, pay bribes to low-level Vietnamese government officials in order to run their business, however there is insufficient evidence to establish the period, quantum and frequency of the bribes and their impact on the overall profitability of the business.
42.5.There is no evidence before the Tribunal to indicate the applicants were high-profile business people who would have been subject to high-level corruption.
42.6.The Tribunal notes the secondary’s applicant’s evidence that corruption is systematic in Vietnam, and not aimed at any particular individual. The Tribunal also notes the relevant country information that says low-level corruption may be seen by people as the way things are in Vietnam, through efforts have been made by the Vietnamese government in recent years to support the private sector and create a more equitable business environment, and more work needs to be done to address corruption concerns.
Mental health claims
42.7.The Tribunal accepts the applicants felt disaffected by having to pay bribes to low-level Vietnamese government officials in order to run their business, however there is insufficient evidence to establish that they suffered nervous breakdowns or psychological harm.
Participation in demonstration claims
42.8.The Tribunal notes the inconsistencies between the applicants’ evidence.
42.9.The secondary applicant claims he participated in two protests at the Formosa factory site, one by himself, and the other with his wife, in late March and early April 2014. He claims the protests were about the bad treatment by Chinese workers at Formosa of the local Vietnamese people relating to depriving them of their land and the pollution from the construction site.
42.10.The main applicant claims she participated in one protest at the Formosa factory site when it was very hot, so it must have been in May or June 2014. She claims they joined the protest of thousands or tens of thousands of people because they’d heard that if the Formosa factory went ahead it would cause pollution in the waterways and they were worried it would damage their [Product 1] business and they would lose their livelihood. The main applicant also refers to violent protests in 2017 following a chemical spill from the Formosa factory that caused significant environmental damage and loss of livelihood.
42.11.The Tribunal notes the relevant country information that refers to widely publicised protests in 2017 and 2018 in Ha Tinh as a result of a chemical spill from the Formosa Steel site resulting in decimated fish stocks and devastated fishing communities along Vietnam’s central coast. The Tribunal also notes the relevant country information makes no reference to the 2014 Formosa protests described by either the secondary applicant or the main applicant.
42.12.The Tribunal notes the online media reporting in The Guardian newspaper in May 2014 that refers to violent protests at the Formosa steel plant in Ha Tinh sparked by China stationing an oil rig in an area of the South China Sea claimed by Vietnam. The Tribunal also notes there was no media reporting of the 2014 Formosa protests described by either the secondary applicant or the main applicant.
42.13.The Tribunal accepts the applicants attended one or two protests at the Formosa site in Ha Tinh because they were generally frustrated with having to pay bribes to low-level Vietnamese government officials in order to run their business, however the applicants’ evidence is inconsistent and there is otherwise insufficient evidence to establish when the protests occurred or what they were about.
42.14.The Tribunal accepts the applicants only attended the protests and were not involved in the planning and organisation of the protests.
42.15.The Tribunal notes the relevant country information states there are no ongoing protests in Ha Tinh in relation to Formosa’s activities, however some Vietnamese landowners remain dissatisfied with their compensation payouts. The Tribunal further notes the applicants are not making any claims regarding inadequate compensation.
Police summonses claims
42.16.The Tribunal notes the inconsistencies between the applicants’ evidence. The Tribunal further notes the main applicant claims she was very confused and worried at the time of the appearance notices.
42.17.The secondary applicant claims the appearance notices dated [in] April 2014 and [August] 2014 both relate to the applicants’ participation in the Formosa protest in early April 2014. The secondary applicant claims he was not required to pay any money to police when the applicants appeared on these notices [in] April and [August] 2014.
42.18.The main applicant claims the appearance notice dated [in] April 2014 does not relate to the protest, but to other allegations made about the applicants going against the government and breaching laws. The main applicant further claims her husband was required to pay a cash fine, which wasn’t a small amount, within one or two days of the appearance.
42.19.The main applicant further claims the appearance notice dated [in] August 2014 relates to the Formosa protest she claims they joined in May or June 2014.
42.20.The Tribunal accepts the applicants each received the appearance notices dated [in] April 2014 and [August] 2014; however, the applicants’ evidence is inconsistent and there is otherwise insufficient evidence to establish what the notices relate to.
42.21.The Tribunal accepts the applicants both appeared at the police station in response to the appearance notices; however, the applicants’ evidence is inconsistent and there is otherwise insufficient evidence to establish what happened as a result of the applicants’ appearances, and what investigations were undertaken by the police.
Loan shark claims
42.22.The Tribunal accepts the applicants borrowed an amount of money from a so-called loan shark in Vietnam in order to pay out their bank loan, discharge their mortgage and sell their properties.
42.23.The Tribunal accepts the applicants have repaid the debt, being principal and interest, that was owing to the so-called loan shark.
42.24.The Tribunal does not accept that interest on the debt to the so-called loan shark can continue to accrue and compound after the debt has been fully discharged.
Asset sale/bankruptcy claims
42.25.The Tribunal notes the inconsistencies between the applicants’ evidence. The Tribunal accepts these inconsistencies can be accounted for on the basis that the secondary applicant principally looked after the applicants’ business and property matters, and the main applicant was not aware of the detail. The Tribunal therefore places more weight on the secondary applicant’s evidence.
42.26.The Tribunal accepts the applicants sold off the stock and wound down their business in Ha Tinh sometime before leaving Vietnam for Australia.
42.27.The Tribunal accepts the applicants owned and subsequently sold property in Ha Tinh sometime before leaving Vietnam for Australia.
42.28.The Tribunal accepts the applicants discharged their debts to the bank and so-called loan shark as part of selling off their stock and property.
42.29.The Tribunal accepts the applicants did not declare themselves bankrupt under Vietnamese law.
42.30.The Tribunal notes the secondary applicant’s evidence regarding the changes in the business environment and increased expenses, their pursuit of other business opportunities in Saigon towards the end of 2013, and the timing of their business wind-down in 2013 and the sale of their property in early 2014. On this basis, the Tribunal does not accept the main motivation for winding down their business and selling their property was the bribes they were required to pay to low-level Vietnamese government officials in order to run their business or the appearance notices dated April and August 2014.
Attempts to seek refugee status in other than Australia claims
42.31.The Tribunal accepts the secondary applicant travelled to [Country 1] and both applicants travelled to [Country 2] and [Country 3] in July and August 2014 to see whether they could relocate temporarily from Vietnam, however there is insufficient evidence to establish what inquiries or efforts the applicants made while visiting those countries or the basis on which they were seeking to relocate.
42.32.The Tribunal notes the applicants did not experience any difficulties with Vietnamese authorities when leaving or returning to Vietnam, notwithstanding the appearance notices dated April and August 2014.
42.33.The Tribunal further notes the applicants were not concerned about returning to Vietnam on these occasions as they had not been charged with anything, and they believed they were only under investigation and had not done anything wrong.
Reasons for coming to Australia claims
42.34.The Tribunal notes the applicants’ claims they had no intention to come to Australia permanently; rather they wanted to stay in Australia until things settled down with the protest investigation in Vietnam and then return home to their children.
42.35.The Tribunal further notes the applicants’ claims they didn’t know anything about Australian visas, they just wanted to leave Vietnam so applied for visitor visas, which they knew would only last three months.
42.36.The Tribunal further notes the applicants’ claims they were seeking refugee status in [Country 1], [Country 2] or [Country 3] even though they never applied, and that friends had encouraged them to apply for refugee status in Australia.
42.37.The Tribunal notes the applicants acknowledge they are not refugees, and they misunderstood that complementary protection affords a temporary right to stay in Australia which could be granted by the Tribunal in its discretion.
42.38.The Tribunal accepts the applicants came to Australia with the initial intention of staying only temporarily, however their evidence is confusing and unclear, and insufficient to establish on what basis they believed they were seeking to stay in Australia.
42.39.The Tribunal further notes the applicants did not apply for protection visas until 22 months after their visitor visas expired and, during that time, the applicants knew they were living in Australia unlawfully. The Tribunal does not accept the applicants have a credible justification for this conduct.
42.40.The Tribunal notes the applicants have been in Australia for nearly eight years. The Tribunal further notes the secondary applicant’s claim on the one hand that a file comes off the police blacklist after ten years, and on the other hand, the applicants think they need to stay in Australia for five more years to allow time for things to improve in Vietnam. The Tribunal does not accept this inconsistent evidence as credible. The Tribunal further does not accept the length of the applicants’ stay to date and their stated intention to stay longer is consistent with the notion of a temporary stay.
Fear of return to Vietnam claims
42.41.The Tribunal notes the applicants did not experience any difficulties with Vietnamese authorities when departing and returning to Vietnam in July and August 2014 on trips to [Country 1], [Country 2] and [Country 3], or in travelling from Ha Tinh to Saigon in 2013 and 2014, or in travelling to Australia in October 2014. The Tribunal further notes the 2015 country information regarding Vietnam entry and exit procedures (applicable to the applicants’ period of travel) is similar, in that the government imposes some limits on the movement of some individuals, particularly foreign travel by known activists. The Tribunal does not consider the applicants to have been, or to be, known activists or other persons of interest to the Vietnamese government.
42.42.The Tribunal notes the secondary applicant’s evidence that their children told him the police visited the paternal grandparents’ house a few months ago and asked about the applicants’ whereabouts. Given the generality and vagueness of this evidence, the Tribunal does not accept it as credible evidence that the applicants are being investigated by the police in relation to the April and August 2014 appearance notices. The Tribunal further notes the applicants have not received any appearance or other notices from the Vietnamese police or authorities since the appearance notice dated [in] August 2014.
42.43.The Tribunal notes the applicants have not attended and have not otherwise been involved in any other protests or anti-Vietnamese government activities, in Vietnam or Australia.
42.44.While the applicants do not agree with the bribery system in Vietnam and hope the system will be fairer in the future, the Tribunal notes the applicants accept that the requirement to pay bribes to low-level Vietnamese government officials is a necessary part of doing business in Vietnam and that all Vietnamese business owners are subjected to this systemic requirement.
42.45.The Tribunal notes the secondary applicant’s evidence that their children told him the so-called loan shark visited the paternal grandparents’ house a couple of years ago and claimed the applicants owe them money. Given the generality and vagueness of this evidence, the Tribunal does not accept it as credible evidence the applicants still owe money to the so-called loan shark. The Tribunal further notes the applicants have not received any demands from the so-called loan shark for the repayment of further money.
42.46.The Tribunal does not accept the applicants’ evidence in relation to the treatment of returned asylum seekers as it lacks credible detail and is inconsistent with the relevant country information.
42.47.The Tribunal notes the main applicant’s evidence that when they return to Vietnam, they would probably run a similar business, [Product 2] and [Product 1], because it was quite profitable. The Tribunal further notes the secondary applicant’s evidence that when they return to Vietnam, they would probably get jobs and live in the paternal grandparents’ home initially while they look for other opportunities. There is no evidence before the Tribunal the applicants claim economic harm on their return to Vietnam.
Section 424AA Adverse Information
42.48.The Tribunal accepts the applicants’ evidence in relation to the adverse information.
Findings
Based on the above analysis and reasoning, the Tribunal finds that:
43.1.If the applicants establish another business when they return to Vietnam, it is likely they will do so knowing and accepting they may be required to pay bribes to low-level Vietnamese government officials in order to run their business.
43.2.It is unlikely the applicants will participate in any protest or other anti-Vietnamese government activities while they are in Australia or when they return to Vietnam.
43.3.It is unlikely the applicants are being investigated in relation to the April and August 2014 appearance notices, and unlikely they will be arrested or imprisoned in Vietnam as a consequence of the notices.
43.4.It is unlikely the applicants will be pursued in Vietnam by the so-called loan shark for the repayment of a debt that has already been repaid by the applicants.
43.5.The applicants want to return to Vietnam.
43.6.If the applicants were returned to Vietnam, there is no real chance that either would be persecuted, and accordingly the applicants do not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
43.7.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam there is a real risk the applicants will suffer significant harm.
CONCLUSIONS
Based on the above findings, the Tribunal is not satisfied that the main applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the main applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Having concluded that the main applicant does not satisfy the criteria in s 36(2)(a) or (aa), accordingly, the secondary applicant does not satisfy the criterion in s 36(2)(b) or (c).
On the evidence before the Tribunal, there is no suggestion that the main applicant satisfies s 36(2)(b) or (c) 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 main applicant does not satisfy the criterion in s 36(2)(b) or (c).
decision
The Tribunal affirms the decision not to grant the main applicant a protection visa.
The Tribunal affirms the decision not to grant the secondary applicant a protection visa.
Kate Chapple
MemberCASE NUMBER 1929526 DECISION RECORD – ATTACHMENT A
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
CASE NUMBER 1929526 DECISION RECORD – ATTACHMENT B
Relevant Country Information
The Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022 provides in part the following information:
Corruption
2.11 Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but also that corruption is a key concern of everyday Vietnamese people. Despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months.
5.5 A distinction should be made between high- and low-level corruption. Police corruption may take the form of ‘coffee money’, a small payment at the side of the road, which may in turn be paid to superiors or other parts of Government as part of a patronage network. This may be seen by people as the ‘way things are’ and not necessarily recognised as corruption. High-level corruption, including payments by organised crime or in politics, is much less tolerated. In-country sources told DFAT such matters are likely to be investigated and severely punished.
Mental health
2.16 Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.
2.17 Stigma is a barrier to seeking treatment and some people or their families may deny that a mental health problem exists in the first place. Young people may be more willing than older people to self-describe as mentally unwell and seek treatment.
2.18 The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.
2.19 Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.
Political opinion (actual or imputed)
3.50 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. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement.
3.57 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. 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.
5.4 Sources have also reported that local police sometimes use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and religious adherents perceived as undesirable or a threat to national security.
Land and environmental compensation disputes
3.66 The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.
People who owe money to loan sharks
3.102 Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.
3.103 Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks, but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.
3.104 There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place.
3.105 Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts.
3.106 While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders.
3.107 DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large, organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.
Internal relocation
5.18 Internal relocation is common. Police keep close watch over relocation and citizens staying even one night away from their homes must register with local police. The 2020 US Department of State Human Rights Report states that this is enforced more strictly in the Central and Northern Highlands districts.
5.19 Residents’ homes need to be registered with a document known as a hộ khẩu, or household registration book. In practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. With urbanisation have come slums, particularly in large cities, as former rural residents have moved in search of work. DFAT is not aware of other cases where registration is refused; such refusal is unlikely.
5.20 There are two categories of registration (reduced from four under the previous law): temporary and permanent. Household registration requires citizens to register their permanent residence in only one district in Vietnam. To gain permanent residence status in a new district, citizens must either marry into a family already holding permanent residence, purchase land, or live-in rental housing with an official lease and a minimum amount of liveable space.
5.21 Large cities such as Hanoi and Ho Chi Minh City have previously enacted local legislation to prevent relocation. These regulations may change rapidly. For example, DFAT’s December 2019 Country Information Report reported that restrictions were in place in Hanoi to prevent rural-urban transmigration based on infrastructure and overcrowding concerns. Those restrictions were removed in 2020.
5.24 Internal relocation and re-registration in a new residence is possible, but bureaucratic difficulties may arise for certain people. For example, women whose husbands die may have difficulty getting cooperation from their in-laws, or recently released prisoners might be refused registration by police who do not want ‘troublemakers’ in their district.
5.40 DFAT understands that physical hộ khẩu books are no longer issued and have been replaced by information held in a national database that is linked to a person’s CIC (Citizen Identity Card). DFAT understands that, although the books are no longer issued, they are still in use by some.
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works.
Passports
5.41 Passports are obtained by application to the Immigration Department of the MPS, at either the Central level (in Hanoi) or the Central-City level (in Hanoi, Danang and HCMC). Applicants outside these cities apply by post (those who are abroad would contact the nearest diplomatic mission). Applicants must provide their identity card or birth certificate, an application form and two recent passport photos. MPS reviews the application in consultation with authorities in the province who verify the applicant’s identity. The process officially takes five to eight working days. Ordinary passports are valid for 10 years for individuals aged 14 years or over, and five years for children aged under 14 years.
Conditions for returnees (page 33)
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
The Department of Home Affairs Common Claims Vietnam 10 February 2022 provides in part the following information:
Political Opinion
Government responses to public criticism (pages 10-11)
Sources diverge significantly in their assessment of people’s ability to publicly criticise the government and on the authorities’ response to such activities. A broad academic consensus asserts that public criticism of authorities is both common and a core feature of Vietnam’s political landscape. This academic consensus also holds that public criticism is met with a range of responses from authorities: it is often responded to positively, it is frequently tolerated, while on occasion it is met with repression.
Public criticism of the government is commonplace and has been growing in recent years (page 11)
Although the state does not allow any formal opposition, informal criticism has been growing for decades. As summarised by one Emeritus Professor (ANU), Vietnamese people since the mid-1990s have been speaking out publicly to such a degree that it has become a prominent feature of Vietnam’s political landscape. According to the professor, public political criticism has emerged and expanded because aggravated people are anxious to be heard, and has been facilitated by the rapid spread and accessibility to most Vietnamese citizens of the internet and mobile phones. Other academic sources also highlight the role of protest and criticism of the government.
Permitting public criticism is a core aspect of state-society relations in Vietnam intended to maintain party legitimacy (page 11)
Vietnam’s political system has long included a ‘dialogical’ feature, referring to communication and influence between citizens and party-state authorities. Authorities have been unable and to a degree unwilling to stifle public criticism; concerted, aggressive campaigns to halt all political criticism would greatly risk an economic and political crisis that would create even more discontent and greater challenges to party rule. The government instead can regard protests as helpful, whether in disciplining the foreign owners of factories in Vietnam, rooting out local corruption, signalling displeasure with China, or providing a safety valve for discontent. The role of local officials at the ward level to mediate practical and flexible solutions to problems has also been described.
Red-lines, recent trends and profiles of targets
Several credible sources note that there are fairly well-understood ‘red-lines’ which function as thresholds past which authorities are unlikely to tolerate criticism (page 16)
A UNSW Emeritus Professor argues that the party pursues a mantra of ‘three no’s’ – no political opposition, no political pluralism, and no multi-party system.’ He proceeds to state that ‘those who make common cause with political activists abroad to promote democracy, religious freedom, and human rights are arrested, given perfunctory trials, and imprisoned’. According to the USDOS, thresholds topics included criticism of individual government leaders or the party, promotion of political pluralism or multiparty democracy, questioning policies on sensitive matters, such as human rights, religious freedom, or sovereignty disputes with China. Online activists and relevant experts interviewed by human rights groups articulated a similar if slightly expanded set of topics deemed off-limits for online discussion: ‘criticism of the country, government or the Communist Party, criticism of state officials, particularly high-level leaders like members of the Politburo, criticism of the police, criticism of the army, issues considered ‘state secrets’ anything that may ‘undermine the unity of the State’, such as advocating for or appearing sympathetic to ethnic and religious minorities, human rights issues, corruption in State institutions and restrictions on freedoms. Freedom House suggested that the unpredictable and non-transparent ways in which topics become prohibited make it difficult for online users to know what areas might be off-limits.
Many sources claim that repression of public criticism has intensified in recent years (pages 16-17)
One prominent local human rights group wrote of a notable crackdown on dissent in the months leading up to the National Party Congress in January 2021, as evidenced by the arrests of high-profile dissidents that had been evading government harassment for years. A second prominent local human rights group wrote of a ‘crackdown on opposition voices’ intensifying in 2020-2021 prior to the 2021 Congress and National Assembly elections in May 2021. Amnesty International similarly wrote of ‘a major crackdown on all forms of dissent’ Ahead of the 2021 Congress. Other sources adopted a longer-term perspective claiming that arrests and convictions of political prisoners and harassment of activists has intensified under Communist Party General Secretary Nguyen Phu Trong during the past five years. The ANU Professor Emeritus notes that authorities began to intensify their repression of pro-democracy dissidents in 2017, while also acknowledging that ‘numerous dissidents have not been arrested’.
The Formosa Steel Corp. toxic spill (pages 19-20)
While some activists have been prosecuted, protests responding to the Formosa Steel environmental disaster have ended.
Formosa Steel is a Taiwanese company responsible for an April 2016 chemical spill which decimated fish stocks and devastated fishing communities along Vietnam’s central coast. The company eventually agreed to pay $500 million in damages. The disaster provoked large protests against both Formosa and the government in part due to the heavy impact on the livelihoods of the affected communities. While the protests were generally permitted, throughout 2017-2018 several activists were sentenced to lengthy prison terms associated with their protests over the incident. DFAT advised in their 2022 country report on Vietnam that Formosa protests are no longer occurring, at least on a large scale, due to a deal made with the company to provide compensation to victims.
Corruption (page 23)
Authorities have demonstrated a willingness to tackle corruption, if unevenly, and sometimes for political reasons.
As Freedom House recognise, CPV and government leaders have acknowledged growing public discontent with corruption, leading to an increase in corruption-related arrests in recent years. In 20119, for example, the government reported that it had disciplined over 53,000 officials and other party members for graft.
Loan Sharks (pages 23-25)
Loan sharks charging illegal rates of interest are prevalent throughout Vietnam.
Illegal moneylending is widespread in Vietnam, is not necessarily hidden, and may be facilitated by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. In 2018, authorities detected nearly four thousand business establishments operating in ‘black credit’ (the authorities’ term for illegal moneylending), while in 2020 investigators reported around loan-shark rings operating across the country. Sources indicate that the demand for illegal or unscrupulous moneylenders has increased due to the economic contraction and financial stress associated with Covid. For example, the number of black credit cases dealt with by the Ministry of Public Security increased by 700 percent in the first six months of 2020 compared with the same period in 2019. Black credit reportedly accounts for 6-8 percent of total outstanding loans of Vietnam’s national economy. Sources published during the Covid period indicate that lenders are charging exorbitant interest rates of 300-1,600 percent per annum, beyond the legally stipulated ceiling of 20 per cent.
Authorities have recognised the seriousness of illegal moneylending and demonstrated a willingness to tackle the activities of illegal moneylenders and loan sharks.
The Ministry of Public Security (MPS) told a UK Fact Finding Mission (FFM) in 2019 that due to the seriousness of the nature of the crime of ‘black credit’, and other crimes related to it, the government had directed MPS to control the issue. As such, MPS was reported to have launched campaigns to suppress crimes relating to black credit in 2021, having previously increased investigations into illegal moneylenders in recent years through the establishment of dedicated police units in some provinces. While authorities have demonstrated a willingness to tackle illegal moneylending, they have had difficulty prosecuting loan sharks for charging illegal rates of interest as these are rarely documented on loan papers, given the prevalence of online and digital apps as preferred mechanisms of transacting with customers.
Consequences of non-payment of loans range from harassment to (less-frequently) violence. Authorities advised the UK FFM that late payment of loans could result in lenders hiring external gangs to carry out debt collection through the use of threats, ‘psychological terrorization’ such as throwing dirt, sending funeral wreaths/coffins, destroying property, injury or humiliation and causing trouble at residences or the work place. Media reported that lenders’ activities of harassment included seizing borrowers' assets, entering their homes to watch TV and play loud music, blocking their entrances and iCloud accounts, throwing rotten eggs at their children on their way to school, mailing them obituary notices, and in rare cases, kidnapping and torture. The DFAT country information report states that the potential for retaliation for unpaid debt exists and can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members’ unpaid debts. Some sources suggest that loan sharks may be able to track people throughout the country, particularly if the loan source is a gang, and sometimes with the cooperation of the police.
Social infrastructure (pages 26-27)
Vietnam has experienced rapid economic growth over the past 30 years, transforming itself into a lower middle-income country.
Vietnam has experienced rapid economic growth over the past 30 years and aims to become a high-income nation by 2045. Economic growth has been equitable, leading to a dramatic reduction in poverty and improved social outcomes…
Vietnam has an expanding if still limited social welfare system, while traditional social roles mean that families provide support for the elderly and sick.
Vietnam’s social welfare net has expanded in recent years, well beyond the anti-poverty program started in the 1990s. Modest old age and unemployment benefits exist. New programs have included assistance of 2.16 million VND (AUD $119) a year and a free health insurance card for all elderly people from the age of 80 onwards, the provision of assistance to single elderly people with limited incomes and no children; and assistance to disabled people, including victims of Agent Orange. Social benefits for people in poverty don’t kick in until the age of 60, and are below subsistence level. In Vietnam, adult children typically provide care and support to elderly or sick parents.
Household Registration System (page 28)
Household registration booklets are being phased out in Vietnam, replaced by personal ID cards linked to a digitised national data register.
According to local news sources, Vietnam’s National Assembly agreed to remove household registration books by 2023 and replace them with an online database of citizens’ information. The decision was part of the revised law on residency, which was approved by the National Assembly in late 2020. Although the law was set to take effect from July 2021, people in Vietnam are allowed to continue using their books until the end of 2022. DFAT states in its January 2022 Vietnam country report that it understood that physical household registration books are no longer issued and have been replaced by information held in a national database linked to a person’s Citizen Identification Card. New cards associated with the national database will be fitted with an electronic chip and a 12-digit personal identification number (PIN) which will remain with an individual throughout their life. The first three digits of the PIN sequence indicate the person's place of birth, the fourth number indicates the century they were born and their gender, digits five and six represent the person’s year of birth, while the last six digits are stated to be random.
Immigration and Refugee Board of Canada, Country of Origin Information, Responses to Information Requests: VNM201067.E 21 June 2022 provides in part the following information:
Viet Nam: Summonses (thư triệu tập) and arrest warrants (lệnh bắt) [order of arrest; order for the arrest], including content, appearance, security features and samples; governing regulations and issuing authorities, including the Ministry of Public Security (MPS) (Bộ Công An), prevalence of fraudulent judiciary documents; whether a person wanted by the authorities can leave the country with their passport (2020 – May 2022)
4. Invitation Letters
An invitation letter is a type of [document] used in cases where police agencies, courts or generally proceeding agencies invite people who are related to or know about the case to come to [their] office to collect information, and clarify the contents related to the case. Currently, there is no legal document specifically stipulating that citizens, when receiving an "invitation" from a state agency in general and a police agency in particular, are required to be present upon request.
Therefore, for invitations, the invitee has the choice between coming and not coming. ... However, local lawyers often advise that if there are conditions and times [specified in the letter], the person receiving the invitation should come to work with the state agencies that sent the invitation [so the individual can] know clearly how [they] are related to the case. (Professor 19 May 2022b)
The US Country Reports 2021 provides the following information regarding individuals who are invited to a police station:
In addition to actual arrest, lawyers and human rights nongovernmental organizations (NGOs) reported that, in many cases, police officers "invited" individuals to present themselves at police stations without being given a clear reason. These individuals might be held for hours and questioned or requested to write or sign reports. Many such cases had nothing to do with political or sensitive circumstances. (US 12 Apr. 2022, 7)
5. Prevalence of Fraudulent Judiciary Documents
The Professor indicated that fraudulent judiciary documents are "very rare" (Professor 19 May 2022a). The same source also stated that they had never encountered a case of police authorities issuing a fraudulent judiciary document (Professor 19 May 2022a). According to the lawyer, however, fraudulent judiciary documents are "not uncommon" in Viet Nam since it is "quite easy to replicate a passable" summons or arrest warrant (Lawyer 25 May 2022).
6. Ability of Those Served a Summons or Arrest Warrant to Exit Viet Nam
According to sources, a person who is wanted by the authorities would not be permitted to exit Viet Nam using their passport (Professor 19 May 2022a) or it would be "very unlikely" for them to do so (Lawyer 25 May 2022). The Professor stated that anyone that has been summoned or issued an arrest warrant would be "banned" from exiting the country, but only those issued an arrest warrant could be "detained" (Professor 19 May 2022a). In contrast, the lawyer noted that if a person has only been summoned by authorities but has not been served an arrest warrant or a wanted decision, there is a "significantly greater chance for them to legally" exit the country using their passport (Lawyer 25 May 2022). The lawyer also stated that "[i]n theory" authorities must issue a document indicating that one is legally restricted from leaving the country, but "in practice", even if this document has not been issued, a "wanted person" is "highly unlikely" to be able to "make their way past" border controls, particularly since MPS governs the investigatory bodies as well as the immigration control authorities (Lawyer 25 May 2022).
The Professor indicated that someone issued an arrest warrant who had already left the country would be "arrested at the border" upon their return to Viet Nam (Professor 19 May 2022a).
United Nations General Assembly Human Rights Council Working Group on the Universal Periodic Review 32nd session 21 Jan-1 Feb 2019: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 Vietnam provides in part the following information:
II. New developments in the promotion and protection of human rights since the previous review
7. The respect for, and protection and promotion of human rights have been consistently mainstreamed in Viet Nam’s socio-economic development strategies and policies, the Strategy for Judicial Reform and the implementation of Viet Nam’s international obligations and commitments, including the accepted UPR recommendations. Since the previous review, Viet Nam has made great efforts to improve its law, institutions, and policies on human rights, providing a solid framework that has yielded encouraging achievements in practice.
11. Between 2014 and 2018, Viet Nam has amended, revised and promulgated 96 new laws and ordinances related to human rights, citizens’ rights, in conformity with the 2013 Constitution… Additionally, such laws as Investment Law (2014), Business Law (2014), Law on Planning (2017), and Law on Assistance for Small and Medium Enterprises (2017) contribute to a stronger legal framework to ensure the people and businesses' freedom of doing business.
Department of Immigration and Border Protection Standard Q&A Report Vietnam: CI170217115230482 10 March 2017 provides in part the following information:
(page 4) … An October 1998 Amnesty International report indicates that many re-education camps in Vietnam were closed in the early 1990s.
Chapter 16 The Business System of Vietnam, Nguyen Thi Tuyet Mai & Mai The Cuong
(In book: Asian Business and Management: Theory, Practice and Perspectives, 2nd edition (2014). Eds. Harukiyo Hasegawa & Carlos Noronha. Palgrave Macmillan)
provides in part the following information:
(page 5) Similar to many other Asian nations, Vietnam is a strong male-biased society. Although it is stated that Vietnamese men and women are equal under the law, gender prejudices, gender stereotypes and patriarchal thinking are still predominant in many areas of the society. These habitualized attitudes effectively weaken respectful attitudes and practices towards women. However, there has been an increasing active participation of Vietnamese women in business and social activities recently. Women are recognized to contribute significantly to the economic and social development of Vietnam.
(page 5) A key element in the economic reform is the reduction of state intervention in business. The government has been trying to reduce its direct role in supervising the economy and providing support to the private sector to enhance its crucial role in the economy. In addition, significant state efforts have been spent to build a more effective and responsible state apparatus, to develop a more responsive and clean development administration, as well as to create a more equitable business environment for all participants in the economy. However, the government still needs much more effort and stronger commitment to deal with the remaining concerns such as corruption that is still considered pervasive with rank of 104th out of 142 countries in 2011 (Truong & Rowley, 2013).
(page 7) Over the past few years, the Vietnamese banking system has been quickly expanding, while the banks‟ management of risks remained weak. SBV‟s monitoring and surveillance system also does not keep pace with the banks‟ development. Recently, the high level of bad debt has become a serious problem of the SOCBs, of which SOEs, especially the big groups and corporations account for a major part. Being stuck in this problem limits the banks‟ capacity and willingness to expand loans to the private sector, which is often associated with high risks. Many private firms have experienced severe difficulties in terms of capital shortage due to inability of access to bank loans. During 2010 the interest rates were quite high, around 16-20% per annum, and besides, conditions for loan applications are complex that private firms often failed to meet. Therefore, private firms commonly resorted to alternative sources of capital such as the informal market (loan sharks) which was about US$20.8 billion in 2010 GDP value, making up as much as 20% of GDP (Truong & Rowley, 2013). The shortage of finance has resulted in thousands of firms going out of business. Further restructuring of the financial and banking system with focus on Vietnamese commercial banks is still considered a vital task in the coming time.
The National Assembly Socialist Republic of Vietnam Law on Bankruptcy Hanoi June 19, 2014 provides in part the following:
Article 2 This Law applies to enterprises and cooperatives or alliances of cooperatives…established and operating pursuant to the law.
Article 4 Insolvent enterprise or cooperative means an enterprise or cooperative failing to perform an obligation to repay a debt within three (3) months from the maturity date.
Article 8 1. The people’s court of a province or a city under central authority…has jurisdiction to resolve bankruptcy in respect of enterprises with business registration or enterprise registration and cooperatives with business registration or cooperative registration made in such province and in one of the following cases…
2. A district-level people’s court has jurisdiction to resolve bankruptcy as to an enterprise or cooperative whose head office is located in a rural district, urban district, town or city of the same province and such bankruptcy does not fall into the cases stipulated by clause 1 of this article.
SNB LAW Bankruptcy Proceedings in Vietnam September 2019 provides in part the following information:
(page 1) The legal basis for any bankruptcy proceedings in Vietnam today is still the Bankruptcy Law of 2014. Bankruptcy Law 2014 contains a definition of “bankruptcy” and “insolvency” which seems to establish a very low threshold for bankruptcy proceedings. Accordingly, an enterprise is deemed insolvent when it fails to meet its financial obligations and pay its debts within three months after such debts become due. In such case, and after a bankruptcy procedure has been carried out successfully, an enterprise is bankrupt when it is declared so by the competent People’s Court.
Under Bankruptcy Law 2014, bankruptcy proceedings will be carried out by one Judge or a team of three Judges as assigned by a Chief Justice of the People’s Court. The procedure is commenced by filing a petition to commence bankruptcy proceedings. The responsible panel of judges will then consider the petition and issue its acceptance or rejection. If the Court accepts the bankruptcy petition, it will have 30 days to decide whether to commence further bankruptcy proceedings.
(page 3) Of course, the debtor itself also has the right to file for its own bankruptcy through its representatives and other administrative organs.
It does seem, however, illogical that a debtor might want to bring this action against itself. Such a step might, after all, result in the demise of the company and also yield further consequences, such as e.g. a 3-year ban from starting another business or holding managerial positions in other companies. (Art. 130 para. 3: “[…] the Judge shall consider and give a Decision on the prohibition of the establishment of the enterprise or cooperative and working as manager of any enterprise or cooperative within 3 years from the day on which People’s Court issues the Decision on declaration of bankruptcy.”)
It can, however, be a smart strategical move in order to clear old debts and (re)start a success story after restructuring the company, as it will consolidate all pending litigation against a debtor into one bankruptcy case, which will make the situation more transparent and save time and money by streamlining the procedure and assigning clear roles and tasks to all involved parties.
The Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 31 August 2015 provides in part the following information:
5.26 The Vietnamese Constitution provides for citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’ (Article 23). In practice, the government imposes some limits on the movement of some individuals, particularly foreign travel by known activists.
The Guardian News website 16 May 2014 – At least 21 dead in Vietnam anti-China protests over oil rig
At least 21 people were killed and nearly 100 injured in Vietnam on Thursday during violent protests against China in one of the deadliest confrontations between the two neighbours since 1979.
Crowds set fire to industrial parks and factories, hunted down Chinese workers and attacked police during the riots, which have spread from the south to the central part of the country following the start of the protests on Tuesday.
The violence has been sparked by the dispute concerning China stationing an oil rig in an area of the South China Sea claimed by Vietnam. The two nations have been fighting out a maritime battle over sovereignty and that battle has now seemingly come ashore.
Early Thursday morning a 1,000-strong mob stormed a giant Taiwanese steel mill in Ha Tinh province, central Vietnam, where they set buildings ablaze and chased out Chinese employees, according to a Taiwanese diplomat, Huang Chih-peng. He said both the head of the provincial government, and his security chief, were at the mill at the time of the riots, but did not "order tough-enough action".
Five Vietnamese workers, and 16 others described as Chinese, were killed during the rioting, a doctor at a hospital in Ha Tinh told Reuters. An additional 90 people were injured in the attack.
"There were about 100 people sent to the hospital last night. Many were Chinese. More are being sent to the hospital this morning," the doctor said.
The attack on the steel mill comes just two days after other mobs burned and looted scores of foreign-owned factories in south Vietnam, believing they were Chinese-run, though many were actually Taiwanese or South Korean.
No deaths were reported in those initial attacks, and the Vietnamese government has since tried to crack down on protesters. More than 600 have been arrested since Tuesday.
The protests have sparked an exodus of Chinese nationals, many of whom have fled to neighbouring countries or further.
More than 600 are believed to have gone to Cambodia, while scores gathered at Ho Chi Minh airport and bought one-way tickets to Malaysia, Taiwan, [Country 2] and China.
On Thursday, China's embassy in Vietnam urged the police to take "effective measures" to protect Chinese citizens' safety and legal rights. China's tourism administration urged Vietnam-bound tourists to carefully consider their plans, while Taiwan's ministry of foreign affairs was printing thousands of stickers saying "I am from Taiwan" in Vietnamese and English and distributing them to local Taiwanese business owners, to help them avoid the wrath of anti-China mobs.
Anti-Chinese sentiment, while never far below the surface in Vietnam, has hit a formidable peak since Beijing's deployment of the oil rig in disputed waters in the South China Sea on 1 May.
In an attempt to assert sovereignty Vietnam quickly sent a flotilla of ships to the area; these became involved in skirmishes with 80 Chinese boats sent to protect the oil rig. China accused the Vietnamese ships of ramming its vessels after the Chinese fleet deployed water cannon against the Vietnamese. On Wednesday China reportedly sent two amphibious ships equipped with anti-air missiles as further defence.
The Vietnamese government has issued stark warnings to the Chinese that this "aggression", which had to date been met with Vietnamese diplomacy, would turn ugly if it continued.
Vietnam would "make no concession to China's wrongful acts", Major General Nguyen Quang Dam, the coast guard commander, told local media. He said: "Their violent acts have posed serious threats to the lives of Vietnamese members of law enforcement."
An article in the English-language daily Vietnam News was just as blunt: "The Vietnamese people are angry. The nation is angry. We are telling the world that we are angry. We have every right to be angry. "
"Over thousands of years we have shown we never cease fighting aggressors. We are proud of our freedom-fighting forefathers, and resistance is in our blood. We are a small country, but we are not weak. We will stand as one, united in the cause of protecting our motherland's integrity."
China's foreign minister, Wang Yi, urged Vietnam "not to attempt to further complicate and aggravate the current maritime friction", according to the state-run Global Times newspaper.
The paper said that Wang told Indonesia's foreign affairs minister, Marty Natalegawa: "China's position on safeguarding its legitimate sovereign rights and interests is firm and clear and will not change." .
On Thursday night China's top military leader blamed the Obama administration's new focus on Asia for various disputes in the East and South China seas, saying "some neighbouring countries" are using it as an opportunity to provoke problems.
Speaking to reporters at the Pentagon, People's Liberation Army's chief of the general staff Gen Fang Fenghui also warned that the US must be objective about tensions between China and Vietnam or risk harming relations between Washington and Beijing. He defended China's deployment of an oil rig in the South China Sea and said Beijing has no intention of abandoning the drilling despite the protests it has spawned in Vietnam.
While China and Vietnam have considerable political and economic ties, anti-Chinese sentiment in Vietnam goes back more than 1,000 years to when it was a Chinese colony.
The quest for sovereignty and self-rule has long been a theme, as has what Vietnam sees as China's endless provocation over maritime boundaries around the Paracel and Spratly Islands in the South China Sea – an area that about 10 countries lay full, or partial, claim to – because of its rich oil and gas reserves.
The recent attacks on Vietnam's factories and industrial parks could damage the country's economy. Industrial zones, like the Ha Tinh area where the mill was set ablaze, generate a third of Vietnam's total export revenue, according to Reuters.
Vietnam's prime minister, Nguyen Tan Dung, issued a message Thursday urging Vietnamese authorities to protect foreign investors. Businesses are expected to receive payouts for incurred damages.
While it seems the Vietnamese and Chinese governments each want to downplay the severity of the situation – a leaked Chinese government circular obtained by the online China Digital Times urged media to "not report on any news" regarding the protests – the repercussions are most closely felt on the ground.
"People don't feel safe here," Xu Wen Hong, a Chinese national who works at one of Vietnam's iron and steel companies and bought a one-way ticket to China, told Reuters. "We just want to get out of Vietnam. We're scared, of course. With all the factories burning, anyone would be scared."
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