1936320 (Refugee)

[2023] AATA 1128

1936320 (Refugee) [2023] AATA 1128 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sang Ik Moon (MARN: 1069258)

CASE NUMBERS:  1936320 and 2105557

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Paul Windsor

DATE:21 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicant a protection visa.

Statement made on 21 February 2023 at 3:05pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – church land confiscation protests – teaching children at church – particular social group – returned asylum seeker – illegal departure – detention – physical assault – fear of killing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AA, 5H, 5J, 36, 48, 65
Migration Regulations 1994, Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISIONS AND REASONS

APPLICATIONS FOR REVIEW

1. This statement of decisions and reasons is regarding applications for review of two decisions: a decision made by a delegate of the Minister for Immigration and Border Protection on 28 October 2016 (the first protection visa decision); and a decision made by a delegate of the Minister for Home Affairs on 15 April 2021 (the second protection visa decision) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Procedural history

2. There is an extensive procedural history to these cases now before the Tribunal, as follows.

3. According to Departmental records the applicant, who claims to be a citizen of Vietnam, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands in April 2013, without a valid visa, on a boat from Vietnam codenamed [name].  Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

4. The applicant was previously granted a Class UJ Temporary Safe Haven Subclass 449 Humanitarian Stay (Temporary) visa on 9 October 2015 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

5. The applicant first applied for a protection visa (a Class XE Subclass 790 Safe Haven Enterprise) visa (SHEV) on 30 March 2016. That application was not subject to the s 91K bar, and it was a valid application. Subsequently, the Minister purported to lift the s 91K bar and also lifted the s 48A bar against the making of a further protection visa application in Australia.  The applicant then made a second SHEV application, on 8 October 2020, which also was valid.

6. The first SHEV application of 30 March 2016 was refused by the delegate on 28 October 2016. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made to the Tribunal on 24 December 2019 (AAT Case Number 1936320).  The applicant provided the Tribunal with a copy of the delegate’s decision record.

7. The SHEV application of 8 October 2020 was refused by the delegate on 15 April 2021. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made on 29 April 2021 (AAT Case Number 2105557).  The applicant provided the Tribunal with a copy of the delegate’s decision record.

8. The applicant appeared before the Tribunal in a joint hearing on 13 February 2023 where he gave evidence and presented arguments regarding the issues that arise in both review applications (covering the two protection visa refusal decisions of 28 October 2016 and 15 April 2021).  At the request of the applicant, the hearing was conducted by Microsoft Teams video-conference as the applicant has relocated to Western Australia. The applicant was represented in relation to the reviews and the representative participated in the Tribunal hearing.  The combined Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

9. The applicant was advised in the hearing invitation that the hearings for both review applications would be combined, and this was explained at the hearing.  He did not indicate any issues with this approach or that there would be a single decision record covering both review applications (nor did his representative – who is the same for both review applications).

   CRITERIA FOR A PROTECTION VISA

10. To meet the criteria for a SHEV, applicants must engage Australia’s protection obligations as follows.   

11. 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.

12. 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.

13. 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).

14. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

15. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

16. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    Claims

17. The Departmental file indicates that, on 13 August 2013, the applicant made a verbal statement to staff at the immigration detention facility where he was being held at the time.  Relevant matters raised in a written account of this statement are summarised of follows:[1]

    ·He did not tell immigration officers this story on arrival as he feared for his parents, siblings, wife and children in Vietnam because the information might be released back in Vietnam.

    ·He is a Catholic and a member of his local parish.  He was elected by the church in 1998 to teach the children religion and did this until 2007.

    ·The local parish land was confiscated in 1968.  He was involved in two protests/prayer gatherings in 1998 and [in] May 2010, in the hope of having the land returned.

    ·The local authorities had the police/security disperse the group on both occasions.  In 1998 many, including him, were beaten with batons.

    ·The government returned a smaller portion, approximately a third, back to the church to hold services and help ease the conflict.

    ·There was peace and normality in the parish until the second incident in 2010, when the government decided to again confiscate the rest of the land returned in 2010 and sold it to a commercial company.  He attended a peaceful protest on 23 May 2010 as the foundations of the commercial business were under construction.  The local police attended and just monitored it.

    ·He has been involved in many protests/gatherings to fight for his right to practice his religion.  Since he started protesting he knows the police have been monitoring him as he has been summoned to the local police on several occasions about his association and involvement in the protest.

    ·He came to Australia as he realised that, as a Catholic, he has no human rights and is discriminated against.  If he was returned to Vietnam he will be monitored and his life would be in danger as he illegally escaped the country and has a previous history of fighting for the church’s rights.

    [1] See Departmental File [number].

18. In his SHEV application made on 30 March 2016, the applicant indicated he was born on [date] in [Town 1], in the [named] area of Vinh City, Nghe An Province, Vietnam.  He indicated he is [of specified ethnicity], of the Roman Catholic faith and that he married [in] July 2003.  He provided additional documentation on 19 May 2016 indicating he has [number of children].[2]

    [2] Ibid.

19. The applicant’s reasons for claiming protection were set out in a statement included with his protection visa application.[3]  The statement was prepared with the assistance of [a community legal centre] and a volunteer interpreter.  His claims from that statement are summarised as follows:

    [3] Ibid.

    ·His main reason for seeking the protection of Australia is his fear of harm at the hands of the Vietnamese government and police force on account of his Roman Catholic religious belief.

    ·He also believes he will be harmed for claiming asylum in Australia.  He fears the Vietnamese authorities are already aware that he has sought protection in Australia because he has been advised by the Department in a letter of 12 March 2014 that some of his personal information was unintentionally made publicly accessible on the Department’s website.

    ·He was interviewed by a Departmental officer [in] April 2013, shortly after he entered Australia, and asked to give a brief description of his claims (the record of the applicant’s Irregular Maritime Arrival Entry Interview indicates that, while the applicant arrived in Darwin [in] April 2013, this interview was held on 16 May 2013).[4]  It was not explained to him what was relevant and what he needed to tell the Department.  He gave incorrect information as he was scared they would tell the Vietnamese government and it is a crime to speak badly of the government.

    [4] Ibid.

    ·He is married with [number of children].  He worked on farms and as a labourer to make money and support his family.  His wife works on farms and as a hawker, selling and trading goods.

    ·He was baptised Catholic when he was a small child.  He developed his faith by going to church and attending Sunday school.  As an adult he became a member of the [Church Group1], taking part in religious activities.  He also taught at the church as a volunteer because he wanted to pass on the knowledge of his religion.

    ·Most of his church was destroyed in 1968 during the Vietnam war.  The community made an application to rebuild the church, which is on a large block (35,000 square metres) which has belonged to the parish since his great grandfather’s time.  The application to rebuild was not approved.  They had to go nearby for mass or prayer sessions which meant it was very crowded at times like Christmas.

    ·In 1998 a tent was set up on the land so the parishioners could pray there.  One day, after the tent had been there for a couple of months, the police came, beat the parishioners (there were about 1,000 parishioners), dispersed them and destroyed the tent.  During the attack he was hit with batons on his shoulder.  He still suffers soreness there when it is cold.  The situation became very tense.

    ·After that the parish priest, [Father A] (now deceased), negotiated with the authorities who offered a 10,000 square metres block of land, located 500 metres away, where they could set up a temporary place of worship.

    ·From 1998 into the 2000’s the government said the original land was to be used to erect [specified public structures].  Later, however, the parishioners found out the government had sold the block to a company in Saigon.

    ·[In] May 2010 the company began building on their original sacred block.  The parishioners tried to stop the construction but police came with batons and he was hit on the shoulder and back.

    ·He continued to attend masses at a temporary church.  Policemen disguised in plain clothes would come and monitor the parishioners – it was evident from their demeanour that they were not parishioners.  He felt he was always being watched.

    ·[In] August 2011 they had another demonstration at the church (the tent).  In his area there were 6,000 parishioners – only about 3,000 made it to their temporary church.  Under the guidance of their parish priest they took to the street for 3-4 hours and demonstrated, holding banners stating ‘justice’ and ‘we want our land back’.

    ·After the protest they went to the office of [People’s Committee] but when they got there they were not received so they marched onto all the streets in Vinh City with their banners and signs.  The police were watching and ready to stop them if there was a riot.  They felt like they didn’t achieve anything so went home.

    ·On [a day in] September 2011 they walked to the office of the [People’s Committee] and demanded action.  They were told to come back after 10 days when they would get an answer.  They returned in 10 days but did not get any answers.

    ·After that he went home and the police summoned him to attend their office in relation to the incident at the church.  Someone from the authority tried to serve the summons on him but he did not accept it because he had done nothing wrong.  He did not go to the appointment.  He was worried they would detain him.  He fears that, because of his involvement at the church meeting, when they came and beat him, they will accuse him of anti-government activity and arrest him.

    ·They sent him another summons but he still didn’t go.  After that he feared for his safety and freedom, so he left home, leaving his family behind.  When he left his home they sent plain clothed police to shadow him.  He believes they were trying to find out if he was involved in any activity against the government.  He didn’t want to do anything wrong and have them accuse him of something more serious.

    ·He fears he will be arrested for not attending in response to the police summons.

    ·In 2001 he was travelling in a car.  The two cars brushed past one another and the police arrested him.  He believes it was a pretext due to his past activities at the church in the year before.

    ·He left Vietnam because he feared his life was in danger and he could be imprisoned at any time.

    ·He can’t rely on the government and the police for protection as they are his persecutors.

    ·He has heard from others that asylum seekers from when he was in detention who were returned to Vietnam were arrested and detained by the police on their arrival at the airport.

    ·He is unable to relocate to another area of Vietnam because the risk of harm to him extends throughout the whole country.  When you relocate in Vietnam they know where you are from and everything about your past.

20. Included with his application were certified copies and certified translations of his People’s Identity Card and Marriage Certificate.  The applicant attended a SHEV interview with the Department on 12 October 2016.  At the interview he provided further copies of his Identity Card and Marriage Certificate and additional biographical information that had not been provided in the initial SHEV application.

21. The Tribunal notes that there is a copy of a decision record dated 7 December 2016 from the Immigration Assessment Authority (IAA) on the Departmental file.[5]  As this relates to an invalid legal process (the ‘fast track applicant’ process) the Tribunal did not have regard to the IAA decision. 

    [5] Ibid.

22. In the statement of claims in the applicant’s second SHEV application of 8 October 2020 the applicant provided the following relevant additional information:[6]

    ·He practised his Catholic religion at [Church 1].  His church was destroyed in 1968 during the Vietnam war.

    ·In 1998, the parishioners set up tent on the land that they could not get the authorities approval to rebuild the church.  After a month the police came and destroyed the tent.

    ·In 2010 he was involved in a vehicle accident, was arrested by police and spent [number] months imprisoned (in the Character declarations section of the application it was stated that in 2010 he was ‘involved in a vehicle accident with a bus driver’).  He believes there was a correlation to his activities at the church the previous year.

    ·If he returned to Vietnam now he will be in a lot of trouble and his life will be at risk.  Vietnam has a communist system where the government controls everything.  He cannot hide from them anywhere.  He would be arrested and jailed because he is a Catholic and was part of the protests with the [Catholic Church Group1] .

    ·Because of his involvement with the church, the authorities will accuse him of anti-government activity and arrest him.  He could be imprisoned by the Vietnamese government because of the data breach and face physical torture for his past anti-government record and because he would return as a failed asylum seeker.  He has attached a copy of an article from ABC News regarding a failed asylum seeker who says she was detained for three months and beaten.

    [6] See Departmental file [number]

1. The applicant subsequently provided a character reference dated 19 October 2020 from [Reverend B] of the [named] Parish in [Suburb 1] Victoria.[7]  [Reverend B] indicates he has known the applicant since November 2018 and he is a devout parishioner and a good person.

   [7] Ibid.

2. The delegate’s decision record for the second SHEV application, a copy of which was provided to the Tribunal by the applicant, indicates that the applicant attended an interview regarding that application on 4 March 2021.  The delegate also indicates in the decision record that:

   ·At his Entry Interview (on 16 May 2013), the applicant indicated that he came to Australia because his family was poor and he wanted to work in Australia.  It was not until his statement of 13 August 2013 that the applicant mentioned an incident that occurred in 1998 and other incidents, because of his concerns that the information might be released to Vietnamese authorities.

   ·At the Entry Interview the applicant indicated that he worked as a bus driver’s assistantO in 2001 and was arrested and detained for [number] months after a fight with another bus.

   ·At his first SHEV interview on 12 October 2016, the applicant said he was arrested and imprisoned for [number] months in 2001.  He indicated he was driving a truck that collied with a bus, had a big argument with the bus driver’s assistant, and was accused of robbing property from the people on the bus.  He indicated he believed the incident was linked to the incident in 1998.

   ·At the first SHEV interview the applicant indicated he taught children religion from 1998 until 2010.  He indicated he stopped because police officers accused him of teaching the children bad things that are against government policy.  He claimed that the police approached him 5-7 times in relation to his teaching activity and that anyone who taught the children was harassed by the authorities.

   ·At the second SHEV interview on 4 March 2021, the applicant indicated he was caught by police in 2001 because of a traffic fine and, even though it was not a serious incident, because of his previous involvement in protests the police caught him and imprisoned him for more than a year.  When asked for more details, the applicant said it was a traffic accident and he collided with another motorbike while on his motorbike, nobody was injured and there were only scratches on the motorbikes but the police accused him of disturbing the order of the street.  When queried about the previous statements indicating he was a bus driver’s assistant and had an argument with another bus, the applicant said he was on a motorbike and gently hit the bus driver’s assistant who did not did not sustain a serious injury.  When queried why he had said previously that it was an accident with another motorbike, the applicant said he was riding his motorbike and hit the bus driver’s assistant not someone on another motorbike, at which point the interpreter indicated she may have made a mistake because the applicant’s answer had not been clear.

   ·When queried that he stated in the second SHEV application that the incident occurred in 2010, the applicant said it happened in 2001 and he had made a mistake in the application.

   ·Contrary to the advice in the statement included with the first SHEV application, at the first SHEV interview the applicant stated that he was asked to report to the police after the incident in May 2010, and did so.  He said after he reported they let him go home and that was the only time he had to report to police.

   ·At the second SHEV interview on 4 March 2021, the applicant claimed that he received a summons to report to police sometime after the protest [in] May 2010.  He claimed he met with the police and was warned against engaging in protest activity and teaching lessons on Catholic theory because it was against government policy.

   ·Later in the second SHEV interview, the applicant said he was summonsed a second time, a short time after his first interview with the police.  He said he responded and met with the police, and was warned not to pass messages to the young children during his lessons.

   ·At the second SHEV interview on 4 March 2021, the applicant confirmed that his family in Vietnam continue to be practising Catholics and that a church was rebuilt around 2000-2001, on land provided by the government, and that his family attend this church.

   Evidence from the hearing

3. At the hearing the applicant confirmed that his wife, [and children of specified ages] live in the same home where he used to live in [Town 1], Vinh City in the Nghe An Province of Vietnam.  He indicated his wife still works as a hawker, commenting that she has a business in the market.  He said his [child] is studying [Discipline 1] at University in [location] while [the other child] is undertaking [specified studies].

4. The applicant indicated he completed up to Year [level] of his schooling and then worked on the family [farm].  He indicated he is currently working in a [business] in Australia and had previously worked on a [farm].

5. When asked about his Catholic faith, the applicant indicated he was a parishioner at the [Church 1] in Vinh City, where [Father A], who is now deceased, had been their priest.  He indicated the church was located about one kilometre from his home in [Town 1].  When asked, the applicant indicated that the bishop (whom he described as the senior priest) had been [Father C] (also now deceased).  The applicant indicated there were a few thousand worshippers in the parish.

6. When asked about his role in the church, the applicant said he was a member of the [Church Group1], which he said is one of ten branches of the church, and also taught ‘moral lessons’ to young children.

7. When asked, the applicant indicated there were approximately 300-400 members of the [Church Group1] when he was involved, under the leadership of [name].  He indicated that group members prayed together and undertook activities such as charity work, helping the poor and motivating the sick, and missionary work.  He added that, if there were any demonstrations, they participated in those. 

8. The applicant indicated that only a few members of the group taught the children.  When asked, said he came to have the role because he was a Catholic, was in the [Church Group1] and did whatever he could.  He said he was voted into the role because he had lived there a long time and joined in the activities.  The applicant indicated that he taught the children about the Catholic religion.  When asked for examples of what he taught them, he indicated he taught them the basics about how Jesus was born and his life.  When asked if he taught the children any prayers, he indicated he did.  He provided the names of three prayers in Vietnamese, one of which was translated as ‘Honouring the Father’ (possibly The Lord’s Prayer), and another as ‘Belief Worship’, which the applicant commented is about Jesus being the greatest and having created everything.  When asked if there were any prayers about Jesus’ mother, the applicant said there was, indicating it is about her still being a virgin even though she gave birth to Jesus (possibly The Hail Mary).

9. The applicant indicated he taught two hour sessions each night from Monday to Friday for a few months in summer.  He said he started teaching in 1998 but could not remember the exact year when he stopped.  When asked if he was still teaching just before he came to Australia, the applicant said he had stopped already by that time.  When asked why he stopped, he said it was because someone else was voted in to do the role.

10. When asked about the history of the problems he claims to have experienced with his church, the applicant commented that he was not born when the church was mostly destroyed during the Vietnam war but indicated it was damaged by bombing.  He said the parishioners sought permission to rebuild the church but this was denied.  He indicated that the church was the biggest in the area and while each of the 10 branches has its own church, they are all smaller.  He indicated these churches were not able to accommodate the thousands of worshippers who wished to attend ‘great mass’ on special occasions.

11. When asked about the tent, the applicant confirmed that it was a single tent for praying, set up in 1998 (30 years after the church was mostly destroyed in 1968).  When asked how many people could fit in the tent, the applicant indicated it was not very big and could only accommodate 100-200 people.  He said others stood outside.  The Tribunal queried why they decided to erect the tent if it could only accommodate a small number of people.  The applicant said it was so they had a place to put all the statues.

12. When asked, the applicant said it was about half a year later that police came and demolished the tent.  He said there were 300-400 people praying there at the time, including himself, and the police hit them with batons.  He said it was very chaotic.  He indicated he was hit on the back, shoulder and neck.  The Tribunal queried the applicant that in his written statement submitted with the first SHEV application, he indicated the police came about two months after the tent was set up and that there were 1,000 parishioners there at the time.  The applicant indicated more people came in response to the police action and the number grew to about 1,000.  When the Tribunal queried the applicant that the delegate’s decision record for the first SHEV application indicates that, at the interview, he stated police came a month after the tent was put up, the applicant commented that it has been a long time and he also spent time in detention so his memory is not very good.

13. When asked, the applicant indicated that, after the tent was destroyed, things were very tense.  He said the authorities negotiated with the priest and agreed a solution – that the authorities would give the parishioners a piece of land about 500 metres away, so they could build a temporary church for the people to pray at.  He indicated they were told there would be further negotiations over the disputed land but the authorities were thinking about transferring the land to create an historic heritage site.  He commented that the authorities said one thing but did another thing.

14. When asked what happened in the 12 years between 1998 and 2010, the applicant said the authorities secretly sold their land to a company in Ho Chi Minh City, the [named] company.  The Tribunal queried what happened with the new land that had been negotiated.  The applicant indicated that the authorities gave them a temporary site of 10,000 square metres while an appropriate resolution could be agreed for the disputed land, which is much bigger (35,000 square metres).  He indicated the authorities did not negotiate further, however, but secretly sold the disputed land.  

15. When asked, the applicant indicated that they did build a church on the new land that had been provided.

16. The Tribunal asked the applicant what happened in May 2010 when they found out that the authorities had sold the disputed land.  The applicant indicated that, when the parishioners discovered that the company was building foundations for a complex, they went to the site  to oppose it.  He indicated that thousands of people came to protest and the police, who had been sent by the Nghe An Province authorities, hit many people.  He said he was hit on the hands, belly and back.

17. The applicant indicated that, after the protest, because everything was so tense the company decided not to continue with the construction.

18. The applicant indicated that [in] August 2011 thousands of parishioners demonstrated, demanding that they be given the disputed land back.  When asked how the authorities responded, the applicant said they went to the office of the Nghe An Province authorities but the authorities would not meet with them so they walked around Vinh City.  He said on [the day in] September 2011 they went to the authorities in Vinh City, who are at a higher level.  He indicated there were many people, thousands, who were riding motorcycles.  He indicated they were told they would be given an answer in 10 days but there was no news so they returned on [a day in] December 2011 but still could not get an answer.  When queried that in his statement he indicated they walked to the office in Vinh City, the applicant said they rode motorcycles to the office in Vinh City, parked there and then a few hundred, including himself, actually went into the office.  When queried that they went back [in] December, he corrected himself and said they went back a month later, on [a day in] October.

19. When asked what happened after that, the applicant indicated that nothing was done about the dispute and they have still not heard anything from the authorities.  He said after he was hit, he went back home and kept teaching moral lessons to the children but the authorities spied on him and asked people to follow him because they wanted to check what he was teaching the children.  He said he was scared about what might happen and that he might be put in prison so he found a way migrate.

20. When asked how he knew people were spying on him, the applicant said they came into his classroom while he was teaching, secretly checking what he was teaching the children.  The Tribunal queried how this was secret if they were adults coming into his classroom where he was teaching children.  The applicant said he had joined the demonstration against the authorities regarding the land so they knew his face, knew what he was doing, and were spying on him and waiting until he did something wrong so they had an excuse to arrest him. 

21. The Tribunal asked the applicant when the authorities arrested him.  He said he knew the authorities were waiting for a chance.  When asked if he was ever arrested, the applicant said he was, once.  When asked, he said this was in 2001.  The Tribunal asked if he was arrested after September 2011.  He indicated he was not.

22. The Tribunal queried the applicant that he is saying he participated in protests in August 2011 and then went to the office of the [People’s Committee] in September and October 2011 but did not leave Vietnam until March 2013, around 18 months later, but was not arrested over that time.  The applicant said they did not have the opportunity to arrest him over that time as he did not give them a chance.  He said they wanted to prove that he conveyed bad news about the authorities to the children but he didn’t do anything like that.  He added that he thinks he would be arrested in the future.

23. When asked if he was ever summoned to attend their office the applicant replied, ‘not yet’.

24. The Tribunal queried the applicant that in the statement included with his first SHEV application, he indicated (at paragraphs 44 and 45) that they returned to the office of the [People’s Committee] 10 days after they went there on [the day in] September 2011 and they did not provide any answers.  He stated that after that, he went home and the police summoned him to attend their office in relation to the incident at the church; and someone tried to serve the summons on him but he did not accept it.  The applicant commented that they sent him the letter but he did not go to that appointment because he didn’t do anything wrong.  

25. The Tribunal commented that he then stated they sent him another summons but he still didn’t go; after that he feared for his safety and freedom so he left home, leaving his family behind; and when he left his home they sent plain clothed police to shadow him.  The Tribunal observed that what is in his statement is different to what he told the Tribunal just now – it makes no mention of police coming to his classes and observing what he was telling the children but states that he was fearful because they were summoning him and he didn’t want to go and meet with them so he left home; and then states that he believes plain clothes police were shadowing him.  The applicant commented that the police were shadowing him on the way to work and in the classroom.  The Tribunal observed that in his statement it says that, after he got a second summons, he feared for his safety and freedom, so he left home, leaving his family behind, which sounds like he wasn’t going to work or going to a classroom but had gone into hiding.  The applicant said what was meant is that he left home and his family to go to work and the police followed him, not that he left his family and went overseas.  The Tribunal clarified that it is not suggesting he left his family at that time to go overseas, but that he went into hiding in Vietnam away from his family home.  The applicant said there was a period of time when he moved to another area away from his family to avoid being followed.  He added that he returned to his family after a short period of time.

26. The Tribunal asked the applicant if the police ever questioned him about what he was saying to his students.  The applicant replied, ‘no’.  The Tribunal observed that, in the decision record for the second SHEV application, the delegate states that at the first SHEV interview he indicated that he was questioned by the police 5-7 times regarding what he was teaching the children; and at the second SHEV interview he indicated that, when he was summonsed, he went and met with the police and was warned about protesting and teaching lessons to the students on Catholic theory.  The Tribunal commented that he just said that the police did not speak with him about what he was saying to the students.  The applicant asked what occasion the Tribunal was referring to.  When the Tribunal said it is referring to the period after he and other parishioners went to the authorities’ office in Vinh City, the applicant indicated he was summoned but he can’t remember exactly how many times.  He then said he is not sure if he received the summons.

27. In relation to his claimed arrest, the Tribunal observed that the applicant indicated earlier in the hearing that he was arrested in 2001 but noted that there has been some differences in what he has stated about whether he was arrested in 2001 or 2011 (the Tribunal mistakenly said 2011 when in the second SHEV application the applicant had actually stated he was arrested in 2010).  The Tribunal asked the applicant if he is confirming that he was arrested in 2001.  The applicant said he was arrested in 2001.  When asked why he was arrested in 2001, the interpreter commented that the applicant just corrected his comment to say he was arrested in 2011 not 2001.

28. The Tribunal asked the applicant when in 2011 he was arrested and why.  He said in 2011 he was involved in a road accident but it was nothing serious.  He said the police used it as an excuse to arrest him because he joined the demonstration.  The Tribunal asked what happened in the road accident.  The applicant said he was arrested and put in prison.  When asked what the incident was, he said there were just two people, him and one other who hit each other and while there were just minor scratches the authorities followed him and used it as an excuse to arrest him.  The Tribunal asked if they were driving cars.  The applicant indicated they were both on motorbikes and they bumped into each other, causing minor scratches but the police blamed him, using it as an excuse.

29. The Tribunal asked the applicant how long he was imprisoned for.  He indicated he was sentenced to [number] months but they decreased it to [number] months.  He said after he served [number] months he went home.  The Tribunal asked when he started serving the sentence.  The applicant said he could not recall the exact day or month, just that it was in 2011.  When asked if it was around the start or the middle of 2011, the applicant said he can’t remember.  When pressed, the applicant suggested it was close to the middle of the year.  The Tribunal asked how, if that was the case, he could have attended demonstrations [in] August [and] September 2011.  The applicant replied indicating that middle of the year means towards the first half of the year.  The Tribunal observed that, if he served [number] months, that would still mean he would have been in prison in August and September 2011.  The applicant said he can’t remember the exact time because it was a long time ago.

1. The Tribunal observed that, as well as providing different timeframes, he has also provided different accounts of what happened in this incident.  The Tribunal commented that in his statement he said it happened in 2001 when he was travelling in a car and two cars brushed past each other.  The applicant commented that it was motorbikes not a car.  The Tribunal indicated that the decision record for the second SHEV application indicates that in the interview for that application he stated he was in a vehicle accident in 2010 which involved a bus driver; but indicates that he stated at the first SHEV interview that he was arrested and imprisoned for [number] months in 2001 when his truck hit a bus and he argued with people from the bus. The applicant said the incident involved two motorbikes and maybe they didn’t hear clearly.  The Tribunal commented that the differences are also in his written statements, noting that paragraph 46 of his statement refers to the incident occurring in 2001 and involving two cars.

2. In relation to the Departmental data breach that occurred in February 2014, the Tribunal observed that the information that was unintentionally placed on the Department’s website indicated the names of people who were in Immigration detention at that time but did not indicate that they had sought protection or what their claims for protection were.  The Tribunal commented that it does not seem like that information would cause the Vietnamese authorities to think he was saying negative things about them because he had travelled to Australia without a visa and therefore was in immigration detention.  The applicant commented that information was leaked on social media about what individuals had said.  He added that if it is on social media the Vietnamese authorities will also know about it and when he returns to Vietnam he will be affected.  The Tribunal commented that the information released consisted of people’s names, dates of birth and that they were in immigration detention, not that people had sought protection or what they said about the reason why they needed protection.  The applicant responded that while they heard information from the Department of Immigration that information about ‘’boat-men’ had been leaked, they were not told what information was leaked.

3. In relation to his illegal departure and possible return as a failed asylum seeker, the Tribunal shared with the applicant relevant advice drawn from the current DFAT Country Information Report, as follows.[8]  Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.

   [8] DFAT Country Information Report, Vietnam, 11 January 2022, sections 5.29-5.31 and 5.34-5.35.

4. In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.

5. 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.

6. 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.

7. DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. This applies to the majority of returning Vietnamese, including those who have departed to seek asylum in Australia (DFAT indicates this does not apply to those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically).

8. The applicant indicated he thinks it depends on the circumstances of the person, their particular stories, whether they got involved in anything in Vietnam, and if their statement was not accepted by the Department.  He added that no-one can guarantee what would happen to him if he returned.

9. In relation to the situation for Catholics in Vietnam, particularly for people in Nghe An Province, the Tribunal observed that country information indicates there were problems between Catholics and the authorities in Nghe An province in the early 2010s, including due to the forced acquisition of land, and there were large scale protests by thousands of Catholic worshippers in response.  The Tribunal noted, however, that the situation seems to have improved fairly dramatically since that time.[9]  Country information indicates that in 2013 clashes of Catholics with government authorities over land ownership had been reported in two places in Nghe An province – the capital Vinh City in January and in the My Yen parish in April, August and September.  In September 2014 the Bishop of Vinh diocese was reported as saying that since the September 2013 clashes, ‘dialogues have helped address the situation’.[10]

   [9] ‘Report on Violations of Religious Freedoms in Vinh Diocese – Nghe An – Vietnam’, To: Special Rapporteur of the United nations on Freedom of Religion or Belief, Democratic Voice of  Vietnam, Microsoft Word - Report on Violations of Religious Freedom in Nghe An 2011-2013 (dvov.org);

   [10] ‘My Yen Incident, September 2013, Christian Solidarity Worldwide, 31 October 2013, My Yen incident, September 2013 - CSW;

10. The Tribunal observed that the current DFAT report indicates that, while Vietnam is officially an atheist state, Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion.[11]  A new law on Belief and Religion came into effect on 1 January 2018, which established a role for the state in protecting religious freedoms, but it requires religious groups to register with the government.  The report indicates that Catholics, who comprise 6 per cent of the population (of approximately 100 million people), are one of the largest religious groups in the country, registered groups worship with limited or no Government interference, and Catholics are among 38 religious groups that are recognised.  DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities. 

    [11] DFAT Country Information Report, Vietnam, 11 January 2022, sections 3.22-3.31

11. Nghe An province is one of the places with the highest concentration of Catholics in Vietnam, and in-country sources report that Catholics are generally able to practise freely at registered churches.  DFAT comments that, in general, relationships between the Government and the Church are cordial.

12. DFAT also comments that the ‘Red Flag Association’, a militant pro-Government movement allegedly under the direction of local governments, was reported to have disbanded in 2018. Red Flag Association activity included protests outside Catholic churches but in-country sources told DFAT that these protests have not occurred in the last two years. 

13. DFAT comments that in-country sources told it Catholics generally do not experience societal discrimination.  DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation.

14. When asked if he wished to comment on any of the information the applicant said he would like his representative to make a submission.

15. The representative proceeded to read a prepared statement in English, but both the Tribunal and the interpreter experienced difficulties in hearing and understanding what he was saying.  As a consequence, the Tribunal asked the representative if he could submit a copy of the statement to the Tribunal.  It was agreed this would be done the following day.

    Post-hearing submission

16. A copy of the representative’s submission was received on 14 February 2023.[12]  The submission indicated:

    ·Protestors against land use policies and compulsory official land acquisition are often dealt with harshly or violently by the Vietnamese authorities.

    ·The applicant established an adverse political profile because of his activities.

    ·The applicant received the official sanction in Vietnam as a result of his claimed involvement in a land rights dispute. He was personally targeted for further surveillance and shadowed by plain clothes police after these events. He was silently monitored by the Vietnamese authorities while he was teaching young people from [May] 2010 until he departed Vietnam in 2013.

    ·On [a day in] August 2013, the applicant had been summoned to the local police on several occasions about his association and involvement in a protest in 2010. This kind of surveillance was getting more and more intense so he couldn't stay in Vietnam any longer. He had no choice but to leave Vietnam illegally by boat [in] April 2013.

    ·If he returns to his home country, the applicant will be harmed by the Vietnamese government due to his anti-Vietnamese Government political opinion stemming from his involvement in the land rights dispute.

    ·Based on that information, there is a real chance that on return to Vietnam the applicant would suffer imprisonment or harm to his life as a result of his Catholic faith by the Vietnamese government authorities.

    [12] See the Tribunal files.

    Findings and reasons

    Identity

17. On the basis of the copies of his Vietnamese National Identity Card and Marriage Certificate submitted to the Department,[13] and noting the delegate’s findings in relation to this matter, the Tribunal accepts that the applicant is a national of Vietnam and that his identity is as claimed. The Tribunal accepts that Vietnam is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [13] See the Departmental files.

18. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.

19. For the following reasons the Tribunal has concluded that the decisions under review should be affirmed.  

    Credibility

20. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

21. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

22. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

23. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

24. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

    Assessment of claims

    Background and Catholic faith

25. The Tribunal finds the applicant is [an age] year old man (born in [year]) of the Catholic faith from [Town 1], Vinh City in Nghe An province, Vietnam as claimed.

26. The Tribunal accepts that the applicant was a member of the [Church Group1], which he indicated had 300-400 members, and prayed and undertook activities such as charity work with other members of this group.  The Tribunal also accepts that the applicant provided religious instruction to children on weekday evenings in the summer months.  The Tribunal finds that there is nothing in the applicant’s evidence to indicate he had a leadership role within the [Church Group1].

27. At the hearing the applicant indicated that he taught the children from 1998 but could not recall when he stopped.  While he indicated he was not teaching the children immediately before he came to Australia in April 2013, when first asked about this he said he stopped teaching the children because someone else was voted in to do the role.  As indicated in the delegate’s decision record for the second SHEV application, in the statement the applicant provided to immigration officers at his detention centre on 13 August 2013 he indicated he taught religion to Catholic children from 1998 until 2007.  That delegate indicates in his decision record, however, that at the first SHEV interview, held in October 2016, the applicant indicated he taught the children from 1998 until 2010, while at the second SHEV interview, held in March 2021, the applicant indicated he taught the children from 1998 until 2012, in May and June during summer holidays.  Given the lack of consistency in the applicant’s evidence regarding when he stopped teaching the children, which he was not able to clarify at the hearing, the Tribunal finds it cannot state with any confidence when he ceased teaching.

    Claimed dispute over church land

28. Noting the country information cited in the delegate’s decision record for the second SHEV application, the Tribunal accepts the applicant’s evidence that a large Catholic church, located on a significant parcel of land (35,000 square metres) about one kilometre from the applicant’s home in [Town 1], was mostly destroyed in 1968, before the applicant was born, by bombing during the Vietnam war.

29. The Tribunal accepts that local parishioners sought permission to rebuild the church on that land but permission was denied.  The Tribunal accepts that in 1998, when the applicant was [age] years of age, the authorities sent police to destroy a tent that parishioners had erected on the site and that parishioners who were present at the time were hit with batons.  The Tribunal accepts that the applicant was among the 1,000 parishioners present and was hit as claimed.

30. The Tribunal notes that, consistent with the country information, the applicant has indicated that, following negotiations between the parish priest and the authorities, the authorities gave the parishioners a smaller parcel of land (10,000 square metres) located 500 metres from the disputed site and that a church has been erected on this site which is still in operation and which the applicant’s family in Vietnam continued to attend.

31. The Tribunal accepts that there was a major protest by thousands of parishioners at the site of the destroyed church [in] May 2010, when a construction company sought to commence building work at that site because it had been sold by the authorities.  At the hearing the applicant claimed that he was also beaten during this protest, along with many other people.  This is consistent with what he stated in both SHEV applications and at both Departmental interviews.  The Tribunal notes, however, that it is inconsistent both with what was stated in the applicant’s statement to Immigration officers of 13 August 2013 (where he indicated that he attended a peaceful protest on [that day in] May 2010 which the local police attended and just monitored) and with country information cited by the second SHEV delegate, which describes the protest as peaceful and makes no mention of a police crackdown.  Given other concerns regarding the applicant’s evidence discussed below, the Tribunal is not convinced that the applicant was hit with batons at the protest [in] May 2010.

32. The Tribunal accepts that the applicant, along with thousands of other parishioners, participated in a demonstration [in] August 2011 where parishioners took to the streets with banners seeking the original parcel of land back and unsuccessfully sought to meet with the [People’s Committee].  The Tribunal also accepts that the applicant may have participated in a subsequent protest [in] September 2011 where thousands went on motorcycles to the Office of the [People’s Committee] and a delegation sought an audience with authorities, who told them they would have a response in 10 days.

33. The Tribunal accepts that, over the period from around [May] 2010, the authorities may have had police and/or security officials in plain clothes attend church services/masses to try to gain intelligence on any planned protest activities.  The Tribunal does not accept, however, the applicant’s claims that police in plain clothes came to observe him teaching the children. This is because the Tribunal considers it would have been obvious that these people were outsiders there for that purpose and, even if children were being encouraged to protest, the applicant would not have done that while there were adult non-parishioners in his classroom.

34. The Tribunal does not accept that the applicant was ever summoned or summonsed by the authorities or that he was ever questioned by police about his activities or warned about what he was saying to the children he taught.  The Tribunal found the applicant’s evidence in relation to this issue to be vague, inconsistent and unconvincing.  As discussed with the applicant at the hearing, in the statement included with his first SHEV application he indicated that he was ‘summoned’ on two occasions after the 2011 demonstrations and an attempt was made to serve a summons on him, but he did not accept the summons and did not attend the police office.  He stated he fears he will be arrested if he returns to Vietnam because he did not attend the police office in response to the summons.  In his second SHEV application, however, he made no mention of being summonsed.  At the first SHEV interview he indicated that he was approached by the police on 5-7 occasions and accused of teaching the children bad things that are against government policy.  At the second SHEV interview the applicant claimed that was summonsed on two occasions, the first time being sometime after the protest [in] May 2010, and met with police on both occasions.  He stated that the first time he was warned against engaging in protest activity and teaching lessons on Catholic theory and the second time was warned not to pass messages to the children during his lessons.

1. As outlined in the evidence from the hearing section above, when asked at the hearing if he was ever summonsed by the authorities, the applicant indicated he had not been.  He also indicated he was never questioned by police about what he was saying to his students and, as noted above, when first asked about why he stopped teaching the children Indicated it was because someone else was voted in to do the role, not because he was being harassed by the police about what he was saying to his students.  He altered his evidence regarding being summonsed, however, when the conflicting accounts were discussed with him, firstly to say he got a letter but did not attend because he had not done anything wrong.  Subsequently, he stated he was summonsed but can’t remember exactly how many times.  He then stated he is not sure if he received the summons.

2. The Tribunal found the applicant’s evidence regarding his claimed arrest to be similarly vague, inconsistent and unconvincing.  As noted in the delegate’s decision record for the first SHEV application, in the record of the Entry Interview held on 16 May 2013 it states he indicated he was arrested in 2001 when he was working as a bus driver’s assistant and was fighting with another bus.  In the statement of 13 August 2013 he made no mention of being arrested.  In the statement included with the first SHEV application he stated he was arrested in 2001 when travelling in a car that brushed another car.  At the first SHEV interview (as documented in the decision record of the second SHEV delegate), he indicated that the incident occurred in 2001 when his truck hit a bus.  In the second SHEV application it states in 2010 he was involved in a vehicle accident with a bus driver.  At the second SHEV interview, however, he stated the incident occurred in 2001 and the reference to 2010 was a mistake.  He appeared to firstly state he was arrested by police in 2001 because he was in an accident involving two motorbikes but when queried about the conflicting accounts, stated only he was riding a motorbike and he hit a bus driver’s assistant. 

3. At the hearing the applicant initially indicated he was arrested in 2001 but when queried about the conflicting accounts, after initially confirming the incident was in 2001, he altered his account to state he was arrested in 2011 (the Tribunal accepts and has taken into consideration that the applicant may have said 2011 (rather than 2010) because the Tribunal mistakenly commented that he has given conflicting accounts of whether the claimed incident occurred in 2001 or in 2011).  When asked what happened, the applicant indicated he brushed another person when both were riding motorbikes, causing only minor damage.  When queried about the conflicting accounts of what occurred, the applicant maintained the incident involved two motorbikes, commenting that maybe ‘they’ didn’t hear clearly.  The Tribunal considers the significant and material differences between the various written and oral accounts cannot be explained by various interpreters possibly mishearing what the applicant said.  The Tribunal does not accept that the applicant was arrested and imprisoned for [number] months in 2001, 2010 or 2011 for a traffic incident that was used by authorities as a pretext to detain and imprison him.

4. In reaching the above conclusion, the Tribunal has also given weight to the applicant’s inability to link the claimed incident to a particular date when there was protest activity, given he claims that the authorities used a minor traffic incident as a pretext to imprison him because of his protest activities.  If this was the case, the Tribunal considers the applicant would be able to either link the claimed incident to the 1998 protest, where he states he was beaten, or the [May] 2010 protest.  If he was arrested and imprisoned for [number] months in response to his participation in the [May] 2010 protest, however, he would not have been able to participate in further protest activity [in] August 2011 (less than [number] months later), as claimed.  If he was arrested in 2011 as he indicated later in the hearing, it would have had to have been shortly after [the day in] October 2011, when he claimed to have been among parishioners who returned to the office of the [People’s Committee], but there is nothing in any of his evidence to indicate or suggest that he was imprisoned for [number] months from late 2011 or any time after that before he departed Vietnam in April 2013. 

5. The Tribunal specifically asked the applicant at the hearing if he was arrested after September 2011 and he indicated he was not.  When queried that if police had wanted to arrest him because of his involvement in protest activities from [May] 2010 through until September 2011, they could have done so over the 18 month period from September 2011 until he departed Vietnam in April 2013, the applicant said they did not have an opportunity to arrest him over that time because he did not give them a chance.  The Tribunal does not accept that the applicant was ever imprisoned after a minor traffic accident because the authorities used it as a pretext to punish him for participating in protest activities.

6. The Tribunal considers, however, that if the applicant was seen as a threat to the state he would have been detained.  DFAT comments that threats to the legitimacy of the Communist Party of Vietnam (CPV) are seen as threats to the state and are not tolerated.  Those who publicly criticise the government face a moderate risk of official discrimination regardless of what they are protesting about, and the possibility of even low-level activists being arrested cannot be discounted.[14]  Accordingly, the Tribunal does not accept that the applicant was of any interest to the Vietnamese authorities including the police because of his involvement in protest activities in 1998 and in 2010-2011, membership of the [Church Group1] or his activities teaching children about the Catholic faith for two months each summer.  The Tribunal does not accept the representative’s assertions that the applicant has an adverse political profile because of his activities; that he was officially sanctioned while he was in Vietnam; that he was personally targeted for further surveillance and silently monitored while he was teaching young people from May 2010 until he departed Vietnam in 2013; or that he was summoned to the local police on several occasions. 

   [14] DFAT Country Information Report, Vietnam, 11 January 2022, sections 3.49 and 3.56-3.57.

7. The Tribunal also finds that there is no evidence to indicate that the applicant has been involved in any activities in Australia that might be considered to amount to publicly opposing the CPV Government of Vietnam.  The available country information does not indicate that protest activity in relation to the [Church 1] land is ongoing and the applicant has indicated that his family attend the church built on the alternative site.  The Tribunal does not accept, therefore, that if the applicant returned to Vietnam, he would engage in protest activity that might be perceived to challenge the authority or interests of the CPV Government of Vietnam and its policies.  Accordingly, the Tribunal finds that the applicant does not face a real chance of being harmed by the Vietnamese government due to being seen to have an anti-Vietnamese government political opinion stemming from his involvement in a land rights dispute.  The Tribunal does not accept there is a real chance that the applicant would be arrested, detained, imprisoned, suffer physical harm or be killed as a result of his Catholic faith and/or because of his past involvement in protest activity (along with thousands of other Catholic parishioners), in relation to the dispute over the land associated with the [Church 1].

8. In relation to the applicant’s Catholic faith, the Tribunal finds that the relevant country information does not support the contention that Catholics in Vietnam face a real chance of suffering persecution involving serious harm simply because of their Catholic faith.  As noted above, DFAT indicates that Catholics generally do not experience societal discrimination and assesses that Catholics who belong to registered churches (as the applicant does) and are not politically active face a low risk of official harassment.  DFAT indicates that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation.

9. DFAT indicates that Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.[15]  For the reasons set out above, the Tribunal finds that the applicant has not been, and in the future would not be, perceived to challenge the authority or interests of the CPV and its policies.

   [15] DFAT Country Information Report, Vietnam, 11 January 2022, section 3.31.

10. The Tribunal finds there is not a real chance the applicant would suffer treatment amounting to persecution involving serious harm from the Vietnamese authorities due to his Catholic religion and/or actual or imputed political opinion of opposition to the CPV Government in Vietnam, if he returned to Vietnam now or in the reasonably foreseeable future.

11. In reaching this conclusion the Tribunal considered the character reference letter for the applicant of 19 October 2020, provided by [Reverend B].  In his letter the Reverend comments that the applicant has been in Australia because of ‘escaping the communist’s cruel injustice and persecution’.  Given the Reverend has only known the applicant since November 2018, has not provided any other information regarding the applicant’s activities and circumstances in Vietnam or the situation in Vietnam, and given its findings above, the Tribunal gives this statement no weight.

    Claim to fear harm due to the ‘data breach’ and having applied for refugee status in Australia

12. The Tribunal accepts that the applicant would have been affected by the Departmental data breach in February 2014 and it is possible Vietnamese authorities have accessed this data and know that he was in Immigration detention in Australia in January 2014.  As discussed with the applicant, the data released did not indicate that people had applied for protection visas or the basis on which they had made such applications.  The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm as a consequence of the data breach, or that the breach compounds any risk of harm he might face for other reasons discussed above or below.

    Return as a failed asylum seeker who departed Vietnam illegally

13. The Tribunal accepts that the applicant departed Vietnam illegally.  The Tribunal also accepts that Vietnamese authorities may be aware that he was in immigration detention in Australia in January 2014 because of the data/privacy breach by the Department in February 2014.  Neither of these events would indicate to the Vietnamese authorities that the applicant made a protection visa application in Australia or the basis for that application.  The Tribunal accepts that if the applicant was returned to Vietnam involuntarily, or sought a Vietnamese passport to return to Vietnam voluntarily, the Vietnamese authorities might assume he was a failed asylum seeker who had departed Vietnam illegally.

14. As discussed with the applicant at the hearing, the Tribunal finds the relevant country information (cited above) indicates that he would likely be questioned by Vietnamese authorities upon his arrival in Vietnam, that this interview would likely take between one to two hours, and the interview would likely focus on obtaining information about the facilitation of his illegal departure.  As DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose, it is most unlikely he would be held overnight.  In line with the DFAT advice, the Tribunal finds that, as someone who was a would-be migrant who employed the services of people smugglers, he would, at worst, only face an administrative fine.  In this regard, the Tribunal notes DFAT’s advice that being a failed asylum seeker is not generally stigmatised, that migration has been a feature of Vietnamese lives for decades and is very common and that most people who have been subject to people smuggling are seen by the Government as victims, not criminals.

100.   While the applicant stated that he has heard from others that some asylum seekers have been arrested and detained on their return to Vietnam, and commented that no one can guarantee what might happen to him on return, given the DFAT advice and the Tribunal’s findings above regarding the applicant’s activities and that he was not being sought by the police and/or security authorities in the past, the Tribunal considers the applicant could return to Vietnam without facing a real chance of suffering treatment amounting to persecution involving serious harm.  In this regard, the Tribunal finds that a possible administrative fine for departing Vietnam illegally using a people smuggler does not amount to persecution involving serious harm, or to significant harm.

101.   In reaching this conclusion the Tribunal has also considered the ABC News article submitted by the applicant but, as is the case with the applicant’s statement regarding what he has heard from others, gives this little weight as the Tribunal does not know the background of person referred to in the ABC News article or the asylum seekers referred to by the applicant and is not in a position to assess the veracity of those accounts.  The Tribunal gives significant weight to the DFAT advice.

Conclusion - Refugee criterion

102.   Having carefully considered all the available evidence, the relevant country information and the applicant’s claims, both individually and cumulatively, the Tribunal concludes there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from the CPV Government of Vietnam, its authorities and agencies including the police and security authorities; or any other agency, organisation, group or individual, because of his Catholic religion, an actual or imputed political opinion of opposition to the CPV Government of Vietnam, or for any other of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Vietnam now or in the reasonably foreseeable future.

103.   Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection criterion

104.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

105.   In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[16]

[16] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

106.   Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

107.   Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

108.   Considering the applicant’s circumstances and his claims individually and cumulatively, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from the CPV Government of Vietnam, its authorities and agencies including the police and security authorities; or any other agency, organisation, group or individual.

109.   Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Member of the same family unit

110.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2).

111.   The Tribunal affirms the decisions not to grant the applicant a protection visa.

Paul Windsor

Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

‘Vietnam: mass protests after government crackdown on Catholic Church’, ICN Independent Catholic News, 15 July 2012, Vietnam: mass protests after government crackdown on Catholic Church | ICN (indcatholicnews.com);
‘Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom’ AsiaNews.it, 16 July 2012, VIETNAM - VATICAN Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom. (asianews.it);
‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia, 10 September 2014, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia, 10 September 2014,

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1936320 (Refugee) [2023] AATA 1128

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