2004647 (Refugee)

[2021] AATA 621

2004647 (Refugee) [2021] AATA 621 (24 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004647

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Senior Member Dr N Manetta

DATE:24 February 2021

PLACE OF DECISION:  Adelaide

DECISION:

The Tribunal affirms the decision under review.

Statement made on 24 February 2021 at 5:02pm

CATCHWORDS

REFUGEE – Safe Haven Enterprise Visa – Vietnam – religion – Roman Catholic – participation in Australia in rallies conducted by the Viet Tan – not a member of Viet Tan – failed asylum seeker – strengthen a refugee claim – credibility concerns –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application [Mr A], a citizen of Vietnam, seeking a review of a decision made by a delegate of the Minister for Immigration on 4 March 2020 to refuse him a Safe Haven Enterprise Visa (Class XE) Subclass 790 visa under s 65 of the Migration Act 1958 (“the Act”).

2. Mr [A] applied for the visa on 18 September 2019. The delegate refused to grant the visa because he concluded that Mr [A]’s claim that he had participated in protests in Vietnam was untrue, and the delegate further concluded that the authorities in Vietnam did not have any interest in Mr [A].

3. Mr [A] appeared before the Tribunal on 5 January 2021 to give evidence and present his submissions. Mr [A] had earlier requested an opportunity to secure legal representation.  The Tribunal adjourned the hearing on that occasion to enable Mr [A] to make inquiries.  At the resumed hearing on 5 January 2021, Mr [A] advised the Tribunal that he had not found a lawyer to assist him and further advised that he wished the hearing to proceed without another adjournment.  I am satisfied that Mr [A] was quite clear that he did not desire a further opportunity to secure representation.  I heard evidence from Mr [A] alone as he advised that there were no witnesses he wished the Tribunal to contact.  The hearing was conducted with the assistance of an interpreter in the Vietnamese language.

   TRIBUNAL’S TASK

4. The Tribunal’s task is to decide whether to affirm the decision under review or to set it aside. The proceeding in the Tribunal is known, technically, as a de novo hearing on the merits.  That is, I must decide the matter afresh on the evidence before me. I may set aside the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding the absence of any discernible error in the decision under review; equally, I may affirm the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding an error in the delegate’s reasoning.

5. In this case I have decided to affirm the decision under review. I now set out Mr [A]’s submissions and version of events, my factual findings, and my reasons for this conclusion.

   MR [A]’S SUBMISSION AND VERSION OF EVENTS

6. The essence of Mr [A]’s submission to me is that he would be persecuted if he had to return to Vietnam.  There are two aspects to this submission.  

7. First, Mr [A] says he fears persecution because of his past protest activities.  Mr [A] claimed to be of the Roman Catholic faith, which I accept, and he said his safety concerns stem from his participation in a protest in 2012 against the Government near a Catholic Church in [Town 1] resulting in his arrest and a summons, which he did not answer.  Secondly, Mr [A] points to his participation in Australia in rallies conducted by the Viet Tan, which he submitted, and I accept, is considered a terrorist organisation by the Vietnamese Government.

8. Mr [A] said he was born on [date] in [District 1]in the province of Nghe An in Vietnam.  He has [siblings]. His mother and father are still alive and are living in [District 1]. He was raised and educated there. He has a number of aunts and uncles.  [Details deleted].

9. Mr [A] gave evidence that he joined a protest in July 2012 in [Town 1].  He was the only member of his family to attend it. He was only [age] at the time. He said that he had heard about the protest because it was being discussed among members of his church community in [District 1]. He claimed the local priest had encouraged community participation in the protest. He said the protest was organised to voice demands for the return of human rights and freedom of religious expression.  Mr [A] said [Town 1] is approximately one-and-a-half hours by car from [District 1].

10. Mr [A] said that he did not know the exact date of the protest in July 2012, but that it probably occurred on the [dates]. He discussed going to the protest with his parents. They let him go but told him to be very careful. Mr [A] gave evidence that thousands arrived on the day of the protest.  He arrived in [Town 1] at about 8:30 am. Everyone was gathering at the local Catholic church. Some protesters were milling about while others remained still, he said. He was part of a very large group of people. People were yelling: “Give us back the right to practise religion!”  He, too, was yelling this out, he said.  Mr [A] described himself in his evidence as a religious person.

11. Mr [A] said that there police were in attendance: some were in uniform, others in plain clothes. He joined the protest even though he noticed the police presence. When he arrived he did not see the police attacking anyone, he said, but they did attack people later.  The police suddenly began to smash things, he said, and beat the protesters with wooden bats, throwing smoke grenades among them.

12. Mr [A] said he was captured by police along with many others. He was taken to the police station in [Town 1]. He said he was transported in a vehicle that contained seven to eight people. He said he was among hundreds who were arrested and taken to the police station that day. He saw many people arriving at the station in vehicles. At the beginning, people were put together, he said, but later they were separated into individual rooms.  He was eventually put in a room by himself, and was left there for some one to two hours.

13. Then the police interrogated him. They first asked for his name and address. He said he was forced to give these details. He was then asked who had persuaded him to join the protest. The police then gave him a statement that he was not allowed to read. Mr [A] said that the police slapped him in the face and forced him to sign the statement. He was very frightened at this stage. No copy of the statement was ever given to him.

14. Mr [A] said that he was kept at the station for some two days. His parents were then called by the police, and they came to collect him. He slept in a room by himself for these two days with no contact. After signing the statement, he was left in a room where he was fed. He said that he does not know what happened to the others who were arrested.

15. Mr [A] said that when he returned home, his parents asked him what had happened. They were afraid and said clearly: “That boy will definitely go to jail.”  He became fearful, he said, that he would be jailed.

16. His parents then arranged for him to stay with an uncle (his mother’s brother) on a farm.  He left school accordingly. He accepted that the police did not come to his home in the two weeks that he remained with his parents before moving to his uncle’s farm. When staying with his uncle, he did not go to school, he says. Rather, he helped with childminding and household cooking. This allowed his uncle’s wife to devote time to other chores.

17. He said that he had only infrequent contact with his mother and father by telephone. His parents would ring him on his uncle’s phone once a month or once every two months, he said. His parents contacted him only infrequently because they were afraid, Mr [A] said. He said that the police did not come to his uncle’s farm.

18. Mr [A] gave evidence that a summons arrived for him in early January 2013 at his parent’s home. He was not told about the summons before he left for Australia in April 2013. He said his parents did not wish to worry him, but he now knows that the summons required his attendance at a police station in March 2013, some two months after the summons was delivered. Mr [A] said that at the end of March 2013, he was informed by his parents that arrangements had been made for him to leave for Australia. Mr [A] said that his father told him that they had arranged for him to leave Vietnam because the police had come to look for him. He agreed with his father’s decision. He did not see his father or mother before leaving for Australia, although he said he had a good relationship with his parents.

19. Mr [A] said that he left [in] 5 April 2013 on a boat journey that would last 20 days. He said his parents paid for the trip.  He travelled with a people smuggler. The total price for the trip was $10,000, split into two lots of $5,000. He was taken to Darwin after the boat was intercepted by the Australian Navy. He said that he has no memory of an initial interview. He was only [age] years of age at the time.

20. Mr [A] said he was assisted by the Immigration Department to attend school, and eventually he moved out into the community.  He entered the community at the end of 2014 or thereabouts, he said. In June 2017 Mr [A] was convicted of three counts of cultivating marijuana and was sentenced to a total of five years and ten months in jail.  He was released from prison on parole [in] May 2019 but was then confined in immigration detention in Western Australia. He applied for a protection visa in September 2019, and, as I have indicated, his application was rejected.

    My Findings of Fact about the events in Vietnam

21. In respect of my findings of fact, I have acted on the principle that Mr [A] should be given the benefit of any reasonable doubt. I have considerable doubt about Mr [A]’s attendance at a demonstration in [Town 1] in July 2012; but, applying this principle, I am prepared to accept that he did.

22. I do not accept the remainder of Mr [A]’s evidence, however.  I bear in mind that Mr [A] was a teenager at this time.  On his account, the police chose to arrest and detain a teenager in a cell for two days and then decided to release him. It is not clear to me why Mr [A] would have been released by the police if they had intended to deal with him further. On Mr [A]’s account, the police took the surprising step of serving a summons at his home in January of the following year, some six months after he had been released.  The summons, he said, required his attendance some two months later, namely in March 2013.

23. This is implausible in my view.  Mr [A] was not a ringleader or organiser of the protest: he was a mere teenager.  It makes little sense for the police to bother with a teenager some six months later given the very large numbers of people that were arrested that day on Mr [A]’s account.  Moreover, if the police were interested in Mr [A], they would simply have come to his home to pick him up. It makes little sense for the police to serve a summons requiring his attendance some two months later.

24. There are other aspects of the account which do not make sense and are in my opinion implausible. First, Mr [A] was not told by his parents that they had received the summons. The receipt of the summons could only have been a very serious event for them, signalling real danger for their son. No attempt was made, however, to move him from his uncle’s.  It is implausible to suppose that a person who is of interest to the police would not be warned by family of the danger which he or she was in.  On Mr [A]’s account, his parents were so concerned with his safety that they felt it was no longer appropriate for him to reside in the family home and arranged his move to a relative’s. Indeed, they even feared to have regular contact by phone lest he be tracked down through surveillance.  If the police had an interest in re-interviewing their son, Mr [A]’s parents must have been very concerned for his safety and would have warned him of the need for extreme caution.  That did not occur on Mr [A]’s account.  That this warning did not occur is implausible in my view.

25. I note further that Mr [A] said the police did not attend at his uncle’s farm even though they would presumably have come looking for him once he failed to present himself for interview in March 2013.  On his account they had attended his home in March 2013 looking for him.  It is reasonable to suppose the police would have attempted to track him down at his relatives’ homes.  That this did not occur also seems implausible.

26. All in all, and even allowing Mr [A] the benefit of every reasonable doubt, I do not believe the version of events given by Mr [A] in respect of his arrest and subsequent events.

    Mr [A]’s evidence about events in Australia

27. Mr [A] said he attended Viet Tan demonstrations in Australia. He said he is not a member of Viet Tan, but he did attend demonstrations in Perth and Melbourne and assisted the Viet Tan in Australia from time to time.  As I understood his evidence, he assisted by asking for donations at the conclusion of demonstrations or of meetings he may have attended. 

28. I note the delegate records that Mr [A] admitted in his interview that he attended the rallies in order to bolster his claim for a protection visa.  When I put this to Mr [A] in the course of the hearing, he denied that he had said this to the delegate. He said he attended the meetings in order to oppose the Vietnamese Government. 

29. I have listened to the recording of the interview, and I note the delegate asked explicitly “how” (but not “why”) Mr [A] came to approach the Viet Tan party.  To this question Mr [A] replied that he had been told by members of the Vietnamese community that it would benefit his visa application if he were a member of Viet Tan.  Given the question that was asked, Mr [A]’s answer does not admit that he approached the party in order to bolster his application; but it does indicate an awareness of community information that membership of the Viet Tan might help an application for a protection visa. 

    My findings of fact about events in Australia

30. I accept that Mr Tan attended Viet Tan demonstrations in the company of many others on the occasions that he said he had. I am prepared to accept that he has attended an unspecified number of private meetings.  I also find that Mr [A] has never been a member of the Viet Tan.

    CRITERIA FOR GRANT OF A PROTECTION VISA

31. The conditions for the grant of a protection visa are set out in the Act.

32. Section 36(1A)(b) requires Mr [A] to satisfy the criteria in either section 36(2)(a) or 36(2)(aa).   If Mr [A] does not satisfy the criteria in one of these sections, his application must fail.

    Application of section 36(2)(a) to the alleged events in [Town 1]

33. Section 36(2)(a) requires me to be satisfied that Australia owes protection obligations to Mr [A] as a “refugee”, a concept which is defined in s 5H. On the evidence before me, however, Mr [A] does not answer the description of a “refugee” as defined. As I have rejected Mr [A]’s account of events in Vietnam as implausible, I do not accept that he fears being persecuted on his return to Vietnam as a consequence of his participation in the protest at [Town 1].    

    
    
    Application of section 36(2)(aa) to the alleged events in [Town 1]

34. For the same reason, I do not believe that there are any substantial grounds for my concluding that as a necessary and foreseeable consequence of his removal from Australia there is a real risk that Mr [A] will suffer significant harm as a consequence of his participation in the protest at [Town 1]. I do not believe Mr [A] meets this criterion.

    Application of section 36(2)(a) and 36(2)(aa) in relation to Mr [A]’s faith

35. One further question that arises is whether I should accept a broader submission that the Vietnamese police or other Government authorities would harm Mr [A] on his return simply because of his Catholic beliefs.  I have already rejected Mr [A]’s submission of individual persecution. 

36. The most recent DFAT country information report does not suggest that there is widespread or systematic repression of Catholicism or those identifying as Catholics.  The DFAT Vietnam Report of 13 December 2019 summarises the situation as follows:

    “3.24 DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from authorities, although they may still face discrimination from local and provincial authorities. Adherents associated with independent religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.”

37. The Report does acknowledge individual instances where priests, for example, have been prevented from celebrating mass and attending homes for prayers.  That said, the Report’s overall conclusion appears in [3.24], quoted above.  I do not believe Mr [A] would face persecution in [A] were he to return there and practise his faith. 

    Application of section 36(2)(a) and 36(2)(aa) in relation to Mr [A] as a failed asylum seeker

38. I have also considered whether Mr [A] would face harm on his return as a failed asylum seeker.  The most recent DFAT Report suggests that Mr [A] would not face a real risk of significant harm as a failed asylum seeker were he to return to Vietnam. The position of failed asylum seekers on return to Vietnam is dealt with specifically at paragraph [5.24] to [5.35] of the Report in terms which do not suggest that there is any serious threat of persecution or harm.  I do not believe, therefore, that Mr [A]’s application should succeed on this ground.

    Application of section 36(2)(a) and 36(2)(aa) in relation to Mr [A]’s participation in Viet Tan activities

39. I must also consider Mr [A]’s application for a visa from the perspective of his association with the Viet Tan in Australia.

    (i)Application of section 36(2)(a)

40. So far as Mr [A]’s application depends on his being a “refugee”, I note that Mr [A] must satisfy me that his activities in Australia were undertaken otherwise than for the purpose to strengthening his claim to be a refugee: see s 5J(6) of the Act. This subsection does not allow me to give Mr [A] the benefit of any reasonable doubt: rather he must satisfy the Minister (and this Tribunal standing in the shoes of the Minister) that his activities were undertaken otherwise than for this purpose. Otherwise, the activities must be ignored.

41. Given my concerns about the reliability of Mr [A]’s evidence, and given the answer he gave to the delegate at interview (see [29] above), I am not satisfied that Mr [A] participated in Viet Tan activities otherwise than for the purpose of strengthening his claim to be a refugee.  I accept that he did not explicitly admit to the delegate that this was his purpose.  Mr [A] did admit in the interview, however, that he was aware of community information suggesting membership of the Viet Tan might strengthen a refugee claim. 

42. As Mr [A] has not satisfied me that he undertook his activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee, I must ignore the activities so far as his claim to be a refugee is concerned.   In any event, I would refer to my discussion below in respect of s 36(2)(aa).

    (ii)Application of section 36(2)(aa)

43. As I read the complementary protection provisions in s 36(2)(aa), however, it does not matter whether Mr [A] associated with the Viet Tan for the purpose of bolstering his claim to be a refugee. Section 5J(6) does not apply. Rather, the only question for me is whether I have “substantial grounds for believing that, as a necessary 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”.

1. I accept the Vietnamese Government is a very authoritarian and illiberal one-party state.  I accept that it maintains a very significant security apparatus through which it monitors the activities of the regime’s suspected opponents.  I accept that the apparatus has the capacity to monitor overseas activities. 

2. But in my opinion it would be unreasonable to assume, without supporting evidence, that the security apparatus could, or would, go to the extraordinary effort of obtaining, where possible, information about the identity of every person attending an overseas protest rally connected with the Viet Tan, even though the Viet Tan is a declared terrorist organisation.   I have no information to suggest that Mr [A]’s attendance at Viet Tan rallies or private meetings might have been monitored by the Vietnamese authorities or that his identity might have been discovered and recorded.   I note again Mr [A]’s evidence to me that he is not a member of the Viet Tan.

3. Accordingly, in my opinion, I do not have “substantial grounds” for “believing that there is a real risk” that Mr [A]’s attendance at the rallies or at private meetings has come to the attention of the security authorities in Vietnam. To conclude otherwise would be speculative and, as I have said, the Act specifies that I must “have substantial grounds” for “believing that there is a real risk” in this regard. I accept, however, that if the authorities knew of his attendance at Viet Tan rallies or meetings, Mr [A] would face a real risk of harm on his return.

   CONCLUSION AND FORMAL DECISION

4. Given these conclusions, I find that Mr [A]’s application for a protection visa does not meet the eligibility criteria prescribed in the Act.

5. The Tribunal affirms the decision under review.

   Dr N Manetta
   Senior Member