2008406 (Refugee)

[2021] AATA 623

2008406 (Refugee) [2021] AATA 623 (18 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008406

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Anne Grant

DATE:18 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2021 at 9:51 am

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion, religion and criminal conviction in Australia – no harm while in home country – visa history including cancellations, reviews and appeals – social media activity, participation in demonstrations and financial support for jailed dissidents while in Australia – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

CASE

MIAC v SZQRB [2013] FCAFC 33

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 May 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 24 March 2020. The delegate refused to grant the visa on the basis that they found that the applicant was not a refugee, because there was not a real chance that on return to Vietnam the applicant would suffer persecution for his political opinion and claimed Christian faith or because he had been convicted of a criminal offence in Australia. In the alternative, the delegate found that there were not substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of him being returned to Vietnam. 

3. The applicant first arrived in Australia on a UC-457 dependent spouse visa in 2009.  Subsequently, his visa was cancelled under s.116  but that decision was later set aside by the Migration Review Tribunal.  On 3 November 2015 the applicant was granted a BS-801 Partner (Residence) visa.  On 13 February 2018 his visa was cancelled.  The applicant has sought review of that decision, and according to the information before the Tribunal, his applications have been unsuccessful to date, and the cancellation of his partner visa has not been revoked.   The applicant was released from a NSW correctional facility and transferred into immigration detention at [a] Detention Centre [in] May 2019, where he remains.   On 23 March 2020, the applicant made an application for a protection visa.  On 11 May 2020 a delegate of the Department made a decision to refuse his application.  He lodged an application to the AAT for review of the decision on 18 May 2020.

4. The hearing was conducted by video conference with [the] Detention Centre on 25 June 2020, 5 November 2020 and 7 January 2021.  The first hearing used the video facilities at the detention centre and the Tribunal.  The second and third hearings were conducted using the Microsoft Teams video platform.  The hearing was assisted on each occasion by an interpreter in the Vietnamese and English languages. 

5. On 25 June 2020 after the preliminaries in which the issues of this review were explained to the applicant, he requested that the hearing be rescheduled to enable him to make freedom of information requests of both the Department and the Tribunal.  The hearing did not proceed, to enable him to do so.

6. Once the Tribunal had established that the Department and Tribunal had provided the applicant with his file documents, the matter was relisted on 5 November 2020 for a three hour hearing. 

7. At that hearing, the applicant raised a number of administrative and procedural matters generally related to his belief that the hearing should be about the refusal of a bridging visa, and not about the review of the refusal of his protection visa.  The applicant was informed repeatedly that the review currently under consideration relates to the applicant’s protection claims only and is a review of a decision made on 11 May 2020 to refuse a protection visa.  Despite efforts to inform the applicant about the issues within the current Tribunal’s jurisdiction and to enquire of the applicant about his protection claims, the applicant repeatedly referred instead to his belief that the Tribunal is (in his opinion)  empowered and obligated to grant him a bridging visa; and other matters such as the means of communicating with him whilst in detention and the documents considered by the Tribunal (and whether the Tribunal had access to the same documents as he had been provided under FOI).  He also raised his belief that the Australian justice system had led to him being wrongly accused and convicted of crimes and that he was the victim of injustice at the hands of the NSW police and court system.  Further, the applicant claimed at one point that the Federal Court has already ruled on his protection visa and appeared confused about what migration matters were currently waiting for determination before the courts or Tribunal.   

8. The applicant also expressed a belief that the interview contained in the Departmental file (which it was noted had been marked ‘interview did not go ahead – iv preamble’ by the Department), was incomplete and that there was a fuller interview which the department was concealing.  It was noted that the delegate referred only in their decision to the written evidence provided by the applicant in support of his application for protection and to the applicant’s own written response to questions asked by the delegate subsequent to the ‘failed’ interview.  Nonetheless, the applicant claimed that the department was hiding the full content of the interview though it was not clear why they would do so.    

9. The Tribunal asked the applicant questions aimed at clarifying his protection claims at various points during the second hearing; but the applicant was reluctant to respond to those questions and did not provide any clear evidence about his protection claims at all.  He generally reverted back to his issue about bridging visas.  After it became clear that the Tribunal would not have sufficient time to take evidence about the applicant’s protection claims given the time taken with other matters, the hearing was adjourned.  The applicant was informed that the Tribunal would make some enquiry about outstanding Court and Tribunal matters and the claimed ‘missing’ interview; and would then schedule a resumed hearing where only the applicant’s protection claims and matters relevant and related to those claims would be considered, due to the Tribunal’s desire to hear and determine the applicant’s review in a timely manner.  

10. At the hearing on 5 November 2020, the Tribunal encouraged the applicant to seek legal advice in the interim, (by phone if possible) but it appeared from his responses that he did not intend to do so.

11. Subsequently, the Tribunal wrote to the Department raising the issue of any interview which had not been included in the Departmental file and also seeking clarification of the applicant’s outstanding court and Tribunal reviews and appeals (including any related to bridging visas), in the hope that the applicant could be informed of and understand the status of those matters.  The Tribunal listened to the interview recorded by the Department which was marked ‘did not go ahead’ on 17 April 2020.  Despite running for more than an hour, the interview clearly took no evidence from the applicant and discussed only preliminary, procedural matters and objections made by the applicant.  At its’ conclusion, the delegate informed the applicant that they would be sending him a list of questions to address.

12. On 3 December, the Department responded to the Tribunal’s enquiry and confirmed that there is no evidence of any second interview conducted in the applicant’s case and the only interview is that on 17 April 2020 marked as not proceeding.  The Department also advised that it had no record of any current bridging visa applications in progress or which the applicant had sought to review at the AAT, noting that two bridging visa applications applied for in 2019 were both deemed invalid and were not the subject of an application for review before the AAT.  The department noted that the applicant has a Federal Court case outstanding ([number] related to the cancellation of his partner visa).  On 17 December 2020, the Tribunal wrote to the applicant providing him with that information and reminding him that the Tribunal in this review is considering the refusal of a protection visa and no other migration or visa matters.

13. On 21 December 2020, the applicant was informed of the date for the resumed hearing on 7 January 2021.  On 4 January 2021, the applicant emailed to the Tribunal a copy of an application for a Bridging Visa with the covering email stating:  “I would like to send you my application for bridging visa as my appeal for the application of protection visa is now pending- judicial at AAT.”   On 5 January 2020, the applicant was advised that any application for a bridging visa was to be directed to the Department of Home Affairs.  On 6 January 2020, the applicant wrote again to the Tribunal, attaching a copy of a Departmental decision dated 5 January 2021 which deemed the application for a bridging visa lodged on 4 January 2021 to be invalid and noted that he did not have any review rights in regard that decision.  In his covering email, the applicant stated:

    “Please consider to review the refusal of bridging visa application on 07/01/2021.

    I hope that you will certify the application of bridging visa while awaiting for the juridical review of protection visa at your AAT- Protection.”

14. On 7 January 2020, the Tribunal conducted a resumed hearing of this application for review.  The applicant again raised matters unrelated to his protection claims and failed to answer any questions about those claims.  He demanded that he have his own friends participate in the hearing as translators by telephone.  He confirmed that his friends were not witnesses to his case but that still he wanted them to assist him with translating what was said.  The role of the professional interpreter was explained to him and his request refused.  The Tribunal observed that at times, [the applicant] appeared to be operating two different telephones during the hearing (despite attempts to ask him to turn them off) and at one stage suggested he had recorded a part of the hearing and then that he had deleted that recording. 

15. The applicant was reminded that the purpose of the current hearing was to enable him to give evidence and clarify his protection claims.  He responded that he had already given all that information at the previous hearing.  The applicant then said that he had mistakenly deleted the recording which the Tribunal had sent to him of the hearing on 5 November 2020 and demanded that a further copy be sent to him immediately (during the hearing) so he could refer to it, suggesting that he could somehow use it during the current hearing.  He then demanded a copy of the transcript of that hearing.   He was informed that the Tribunal would provide him another copy of the recording after the hearing but he would need to arrange transcripts himself, and that it was the member’s view that he gave no evidence about his protection claims during that hearing apart from a brief reference to the [item] he made.   The applicant claimed that the Tribunal member must have forgotten the evidence he gave at the hearing on 5 November 2020.

16. The applicant was informed that the hearing would proceed and he was asked general questions aimed at eliciting evidence from him about his claims to fear persecution in Vietnam.  He refused to answer those questions.  Consequently, the Tribunal member advised the applicant that the purpose of the hearing was for him to have an opportunity to give evidence and provide information about his protection claims but it appeared he was not prepared to do so.   The applicant’s response was to refer to the bridging visa application he had made a few days earlier.  He was informed that the bridging visa was not before the Tribunal and would not be considered. When it became clear that the applicant did not wish to provide any evidence or information about his protection claims, the hearing was terminated.   

    CRITERIA FOR A PROTECTION VISA

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

18. 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.

19. 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).

20. 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.

21. 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

22. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether the applicant is a refugee, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Vietnam, there is a real risk that he will suffer significant harm.

24. The applicant’s written claims in his application for protection were as follows:

    ·He left Vietnam and moved to Australia with wife and daughter as a migrant on a 457 visa.

    ·If he returns to Vietnam, he can be arrested and/or harassed by Vietnamese government as he is a member representative in Australia of [Organisation] and financially supports this organisation. He can be interrogated, tortured, killed, kidnapped.  His family in Vietnam can also be injured, harassed and oppressed.   He [made an item] and he supports and works with the [Organisation] campaign to overturn the Communist Dictatorship regime, organising demonstration for democracy and freedom of speech and press, and media which caused great fear to the communist regime.  He also attended a strike in front of [Location 1]. He is also supporting other human rights activists and has criticised the corrupted communist government.

    • He did not experience harm in Vietnam. However, his team of [Organisation] has four people who were arrested and jailed, sentenced for over a total of 20 years. Vietnam now has over 200 prisoners of conscience in Vietnam. They were encouraging and organising peaceful strikes at major cities in Vietnam for human rights and democracy, freedom of speech and religion, freedom of expression press and media free from censorship.

    ·He is innocent and a victim of a miscarriage of justice in Australia. 

    ·There is nowhere in Vietnam where he can be considered safe.

    • He believes he will be harmed or mistreated in Vietnam. He could be arrested and harassed if he goes back to Vietnam now, as Vietnam is well known for human rights violations. He is a human rights activist and has connections with other Vietnamese activists. His grandfather was also a victim of Vietnamese government and he was jailed for seven years for a vague reason like being a capitalist, and his property was confiscated, family members also found it harder to live and faced discrimination.
    • The authorities of Vietnam will not protect him. Vietnam is run by a dictatorship sole party (Communist Party), affiliated with the China Communist government. Nowhere in Vietnam has the authority to protect him.  He is vulnerable.

    ·He could not relocate within Vietnam to avoid the harm that he fears. 

25. In answer to several questions provided to the applicant by the delegate after the interview which did not ‘go ahead’, he provided additional information in relation to his claims on 28 April 2020.   In that response, he made the following claims (in summary): 

    ·He is Vietnamese.  His ex-wife and daughter are living in Australia.  His parents have each died (his mother in 2009 and his father in 2019.)  His brother died in 2002.

    ·His direct family was not involved in politics in Vietnam; however his grandfather was jailed for [Number] years and [his properties] were confiscated because of him doing business with the French, and because his family is Catholic. Being Catholic is still a disadvantage in Vietnam. His father worked for the [Government Ministry] and he used to discuss with the applicant his opinion about politics and some corruption issues of the Vietnam government. He always reminded the applicant to be careful and warned him when he got involved with political issues. He had very high concern about him sharing posts on [Social media 1].  He told the applicant his activities on [Social media 1] will be very risky for the applicant to return to Vietnam and limit his father’s chances of visiting the applicant in Australia. He apparently did not know that the applicant had financially supported the [Organisation] movement and various dissident and human right activists and family of conscience prisoners.

    • The applicant started his [Social media 1] account in 2011 and started to share video clips and live stream on [Social media 1] and [Social media 2] channels regarding political issues in 2012.  In 2015 his activity on social media was stopped when he was arrested and then jailed from February 2018 to May 2019.  He is a victim of a miscarriage of justice and malicious prosecution. He opened a new [Social media 1] account and started again in the end of May 2019 because he realised his [Social media 1] was hacked and he need to get an official investigation into his case.  He refers to the content of his social media posts as addressing various political and environmental issues affecting both Vietnam and China.  He also shared articles about the corrupted legal system in Vietnam and provided money to some innocent prisoners who were sentenced to death. He used an application [to] share at the same time to different social media apps such as [Social media 1], [Social media 3], [Social media 4], [Social media 5], [Social media 6] and [Social media 7].
    • The applicant claimed he was a representative of [Organisation] movement held by leader [Mr A].  He claims that his main [Social media 1] page ‘[Account name 1]’ was hacked and he is unable to see the conversations. However he has provided a financial summary of transfers and in it can be seen amounts of money sent to [Mr B] (arrested and in jail now), [Mr C], [Mr D] – ex prisoner of conscience, and [Mr E].  He claims that this report does not show all the money he sent to support them and other prominent dissidents and protesters.
    • [Organisation] was organising a mass strike to strive for freedom and reform and overturn the Communist regime so that the applicant also [made an item]. The principal of the [item] was based on [detail deleted].   Four members of [Organisation] were arrested and jailed.  The remaining members are now just able to act in moderation.
    • In Australia before he was arrested, he attended as an observer at the demonstration of the Vietnam freedom community held in front of [Location 2] in [City]. He and [Social media 1 account holder] [Mr F] also held a brief demonstration in front of [Location 1] as well [in] August 2017.  He has lost quite a lot of photos however he referred to the photos and letter attached.  He also attended various other events held by Viet Tan.
    • If you search on [Social media 1], [Social media 3], [Social media 4] under his name [the applicant], you will find about five different [accounts] because his account was maliciously reported due to the political content so that he has to make over 10 [Social media 1] and [Social media 3] [Social media 4] accounts.   He claims on his [Social media 1] that he has reached maximum 5000 friends.  He also has a WordPress site such as [Site 1] and [Site 2], and referred to [Social media 5], [Social media 6] and [Social media 8].   He said his [Social media 1] has a variety of livestream and video and connection to most prominent Vietnamese [Social media 1] and dissidents in Vietnam, USA, Australia, France.
    • He claimed his family can be harmed as his stepmother and brother are still in Vietnam.  His stepbrother named [Mr G] contacted him and informed him and warned him in fear of being questioned, interviewed by some plainclothes police and they asked him about the applicant’s information. A [Social media 1 account holder] named [Mr H] had to suffer that his mother and his wife were badly assaulted by their neighbour who is a member of the Communist Party. The well-known blogger [Mr I] in [Country] also experienced harassment to his [Age]-year-old mother in Vietnam. 
    • Vietnam and China Communist governments are interested in any voice of opposition especially in social media. The applicant claims his activities are considered a significant threat to the regime.
    • Vietnam considers any criticism or opposition to the government or Communist Party to be a national security matter. There are over 230 dissidents and prisoners of conscience in Vietnam. If he returns, he will be arrested, interrogated, stalked, harassed, tortured and sentenced. Especially he is a Christian so there is a tendency to punishment and long sentence. He gives an example of [Occupation] [Mr J] – where the Vietnam court upheld an 11 year sentence for [Occupation] who posted online criticism.

1. At the hearing on 5 November 2020, the applicant was asked about and confirmed that he had created [an item] and briefly explained [detail deleted]. He otherwise did not give evidence supporting his written claims.   

2. The applicant fears harm from the Vietnam government or from its’ police and military authorities in the form of being arrested, tortured, prosecuted, detained and imprisoned for his political opinion and for protesting and activism he has undertaken whilst outside the country.  He also claims he will be persecuted (arrested and detained) due to his Christian faith and due to his membership of the particular social group of persons convicted of serious criminal offences outside Vietnam.   The persecution he fears is for his political opinion, his religion and/or his membership of particular social groups (anti government social media activists or persons who have been charged with committing serious crimes overseas) which are all reasons described in s.5J(1)(a).  The persecution he fears also involves serious harm (lengthy detention, torture, physical assault and jail without proper process) as required by s.5J(4)(b) and systematic and discriminatory conduct as required by s.5J(4)(c).

3. The Tribunal proceeded to consider whether there is a real chance that the applicant will be persecuted in Vietnam, now or in the reasonably foreseeable future.   

   Persecution on the basis of political opinion

4. The country information generally reflects that political activists in Vietnam including bloggers, members of opposition organisations, persons who criticise or organise against the government using social media or traditional media as well as people who conduct protests or openly express opinions opposing the Vietnamese government may face harassment, arrest and prosecution for offences against national security.  In its’ most recent report on Vietnam[1], Department of Foreign Affairs and Trade (DFAT) discusses political opponents or activists in Vietnam at length.  That report includes the following:

   3.56 DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation, and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence…

   3.68 DFAT assesses that journalists, bloggers and other media workers in Vietnam who report on sensitive issues or are critical of the government face a moderate risk of harassment. Prosecutions take place under vaguely worded provisions in the national security section of the Penal Code, which can result in unfair trials and/or long prison sentences on charges that would not considered offences at law in many states. DFAT further assesses that media workers generally face a low risk of physical violence as a result of their reporting.

   [1] Department of Foreign Affairs and Trade Country Information Report – Vietnam 13 December 2019

5. The applicant claims that he began his activism on social media in Australia in 2011 on [Social media 1].  He claims that he started to share video clips about and live stream political activism videos in Australia in 2012, and ‘a lot more in 2015’.  No documents have been provided which demonstrate this activity, allegedly because the applicant claims that particular account was hacked or shut down due to political content.   Without the opportunity to discuss the applicant’s social media history in more detail with the applicant, the Tribunal considers that it is unable to make any reliable finding about the nature of that history, whether the applicant has engaged in social media activism as he claims or whether (if he did)  his past social media activity would have drawn or would be likely to draw him to the attention of the Government of Vietnam as an ‘anti government’ activist.

6. The applicant’s current [Social media 1] accounts ([Account name 2] and [Account name 3]) reflect that he has shared prayer, music, aid requests for disasters or human rights abuses around the world (including for example a request for financial aid to displaced persons in Tigray and a request for financial aid for persons needing urgent medical treatment) and also contains shared links to news videos which appear to be in Vietnamese and related to Vietnam.   His [Site 1] Wordpress blog contains posts consisting of links to [Social media 2] videos, mostly in Vietnamese and includes reference to music videos and news stories.  Most links are in Vietnamese and the Tribunal has not had the opportunity to clarify and discuss the nature of that content with the applicant.  The Tribunal does not have the capacity to search the other mediums referred to by the applicant ([Social media 5], [Social media 6] and [Social media 8]) and did not have the opportunity to discuss them with the applicant.  The latest post on his [Site 1] blog was dated September 2017.

7. Without the opportunity to discuss the content of his social media posts and links to videos with the applicant, or to fully examine his ‘activism’ in detail, the Tribunal considers that it has insufficient evidence before it  to establish and does not accept the applicants’ claims that he has engaged in and currently engages in activism which would draw him to (or has drawn him to the attention of) the government of Vietnam.  Further, the Tribunal does not have sufficient or any evidence from the applicant which establishes that he would continue to or would commence to engage in political activism via social media or political movements in Vietnam if he returned there.

8. As noted in his written claims summarised above, the applicant has provided a list of claimed money transfers to persons in Vietnam using [Money Transfer], some of whom the applicant claims to be activists.  Some of those in the list appear to be men who have the name of well known activists who have been imprisoned in Vietnam and have been associated with organisations opposed to the communist government of Vietnam.  Allowing for the transposition of names, the list of transfers appears to include transfers to some persons who can be identified as activists in Vietnam.  The ones the applicant named in his written statement are listed below.  The Tribunal would have discussed these persons, their political activities and the applicant’s relationship with them at hearing but as noted above, the applicant has by his conduct refused to answer questions about his protection claims.  Those persons are:

   ·    [Mr B] (AUD$[Amount 1] in December 2016).  [Mr B] is reported by The 88 Project (For Free Speech in Vietnam) to have been active in areas of Democracy, human rights, labor rights and sovereignty and to be affiliated with the National Movement to Revive Vietnam. He was reportedly arrested [in] March 2017 and sentenced to 6 years and 6 months in prison.  He was reportedly engaging in a hunger strike in September 2019 in protest of the treatment of political prisoners.[2]

   ·    [Mr D], $USD[Amount 2] [December] 2016, AUD$[Amount 3] on [in] December 2017 and VND[Amount 4] (approximately AUD$[Amount 5]) [in] December 2019.  [Mr D] is reported to have been arrested in 2010 on charges of attempting to overthrow the government for supporting the formation of an opposition party.[3]  Information could not be located on his release or otherwise from custody.

   ·    [Mr C] ($USD [Amount 6] [in] January 2017, AUD$[Amount 7] [in] November 2017 and again [in] December 2017, VND [Amount 8] [in] September 2019, AUD$[Amount 9] [in] September 2019, VND transfers of [Amount 9] on [Date 1] December 2019, [Amount 10] on [Date 2] December 2019 and [Amount 11] [in] January 2020.)  No information about [Mr C]’s activism, arrest or detention was located and the Tribunal did not have the opportunity to discuss those matters with the applicant.

   ·    [Mr E] (VND[Amount 12] [in] September 2019.)  [Mr E] is reported to have been taken to Hanoi Police for questioning by ‘secret police’ on or about [August], 2017. (Tweet located by general internet search includes a photograph of a man standing in front of a banner with [Organisation] on it.)[4]  Another report describes him as a person who had posted often on [Social media 1] about land disputes in [Location].[5]  No information about his current status could be located – however the [Newspaper] article referring to [Social media 1] censorship in Vietnam from 2017 to the current time appears to have been posted [in] October 2020 and in that article, [Mr E] discussed internet censorship directly with the authors and describes his account as being blocked ‘for the third time this year’.  He is not described as being in custody.

   [2] [Reference deleted]

   [3] [Reference deleted]

   [4] [Reference deleted]C:\doc-conversion\inputToHtml\r

   [5] [Reference deleted]

9. The financial transfers suggest on their face that the applicant has provided financial support to some known activists in Vietnam.  However, the document and its’ content raise various concerns for the Tribunal which it has not had an opportunity to discuss with the applicant.  For example, the Tribunal would have questioned the applicant on the source of the money in the list, the reason for the transfers, the history of the applicant’s relationship with the transferees, how the transfers were arranged or solicited and the activism which the recipients were undertaking.  Further, it appears that not all of the activists have been imprisoned or subjected to human rights abuses as claimed and the Tribunal would have clarified their status with the applicant.   If for example, [Mr E] is still posting anti government comments and openly discussing them with foreign media, the Tribunal would have clarified what level of harassment or oppression he is facing from the Vietnamese government and questioned whether the risk of harm claimed by the applicant was as serious as he states. Without the opportunity to discuss the [Money transfer] document and the recipients, the Tribunal does not consider that any weight can be placed on the document itself as reliable evidence of financial support given by the applicant to opponents of the Vietnamese Government.  

10. The applicant claims that his father, who passed away in 2019, was not aware of his involvement with the [Organisation] or the extent of his social media activism.  The applicant claims that his ongoing social media activism and transfer of funds to activists would mean that he would have come to the attention of and be of interest to the Vietnamese Government.  The Tribunal considers that the lack of any information or evidence that his father was ever questioned or harassed by the Vietnamese Government casts doubt on the applicant’s claim to have a profile of interest to the Government of Vietnam.  Whilst the applicant claims that his step-brother was questioned by the police about the applicant, his written statement does not give details about when that occurred, whether it occurred once or more than once, what allegations were made, the topic of the questions asked or whether his step brother or remaining family has been otherwise targeted by the Vietnamese authorities in the period since then. Given the limited information provided by the applicant about his step-brother’s questioning, (and the Tribunal’s inability to discuss those matters with the applicant) the Tribunal does not accept the applicant’s claim that his step brother was questioned about the applicant by government authorities.

11. The applicant also claims that he attended protests in Australia against the Vietnamese and Chinese Government.  The Tribunal acknowledges that protests in Australia against the Vietnamese government do occur.   The applicant has provided some photographs (one of which appears to include a woman holding the [item] made by the applicant) which suggest that he was present at some protests whilst in Australia.   The Tribunal does not have any oral evidence about the timing or level of his involvement in any such protests, apart from his written statement which suggests that a protest against China occurred [in] August 2017 and of which he has provided some photographs.  The photographs suggest that any protests were of very few numbers of people, and the applicant has provided no evidence that they attracted public or media attention.  The Tribunal did not have the opportunity to discuss this or his claim that his involvement in such protests would be known to the Vietnamese government with the applicant.  The Tribunal accepts and proceeded on the basis that the applicant has attended a small number of protests in Australia, targeting claimed human rights abuses in Vietnam and in China prior to his incarceration.  It does not accept that the information and evidence before the Tribunal establishes that his involvement in such protests means that he has a profile or would have a profile as an anti- Vietnamese government activist in Vietnam.

12. The applicant’s claims are that he has engaged in activism in Australia but not in Vietnam.  The Tribunal accepts that the applicant has not engaged in political activism in Vietnam at any stage.  He returned to Vietnam from June 2010 to July 2011.   The Tribunal has no information or evidence about his activities in Vietnam at that time and makes no findings in relation to that period, given that it did not have an opportunity to discuss that period with the applicant.

13. After considering the written claims of the applicant, the Tribunal accepts that the applicant appears to hold political opinions opposed to the Vietnamese Government and sympathetic to activists there.  However, bearing in mind his failure to provide oral evidence about the various aspects of his written claims such as his relationship with [Organisation] and his claimed involvement in their cause, the details of the claimed questioning of his step brother, and more detail about his claimed history of social activism (including evidence about his involvement with [Organisation], his role, his relationship with other members and the content of his social media posts, the activists to whom he claims to have sent money and their current situation), the Tribunal is not satisfied that the applicant has established that he is a social media activist who has any profile in Vietnam as an opponent of the Vietnamese Government, or that he would have such a profile in the future.  Consequently, the Tribunal does not accept the applicant’s claim that there is a real chance that he will suffer serious harm due to his political opinion now or in the reasonably foreseeable future if he returns to Vietnam.

    Persecution for his Catholic or Christian Faith

14. The applicant claims that as a Christian, he will be targeted in Vietnam.  He refers to his grandfather who had his businesses seized by the government and claims that “being a catholic is still a disadvantage in Vietnam”.  He does not suggest in his written claims that he himself has ever been targeted on the basis of his faith.  Nor has he explained why he has submitted multiple character references from evangelist faith members with his claims if he is a practicing Catholic and continues to rely on that claim.  The Tribunal proceeded to consider this aspect of the applicant’s claims on the basis that he fears persecution either due to his Catholic heritage and faith or because of his Christian (evangelical) faith. 

15. DFAT’s most recent information report includes the following information about religious issues in Vietnam. 

    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…

    3.37 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.

16. The Tribunal notes the country information, and also notes the information before the Tribunal in the applicant’s written claims that, after reporting his grandfather’s trouble with the authorities, (which the applicant associated with his faith as well as his having done business with the French), his own father held a position with the [Government Department].  This suggests that his father’s capacity to hold government office was not impaired by his faith.  The limited information before the Tribunal does not suggest that the applicant or members of his immediate family (his parents and siblings) have experienced persecution of any kind for reasons of faith.  The information before the Tribunal is limited and, even taking into account and accepting for the purposes of this discussion the applicant’s general statement that ‘being a catholic is still a disadvantage in Vietnam’, the Tribunal finds that the information and evidence before it does not establish nor suggest that the applicant would face a real chance of persecution on account of his faith, now or in the foreseeable future.

17. The Tribunal has considered the country information and the limited evidence about how or why there would be any chance that the applicant would face persecution in Vietnam on account of his faith.  The Tribunal is not satisfied that the applicant faces a real chance of persecution because of his Catholic faith (or due to his being a Christian) now or in the reasonably foreseeable future if he returns to Vietnam.  This claim is not established.

    Persecution due to his having been convicted of a criminal offence in Australia

18. The applicant in his written information claims that his conviction in Australia for an offence involving violence would be of interest to the Vietnamese Government.  The country information reflects that Vietnam does not prosecute citizens for crimes committed overseas where the person has served the punishment prior to returning to Vietnam.[6]  The applicant has served the term of imprisonment in full.   The applicant has not provided any supporting evidence which establishes how or why his conviction in Australia would lead to him facing persecution (such as re-trial, imprisonment or arrest) in Vietnam on his return.  The Tribunal prefers and accepts the country information on this point.  This claim is not established and the Tribunal is not satisfied that the applicant faces a real chance of persecution in Vietnam because of his conviction for a criminal offence in Australia, now or in the reasonably foreseeable future.  

    [6] DFAT Country Information Report, Vietnam at paragraph 4.10 :  4.10 The principle of double jeopardy is regulated in the Constitution, Penal Code and Criminal Code (2015). It is also referenced in the Law on Mutual Assistance (2008). According to the Ministry of Justice, the principle of double jeopardy applies in Vietnam: persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subjected to further trial in Vietnam for the same crimes. Article 6 of the Penal Code provides that people, who have committed offences overseas, where the sentence has not been served, may be ‘examined for penal liability in Vietnam’.

    Other matters

1. The applicant did not raise any other claims before the Tribunal.   The Tribunal considers that the applicant exhibited some fixated thinking and made some statements expressing paranoia during each of the hearings on 4 November 2020 and 7 January 2021. The applicant has not claimed that he suffers from a mental illness which might impact on his claims. Even taking into account any concerns about some of his conduct, the Tribunal considered that the applicant understood the nature of the questions asked of him, and his responses and demands reflect that he was able to participate meaningfully in the hearing but chose not to, rather than him being impaired in his capacity to participate in the hearing.  There is on the departmental file[7] a psychological assessment by Clinical and Forensic Psychologist [Mr L].  This report is dated 12 June 2018.  [Mr L] notes that the applicant reported that he was ‘diagnosed with some mental illness in the past and was on Zoloft for some period of time.’  According to [Mr L], there was no evidence of psychotic symptoms or thought disorders at the time of assessment.  The psychologist concluded that ‘Based on his self-reported information, I could not detect any indication of diagnosable mental illness.’   The Tribunal does not have any information about how that report came to be made and for what purpose, and would have welcomed the opportunity to discuss any current concerns or treatments the applicant may have related to his mental health.  However, bearing in mind that psychological report, and without any evidence from a clinician  or the applicant about his current mental health, the Tribunal finds that the information and evidence before it does not establish or suggest that the applicant suffers from a mental health condition requiring treatment, nor does it suggest that any necessary treatment would or might not be available in Vietnam.  The Tribunal does not consider that the information and evidence before it suggests or establishes that the applicant’s capacity to participate in the hearing was impaired or that his claims would be impacted in any way by the effects or symptoms of a mental illness.     

   [7] At folio 91

2. The Tribunal finds that the applicant has not established any of his claims and no other claims are established on the facts before it.  The Tribunal finds that there is not a real chance that the applicant will face persecution in Vietnam if he returns for reasons of his political opinion, his faith or his criminal history in Australia.  Even considering those claims cumulatively, the Tribunal finds that there is not a real chance that the applicant would be persecuted if he were to return to Vietnam, now or in the reasonably foreseeable future.  The applicant is not a refugee as described in s.5H.

3. For the reasons given above, 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

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

5. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

6. The applicant claims that he will face being arrested, tortured, prosecuted and imprisoned without a fair trial due to his social media activism and support for opponents of the Vietnamese government.  He claims he will be harassed and discriminated against due to his faith and also that he will be ‘targeted’ due to his conviction in Australia.  For the purposes of this review, it is accepted that arrest, torture and detention for indefinite or lengthy jail terms, without access to a fair trial and proper representation, would satisfy the definition of ‘significant harm’ in s.36(2A) of the Act.  However, the Tribunal has not accepted that any of the applicant’s claims have been established.  In considering his claims against the refugee criteria, the Tribunal has found that there is not a real chance that he will face serious harm if he returns to Vietnam due to his political opinions, his faith or because he has been convicted of a crime in Australia. The Tribunal has found that no other claims are established on the information and evidence before it.

7. Bearing in mind that the real risk test is the same as the real chance test, the Tribunal refers to and relies on its’ findings and reasoning in relation to the applicant’s claims under the refugee provisions.  For those same reasons, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed to Vietnam.  Additionally, as discussed above and taking into account the concerns noted by the Tribunal about the applicant’s mental health, the Tribunal finds that the information and evidence before it does not establish that the applicant suffers from a mental health condition which might require treatment, or that any necessary treatment may be refused or unavailable to him in Vietnam or that he suffers from a mental health condition which might impact on the real risk of him suffering significant harm if he is returned to Vietnam.

8. The Tribunal concludes that there are not substantial grounds for believing that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being returned to Vietnam.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Anne Grant
    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.

    …