2009130 (Refugee)

[2022] AATA 1744

2009130 (Refugee) [2022] AATA 1744 (3 March 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2009130

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:  Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          3 March 2022 at 11:44 am (QLD time)

DATE OF WRITTEN RECORD:                31 May 2022

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 31 May 2022 at 11:30am

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – human rights activist – divorce settlement – loss of assets – evasion of military service – business registration – Communist Party membership – education – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 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 for review of a decision made by a delegate of the Minister for Home Affairs on 27 May 2020 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 3 March 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

1. This is a review of a decision of the Department of Home Affairs. The delegate refused the visa application on 27 May 2020. The visa application was made on 21 March 2019. The applicant claims to be a citizen of Vietnam and has provided passport evidence. I find that he is indeed a citizen of Vietnam.

1. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 of the Regulations. The applicant is either a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds. Where relevant the tribunal has taken into account policy guidelines prepared by the Department of Home Affairs and country information prepared by the Department of Foreign Affairs in accordance with the Ministerial Direction.

1. The applicant was invited to an in person hearing at the tribunal’s premises but requested a video hearing instead, which was agreed to. I decided it was reasonable to hold a hearing in this manner given the nature of the matter and the circumstances of the applicant. The tribunal has had regard to the objective of giving a review that is fair, just, economical and quick. I have also taken into account that there would be a delay if it were not heard by video. The hearing was conducted on Microsoft Teams with the assistance of a Vietnamese interpreter.

1. I note that where there is conflicting evidence questions of credit may have to be resolved. The tribunal is entitled to give greater weight to one piece of evidence over another. It can find that one version of the facts is more probable than another. In determining whether there is a real chance or a real risk finding that something is improbable in the past is relevant in deciding that it is improbable in the future. The tribunal can reject an applicant’s testimony because it is not credible.

1. The applicant received assistance when making his written claims to the department. He is not fluent in English and his niece assisted him. He does not have a migration agent. The department did not interview him. He had visited Australia, he said, a long time ago but subsequently entered Australia in 2012 on a visitor visa. He made an application for his protection visa in 2019.

1. He has some family in Vietnam and other family members in Australia. He was married previously in Vietnam and has [number] children. He has no contact with his immediate family in Vietnam. He said this was because he could not get through on old numbers. For the years between 2012 and 2019 he lived unlawfully in Australia. He was previously living in central Vietnam. He has a [grade level] education. His occupation was business owner of an [specified business].

1. I asked the applicant what prompted him to leave Vietnam and come to Australia. He said he wanted to see what this country is. He stayed on because he saw the people were very

friendly and the country was good for living. I asked him if he had been working in Australia to which he replied “No” and that his sister had been looking after him. If he had work rights he would have worked. He described his health as good.

1. The tribunal explained once again the nature of a protection visa and the general concept of being a refugee or needing complementary protection. I asked why he had sought protection in Australia and why he could not live in Vietnam. He said he had a divorce and had no access. He said when he came to Australia he had had a house and [specified business]. He said when his ex-wife commenced divorce proceedings he got no more access, including to his children. He communicated back home and discovered that she took everything. The house had been in joint names. Today he has no assets to his name.

1. I asked what other problems there were for him in Vietnam. He said that when he was around [age] he tried to get into university but around this time the Vietnamese Government wanted him to serve in the military. He did not want to go into the military. In the end he did not serve in the military. He did do a health check but in his own words he said he ran away. I asked about the consequences of this to which he said he was punished. It was in this way whenever he did paperwork they would call him a runaway.

1. I asked practically how that affected him considering that he had avoided military service. He said if he wanted to open a big company or something along those lines priority is given to those who had done military service. In such a case he said “They won’t sign for me”. I asked if he had tried to do this in the past. He said he had made such proposals but the authorities said he was a runaway, they will not sign approvals.

1. I asked what sort of business he was trying to set up. He said it was a [different specified business] but they did not want him to open it. He said this was a long time ago and he could not remember the year. He said there were no other consequences for evading military service.

1. I asked if there were any other problems that he would face if he returned to Vietnam. He said there were no other problems. He said he liked living in Australia. I turned the applicant’s attention to his written application to the department. Those claims are summarised in the decision record, which he forwarded.

1. The first claim noted is that he was not a member of the Communist Party, so he received unfair treatment in all social interactions. He claims there are no human rights. He recalled this being written down for him and agreed that he got unfair treatment. He said: “If you are not a member of the Community Party maybe that applies”. I asked him to give an example of how that applied to him. The applicant said that if he had a Bachelor’s degree he would have more opportunity. And he said a party member, for example, would get more priority in this area. I took this as a suggestion that it is easier for party members to obtain degrees and higher positions.

1. I asked what the applicant meant by writing “No human rights”. He said if he wanted to fight for human rights he would be prevented. I asked what action he had taken on human rights, if any. The applicant said that to tell the truth he was busy and did not have time to attend human rights activities. I asked if he had written down any comment to do with human rights issues. The applicant said that if people commented on human rights they would face threats. I asked if he had spoken to friends and family about human rights in Vietnam to which he said he had spoken to friends. This was particularly when he saw reports about arrests.

1. The applicant as asked whether he had been threatened by anybody. He spoke about how in his home town everybody needed to make a contribution or a tax to road building. He said his father had indeed made a contribution of this kind yet when the applicant applied to

work in the relevant company he was refused. This was on the grounds that he had not made a contribution.

1. The tribunal then discussed his written claim that he would face mistreatment, harassment, torture, threats and imprisonment. It also discussed his claims that he was forbidden to participate in online blogging because of his vocal support for human rights and freedom of speech. He said that when in Vietnam he did not dare to make such comments. He said he did not trust the Vietnam Government.

1. I discussed his written comments to the department that he tried to move to the south. I discussed his claim that he did not do so because he was scared about his parents’ safety. He wrote that they would be harassed and mistreated, so he stayed with his parents. However, in the hearing the applicant said “No” to the question as to whether he thought about moving to South Vietnam. When I discussed this contradiction he remarked that he had no access and he had nothing. When I pressed him about whether he was scared for his parents’ safety he said his father had passed away. He said his mum had gone to the south to live.

1. He said that the government in Vietnam is always right and if he did something wrong the government would say that his parents had educated him poorly. The tribunal concludes that he did not contemplate moving to the south. This is his evidence in the hearing and it is to be preferred.

1. The tribunal asked the applicant why he had waited seven years before putting in a visa application for protection. He said he was scared and the police might arrest him. He added that he had nothing. I asked the applicant why he would not put in an application right away if he was, in fact, scared of returning. He said that he did not know about refugee visas and had found out through his niece looking up online. He returned to his unhappy divorce settlement or result and that he had lost everything.

1. The tribunal discussed DFAT country information at 2.28, 3.49, 3.52, 3.56, 3.55, 3.53, 3.63 of the January 2022 Vietnam report[1]. In summary, that opposition parties are effectively illegal. That protests are severely limited. It is difficult to get a lawyer for activists and protestors. That there is severe freedom of speech limitations on sensitive topics and that there is only low-level tolerance for social media comment. And that activists are sometimes prevented from leaving their homes.

   [1] DFAT Country Information Report, 11 January 2022

1. In all of this context the tribunal put to the applicant that it was concerned that he was not a human rights activist by his own admission. The tribunal was puzzled as to what harm he would face. I asked what fear he had. He raised concerns about the COVID vaccines administered in Vietnam. He said that these vaccines were faulty or fake. He confirmed, however, that he had three vaccines in Australia.

1. The applicant continued that he had nothing in Vietnam. I pointed out that he might be able to begin again. He said it was difficult to earn income and he was somebody who had lost everything. He said that this was stressful for him. I discussed at 3.110 the compulsory military service in Vietnam. He said he may have a bad reputation because he ran away from service. He said that paperwork might not be signed for future activities and ventures.

1. The applicant’s niece [named] gave evidence. She agreed that her uncle has nothing back home for him, that Vietnam had different and lower living standards than Australia, and that there were fake and faulty vaccines administered for COVID in Vietnam. I discussed whether the applicant could start again. She said he had become accustomed to the way of life in Australia. She said that he had had difficulties meeting somebody. And the thrust of the evidence was that the applicant would struggle in Vietnam.

1. The tribunal has contemplated the party’s or the applicant’s evidence and the witnesses and I find that he is genuine in his fears about adjusting if he had to go back to Vietnam. He is a man in his [age range] who appears to have lost his marriage and his family. I accept that he is without assets or money and I accept that the standard of living in Vietnam would be lower for him. But I find that the applicant has not provided evidence to demonstrate that he faces harm as a human rights activist. He has a general distrust and dislike of the government in Vietnam.

1. I find that he has faced some lower-level discrimination in Vietnam. Like the majority of people in Vietnam he is not a Communist Party member. I find that as a draft evader there has been some notation on this when he tries to get official approvals. However, I note that the applicant has been able to live at a subsistence level in Vietnam in the past. He has not been punished or incarcerated for avoiding military service. He generally faces a lower standard of living but no more than that.

1. I have no reason to believe he is not able bodied. He said that his health was good. And I also find that he has not had a record in the past of being involved in human rights activities or political comment. He criticises the government from time to time in low-level discussions with people that he knows and his chance of encountering problems on this are remote.

1. I have no reason to believe that he could not commence work in Vietnam. I have no reason to believe that he would not receive some kind of family or friend’s support, if he were to return. And I cannot discern any other reason for him facing harm in Vietnam. I have discussed with him the concept of a well-founded fear of persecution and the general idea of being subject to hostility or ill treatment, particularly on the grounds of political belief or evading military service. Though I agree he faces some potential issues cumulatively they do not amount to persecution.

1. The tribunal also finds that his lack of urgency in applying for a protection visa is harmful to his argument. He is a grown man and an adult and was able to contemplate making attempts to live lawfully. He ultimately did receive family help in living lawfully in Australia, which is to be commended, but his delay in applying detracts from the level of fear he claims he experiences. There seemed to be little sense of urgency.

1. The reasons he gave of being scared of the police in Australia and being depressed about his divorce do not outweigh my concerns here. So I do not accept that if he returned to Vietnam he would face a chance of being harmed for the reasons he has given according to the test for the protection visa, that is to say, having a well-founded fear of persecution. The tribunal finds that he does not have a well-founded fear of persecution. There is no real chance that he will be seriously harmed for the reasons he has claimed.

1. In complementary protection I find that he does not suffer a real chance of significant harm. I do not believe that there are substantial grounds for believing that on being removed from Australia to Vietnam the applicant faces a real chance of significant harm.

1. For the reasons given the tribunal is not satisfied that the applicant is a person who Australia has protection obligations to. Under section 36(2)(a) he does not meet the refugee criterion, so I consider the alternative criteria. And I am not satisfied that Australia has protection obligations to him under section 36(2)(aa). There is no suggestion the applicant satisfies this criteria either because of being a member of the same family unit as a person who does satisfy the criteria. Accordingly, the applicant does not satisfy the criterion in section 36(2).

2. The tribunal makes the following decision.

DECISION

1. The Tribunal affirms the decision under review.

Justin Meyer Member