2009694 (Refugee)

[2022] AATA 1128

2009694 (Refugee) [2022] AATA 1128 (25 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009694

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:         25 February 2022 at 12:36 pm (VIC time)

DATE OF WRITTEN RECORD:                22 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 March 2022 at 3.56pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Buddhism – wants to stay in Australia for economic reasons – supporting Buddhist monks who have been oppressed by the government – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36
Migration Regulations 1994 (Cth), 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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 June 2020 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 25 February 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.

   STATEMENT OF DECISION AND REASONS

3. The time is now 11.43am and the tribunal provides this oral decision with reasons. The statement of decision and reasons. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Migration Regulations. The applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant, the tribunal has taken into account policy guidelines prepared by the Department of Home Affairs and any country information assessment prepared by the Department of Foreign Affairs and Trade.

   FINDINGS

4. In assessing the applicant’s case, the tribunal notes the mere fact that a person claims fear of persecution does not establish the genuineness of the fear.  It also does not show that the fear is well founded, or it is for the reason claimed.  A fear of persecution is not well founded if it is assumed or mere speculation.  The relevant facts of the case need to be supplied by the applicant himself.  In determining whether an applicant is entitled to protection, the tribunal must first make findings of fact.  I make the following findings.

5. The applicant claims to be a citizen of Vietnam and has provided a copy of his passport to the department.  The tribunal finds the applicant is a national of Vietnam and this is his receiving country for the purposes of complementary protection as well. 

6. There is no evidence to suggest the applicant has a right to enter and reside in any safe third country.  The applicant’s written claims in summary are as follows.  He is a Buddhist from Vietnam.  He left Vietnam in order to look for more opportunities to participate in the Buddhist Revolution.  He wants to raise the voice of Buddhist monks who have been oppressed by the Vietnamese government.  Although they can practise their religion, they are under strict government control and cannot move freely and they must report any fundraising.

7. The government is corrupt and takes funds for themselves.  He attends meetings or plans to attend meetings run by the Buddhist Association for Australia.  He cannot relocate in Vietnam because he used to live in a Buddhist temple supported by locals.  Upon return to Vietnam, he fears arrest, torture and indefinite imprisonment.  As a monk himself he knows that there is no safe protection or place to relocate.  The tribunal notes that this hearing was held by video via Teams.  It is a hearing by telephone via Teams.  The hearing was held during the COVID-19 pandemic. 

8. The tribunal determined it was reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant. 

9. The tribunal also had regard to the tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.  The applicant did not raise any concerns as to conducting the review by telephone and concerned their ability to do so.  The tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. 

10. The applicant’s evidence in the hearing was as follows.  He is [age] years old and came to Australia in August 2019.  He had been living with his parents, his father being a [occupation] and his mother in farming.  He is from central Vietnam, the nearest large location being Dong Hoi. He ended his schooling in [year] and then did manual work, living with his parents all along.  He was not interviewed by the department.  Someone who knew English helped him complete his visa application.  They told him what they had written for him after he consulted with them.  He did not pay these people or person a fee for doing this. 

11. Having explained the concepts of persecution and complementary protection, I asked the applicant why he had applied for this visa.  He said that Australia had good conditions, health care and social benefits.  His family in Vietnam had financial difficulties; here he had a job and an income.  I asked if the applicant had any other claim that he would state and he said that he realised that everything in Australia was good and the people were nice.  His parents are very old, and he has brothers and sisters.  He needed to find a job in Australia and send money home to them.  He also planned to find somebody to marry in Australia and stay permanently.

12. He had been sending money home, but it was a limited amount because of his limited income as a [occupation].  I asked the applicant if these were all of his concerns about possibly going back to Vietnam.  He replied that he had no concerns about going back to Vietnam. 

13. The tribunal then referred to the applicant’s written claims about being a Buddhist.  The tribunal took the applicant to his specific answers as to why he left that country.  He had written that he was looking for more opportunities to participate in the revolution of the Buddhist movement. 

14. He had written, “I want to raise the voice of Buddhist monks in Vietnam who have been oppressed by the Vietnamese government for many years”.  He replied in the hearing that this was correct. 

15. I asked him for the details and why he wanted to be involved in this.  He said that he was confused that the revolution will not happen.  He said that he was living in the temple for some time.  He said after 2012 he was working and living in the temple at the same time.  I then referred to the rest of his written answer where he said, “We must report any fundraising we received, and we must pay that to the local authorities”.  I note that he had written that, “Sadly, the tax money has gone to the individual of the local authorities”. 

16. I asked the applicant to further explain his concerns in the hearing and he said that it was not considered to be a tax, it was a contribution to the temple.  He said he was willing to make such a contribution. 

17. I asked if he had any concerns about contributions and what happened to them.  The applicant was asked whether there were concerns about those contributions and their misuse. 

18. The tribunal noted that the money went to local authorities and queried what the problem was, to which the applicant replied, “Not sure”.  From all of this, the tribunal has concluded that the applicant had no concerns about going back to Vietnam, other than the standard of living issue that he raised.  He could not recall, without prompting, his concerns about being a Buddhist in Vietnam. 

19. He struggled to explain about how he might be involved in a revolution to do with Buddhism, when effectively reversed his claim by saying the revolution would not happen.  When prompted on taxes being paid, he could not articulate his written claim.  When asked about what the issue would be to do with taxes going to the local authority, he was unsure and could not explain.  From such a firm written statement to uncertainty in the hearing, the tribunal concludes that he has no such concerns. 

20. I asked if he had ever been to a protest of any kind in Vietnam or Australia, to which he replied, “No”.  I asked if he was ever intending to do so, to which he replied, “No”.  I then asked if he was standing by his written claims that he intended to protest about how temple moneys are spent.  He replied, “Un-maintaining”.  The tribunal put that this was a contradiction that he had said that he would not attend protests when he wrote that he would.  The applicant replied that that was because he did not think the revolution would happen. 

21. This is a circular argument.  It cannot be the case that he intends to protest and does not intend to protest and that this is because he does not think the revolution will happen.  This is logically inconsistent, and I conclude that he has no intention or concern about protesting.  I asked the applicant about police torture.  He said that he did not want to go back.

22. I pointed out to the applicant that he had told the tribunal that he did not fear anything and only wanted to help himself. 

23. The applicant agreed that he had made this statement.  The applicant agreed that he had answered this way but did not like the Vietnam system and hated the authorities.  It cannot be that he fears police torture and also does not fear anything, and I find that the applicant does not fear anything.  This is because of his inconsistencies on this point.  I asked the applicant is he was a monk or had ever been a monk.  The applicant said that, yes, he thought that he was considered to be a monk.  I asked if he had ever made a commitment to being a monk.  The applicant said he did not commit to this, but he is a noble Buddhist. 

24. He said as a monk himself, he knew that he would not get any protection.  The tribunal noted to him that it sounded like he was a committed Buddhist, but not a monk, which he ultimately agreed with.  He practised his Buddhist faith in Australia and goes to temple often.  The tribunal finds from the applicant’s own admission that he is not and has never been a Buddhist monk.  The tribunal accepts, however, that the applicant is a practising Buddhist. 

25. He could not articulate how he had personally encountered problems or would encounter problems as a Buddhist in Vietnam.  He only gave a generalised account of how he thought there was some sort of clash between authorities and temples.  When asked to describe restrictions on Buddhism, he said he thought that there were some restrictions in relation to schooling, but he could not articulate how that applied to him.  He agreed that he was from Mahayana Buddhism and his identified ethnic group was Kinh, the majority ethnic group in Vietnam.  The tribunal can discern no other religious or ethnic factor which might lead to a fear on the part of the applicant.

26. The tribunal discussed the Vietnam DFAT report of January 2022.  At 2.6, ‘employment and welfare’, it was discussed with the applicant the official unemployment rate was 2.4 per cent, yet 76 per cent of all workers are in the informal sector where unemployment is high.  It was noted that COVID-19 made employment worse and affected unskilled, low-skilled workers.  The applicant agreed with this, but when it came to how it would apply to him, he said that he had no intention of going back and it was not relevant. 

27. At 2.7, the rapid urbanisation of Vietnam was discussed.  Multinational companies were looking for manufacturing expansion and this creates jobs for young people such as the applicant, it was suggested. 

28. The applicant said he would not benefit as he was not planning to go back. 

29. 2.8, Social welfare benefits, particularly for older people were discussed.  But the tribunal did not receive a relevant answer from the applicant on these matters.  It was pointed out that the applicant might need to return if he was unsuccessful in his case, but the applicant clearly did not want to contemplate returning.  I have no reason to believe from this country information that some economic opportunity exists in Vietnam for the applicant, and he could not identify the economy, employment or welfare as being a source of harm.

30. The tribunal also discussed religion at 3.21.  DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference, although there are some variations.  The applicant said that this applied to him because he is a Buddhist, but he did not agree that he can generally practise his faith, and this was for the reasons he had stated earlier. 

31. The tribunal directed his attention to 3.42: DFAT assesses that Buddhists who belong to registered organisations and are not politically active face a low risk of official discrimination.  Those engaged in independent sects or unregistered Buddhist organisations face a moderate risk of official discrimination, particularly if they also advocate for political change, including religious freedom.  The applicant agreed that he was not politically active and faced a low risk.  He agreed that he was in an approved, registered Buddhist group.  The tribunal found nothing in the country information and the applicant’s response that he faced a risk. 

32. The tribunal concludes from all of these responses that the applicant, although a Buddhist adherent, is not politically active.  He is in an approved, registered branch of Buddhism and he is not engaging in revolutionary activities and he faces low risk.  In all of these claims, the tribunal notes that the applicant seemed either unaware or had forgotten about his earlier written claims in the hearing, until he was prompted by the tribunal.  This was puzzling to the tribunal because if his fears were strong, normally an applicant would readily recall them.  I can only conclude that because of his inconsistencies and lack of recall that he has no such fears.

33. From the country information, I conclude that he does not have an objective fear or risk of any of the matters he has claimed.  His earlier free admission that he had no such fears and wanted to stay in Australia for economic betterment is the preferred reason that I find to be true.  Therefore, the tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.  He cannot explain how future harm would occur and there is only a remote or far-fetched chance that he would face harm for any of the reasons he has put forward.

34. I find there is only a remote or far-fetched chance that he will be harmed for any of the reasons he has claimed.  I also do not accept that he would be significantly harmed on the basis of things he has claimed.  It follows that I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk the applicant will suffer significant harm.  The tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).  Having concluded that the applicant does not meet the refugee criteria, the tribunal has considered the alternative complementary protection criteria.  The tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa). 

35. There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit.

36. Therefore, the applicant does not satisfy the criterion in section 36(2).  The tribunal affirms the decision not to grant the applicant a protection visa. The time is now 12.36 pm and the tribunal makes the following decision.

    DECISION

37. The Tribunal affirms the decision under review.

    Justin Meyer
    Member