2010628 (Refugee)

2010628 (Refugee) [2022] AATA 555 (12 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2010628

COUNTRY OF REFERENCE: Vietnam
MEMBER:Paul Windsor
DATE:12 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2022 at 3:40 pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – non-appearance before the Tribunal – political opinion – pro-democracy supporter – opposition to the Communist government – Viet Tan Party – religion – Catholic – corruption – land dispute – employment – detention – economic hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 426A, 441A, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 3 September 2019.
In his protection visa application the applicant indicated he was born on [date] in Vinh City, Nghe An province, Vietnam. He stated he is ethnic Kinh and is a Catholic. He indicated he has never married. He stated he departed Vietnam legally [in] July 2019 and arrived in Australia [the following day], entering on a visitor visa.[1]
[1] See the Departmental file.
In his application, the applicant indicated that he is fearful that if he returns to Vietnam he will suffer harm because of his political views and actions supporting democracy, freedom of speech and human rights, which he believes will not be tolerated by the communist authorities in Vietnam.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, finding that, after considering all the information before her both individually and cumulatively, she was unable to be satisfied that the there is a real chance that the applicant would suffer persecution due to his claimed Catholic faith and claimed anti-government political opinion. In relation to the complementary protection criterion, the delegate also was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk he will suffer significant harm as defined in s36(2)(aa) of the Act.
The applicant applied to the Tribunal for review of this decision on 25 June 2020. He provided the Tribunal with a copy of the delegate’s decision record.[3]
Failure to participate in the scheduled hearing
[3] See the Tribunal file.
On 15 October 2021 the Tribunal wrote to the applicant by email advising that, due to the COVID-19 pandemic, the Tribunal is not currently holding face to face (or in-person) hearings in Melbourne or Sydney and, consequently, is proposing to schedule a hearing for him to attend by video using Microsoft Teams. He was asked to advise within 7 days if he did not have appropriate technology or there are other barriers which would prevent him from participating in a hearing via Microsoft Teams. The applicant was advised that if he did not respond to the email, the Tribunal will assume that he does not have any issues with participating in a hearing scheduled in this manner. No response was received from the applicant.
On 23 December 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 9:00 am on 12 January 2022. As the Tribunal was again conducting in-person hearings at this time, this hearing was to be conducted at the Tribunal’s premises in Melbourne. The Tribunal sought to contact the applicant by telephone on the same day to explain COVIC-safe requirements for attending the Tribunal’s premises in Melbourne, but the call went to voicemail. The Tribunal left the applicant a message requesting that he call the Tribunal but he did not return the call.
The applicant was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter. The letter advised the applicant that if he was not able to appear as scheduled, for instance, because he is not available on the scheduled day or believes he would experience difficulty participating in the hearing as arranged, he should advise the Tribunal as soon as possible. The applicant was advised to note that the Tribunal will only make changes to the hearing if satisfied that it is reasonable and there are good reasons for doing so. He was also advised that if the Tribunal did not advise him otherwise, he must assume that the hearing will go ahead as scheduled. The applicant was further advised that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal. The applicant did not respond to the hearing invitation.
On 6 January 2022, the Tribunal wrote to the applicant advising him that, given the escalation in COVID-19 case numbers, the hearing scheduled for 12 January 2022 will now be held via Microsoft Teams video conference. The applicant was provided with details for joining the video conference on his computer or mobile app, or with a video conferencing device, or by phoning in (to join the conference with audio only). He was provided with details regarding how to download the Microsoft teams app for free onto his computer or phone and invited to attend a test dial scheduled for 11:30 am on 10 January 2022.
The applicant did not join the test dial on 10 January 2022. Three attempts were made to contact him by telephone (at 11:31 am, 11:36 am and 11:41 am) but all went straight to an unnamed voicemail.
The applicant was sent SMS reminder messages regarding the hearing on 5 and 11 January 2022. At the time of decision, a ‘delivery failed’ message had been received in relation to the SMS reminder message sent on 5 January 2022.
The applicant did not join the Microsoft Teams video-conference at 9:00 am on 12 January 2022 to participate in the scheduled hearing. Three attempts were made to contact the applicant by telephone (at 8:46 am, 8:52 am and 9:00 am) but these were unsuccessful.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing, to their nominated email address, in accordance with s.441A(5) of the Act. The invitation did not return an ‘email undeliverable’ message. Attempts were also made to send SMS reminder messages about the hearing to the mobile phone number provided by the review applicant. The applicant did not respond to the hearing invitations. Although he contacted the Tribunal by email using his nominated email address on 2 November 2021 seeking a Medicare letter, he did not contact the Tribunal to advise the proposed hearing arrangements were unsuitable or to explain why he did not participate in the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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).
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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims from his protection visa application are summarised as follows:[4]
[4] See the Departmental file.
·Since he was a student the corrupt local officials made him realise that Vietnam is a country run and controlled by a communist regime where the people do not have any democratic or human rights.
·People who oppose the government’s policies are arrested. On many occasions he and his friends who raised their voices for freedom of speech and human rights were taken by the authorities to the station for questioning. If they continued their actions they would be jailed. He was banned from the top class school. His family were threatened and fined. His parents were scared and their mental health suffered as a consequence.
·He decided to travel abroad firstly to travel around to learn about democracy and human rights in a Western country such as Australia so he could tell friends and others back in Vietnam, so they can fight peacefully.
·In Vietnam, the local people take the opportunity to engage in financial ‘distortion’ (sic) because they cannot survive on the monthly salary and due to corruption at many levels from local up to the federal. His family’s private retail business had been affected heavily by this, suffering heavy financial distortion from corrupt officials.
·His family also had a major dispute regarding family land, which the local government tried to obtain cheap by force under communist laws.
·Since his parents died he joined the church as a priest. The Communist authorities even had an eye on the church and controlled it indirectly.
·Because of his love of democracy and human rights he supports the Vietnamese opposition party, ‘The Viet Tan Party’ here in Sydney.
·He fears he will be arrested on political grounds if he returned, to stop the spread of ideas about democracy and human rights from overseas countries. The communist authorities do not tolerate any opposing political views. On many occasions he has raised opinions on [social media] regarding democracy, human rights and freedom of speech. The Vietnamese authorities strictly monitor and control [social media] and this could result in 4-5 years in jail on the grounds of promoting anti-state propaganda and causing instability in the country. His family could then become a target of threats and fines by local officials, further scaring his parents and increasing their mental health issues.
·As he would be seen as opposing the regime he would not have any work rights and it would not be easy for him to move around town or to other places. It would be difficult for him to find accommodation and support himself financially.
Findings and reasons
Identity
On the basis of the copy of his Vietnamese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of Vietnam and that his identity is as claimed. The Tribunal accepts that Vietnam is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The applicant’s claims for protection are vague, lack detail and are unsupported by any corroborating evidence. For the reasons set out below, the Tribunal is not satisfied that the applicant was or is politically active or ever posted material critical of the policies of the Communist Party of Vietnam (CVP) on [social media]; that he was ever detained by the Vietnamese authorities; that he was ever a priest in Vietnam; that he has ever been involved with the Viet Tan party in Australia or elsewhere; or that his family was involved in a land dispute with local authorities.
In relation to his claimed political activities, the applicant stated that people who oppose the policies of the CPV government are arrested. He claimed, however, that he and his friends were detained and questioned by the authorities on many occasions because they raised their voices for freedom of speech and human rights, but despite his comments that if they continued their actions they would be jailed, he has not indicated he was ever charged with any offence or jailed, despite indicating they protested on many occasions. The applicant also has not provided any supporting documents such as copies of corroborating statements from family members and/or friends or official records of detention in support of these claims. The applicant states he was banned from attending the top class school, but has not indicated what school he was banned from attending. In his application he indicated that he completed high school in his home-town (Vinh City) in [year], when he was eighteen years of age.
The applicant’s evidence regarding his parents and other family members is vague and contradictory. In his application he indicated his father and mother, born in [specified years] respectively, are deceased. In his claims he also indicated that he became a priest after his parents died (but did not indicate when they passed away). In his written claims, however, he indicated that he fears if he returns to Vietnam his family could become a target of threats and fines by local officials because of his claimed political activities, which would impact on his parents’ claimed mental health issues, suggesting that his parents are not deceased. The applicant indicated he has never married and did not disclose any siblings or other relations in his application, and indicated that he is not in contact with any relatives in Vietnam, so it is unclear who he is referring to when he comments regarding his family becoming a target of threats and fines by local officials should he return to Vietnam.
The applicant refers to the impact of corruption in Vietnam, commenting that his family’s business suffered at the hands of corrupt officials, but he has not provided any details in support of this claim, such as the nature of the business and how it was affected by the activities of corrupt officials. In the application he stated that he had been self-employed from January 2000 until he departed Vietnam in July 2019, as the proprietor of a mixed retail sales business, but provided no further information on his business activities, which appear to have been ongoing over that nineteen year period, or how they were impacted by the actions of corrupt officials.
While the applicant claimed that he joined the church as a priest this is inconsistent with his claims to have only studied to high school level and to have only worked as the self-employed proprietor of a mixed retail sales business. He has provided no evidence in support of this claim, such as copies of qualifications necessary to enter the priesthood and/or any statements from the church/his bishop.
The applicant stated that he supports the Viet Tan party ‘here in Sydney’ but has provided no details regarding any activities in support of the party or evidence in support of this claim, such as copies of membership documents or statements from party officials. His protection visa application and review application both indicate he has been living in [Suburb 1] in suburban Melbourne since he arrived in Australia in July 2019 and do not indicate he has ever lived in Sydney.

The applicant states that his family were involved in a major land dispute where the local authorities tried to taken family land without adequate compensation, but again has provided no details or evidence in support of this claim, such as the nature of the land (and documents in relations to the land), why the authorities sought to take it, what compensation was offered and the estimated market value, and whether the authorities actually succeeded in taking over the land.
The applicant also claims that, on many occasions, he raised opinions on [social media] regarding democracy, human rights and freedom of speech, but has not provided any details regarding any claimed posts, nor submitted any evidence in support of this claim, such as copies of relevant excerpts from his [social media] account.
These are all matters about which the Tribunal would have questioned the applicant in detail had he attended the hearing.
Political opinion
The current DFAT Country Information Report on Vietnam indicates that Vietnam is a one-party communist state in which CPV members hold all senior government and military positions.[6] Opposition parties are effectively illegal and while some advocacy and activism for broader human rights issues take place, most public protest is about practical local issues and threats to CPV legitimacy are seen as threats to the state and are not tolerated. DFAT comments that it is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
[6] DFAT Country Information Report, Vietnam, 11 January 2022, sections 2.28, 3.49, 3.57, 3.61-3.62 and 5.25-5.26.
DFAT indicates that the situation is the same for online activists and social media users. DFAT comments that low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but states sources told it this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined.
DFAT notes the Government imposes limits on entry and exit for political activists and Government critics and that this is achieved by refusing to issue passports or laying criminal charges to prevent travel. Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam.
In its previous (December 2019) Country Information Report, DFAT noted that opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. DFAT commented that the Vietnam Reform Revolutionary Party (known as Viet Tan) is a US-based opposition group (also with an active branch in Australia) which advocates for democracy in Vietnam. It is considered a terrorist organisation by the Vietnam government. Members of other foreign-based opposition groups, such as the Brotherhood for Democracy, have also been accused of carrying out activities aimed at overthrowing the government. The Brotherhood for Democracy is reported to have funding links to Viet Tan. DFAT noted that in November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist.[7]
[7] DFAT Country Information Report, Vietnam, 13 December 2019, sections 3.47 and 3.53.
The Tribunal finds that the country information makes clear that political activity, including public and online comment and protest activity regarding CPV policies and actions that is perceived as a threat to CPV legitimacy, are seen as threats to the state and are not tolerated. For the reasons set out above, however, the Tribunal is not satisfied that the applicant has ever been, or would in the future be involved in any political activity in Vietnam, online or in Australia that has or would in the future draw him to the adverse attention of the Vietnamese authorities.
In reaching this conclusion the Tribunal also notes that the applicant was able to obtain a Vietnamese passport in May 2019, two months before he departed Vietnam, and leave the country through a major international airport without any apparent difficulties. In light of the country information cited above regarding exit procedures, this lends support to the conclusion that he was not of adverse interest to the Vietnamese authorities when he departed Vietnam in July 2019.
As the Tribunal finds that the applicant would not be seen as opposing the CPV regime, the Tribunal does not accept that he would be denied work rights or that he would experience difficulties moving around town or to other places. The Tribunal does not accept that it would be difficult for the applicant to find accommodation and support himself financially because he would be perceived as opposed to the CPV.
Corruption
In relation to corruption, DFAT indicates that Vietnam ranked 104 out of 180 countries in Transparency International’s 2020 Corruption Perceptions Index. A large anti-corruption campaign in 2017 and 2018 saw thousands of investigations and prosecutions that included senior government officials and senior business leaders. Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but also that corruption is a key concern of everyday Vietnamese people. Despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services.[8]
[8] DFAT Country Information Report, Vietnam, 11 January 2022, sections 2.10-2.11.
Considering the relevant country information, the Tribunal accepts that, notwithstanding recent attempts by the Vietnamese government to address corruption, it remains a significant issue in Vietnam. Given the prevalence of corruption in Vietnam, the Tribunal accepts that the applicant, like most Vietnamese, may have been affected by some corrupt behaviour by officials in Vietnam in the past. On the available evidence, however, the Tribunal is not satisfied that any corrupt behaviour the applicant experienced in the past or might experience in the future amounted to, or would amount to, persecution involving serious harm for one or more of the reasons enumerated in s.5J(1)(a) of the Act.
Land disputes
In relation to land disputes, DFAT indicates that all land in Vietnam is formally owned by the state, which issues usage rights to individuals or organisations. The state retains the right to reacquire the land. Protests about land and its compulsory acquisition occur occasionally and landowners alleging low levels of compensation sometimes leads to protests.[9]
[9] DFAT Country Information Report, Vietnam, 11 January 2022, section 3.64.
The Tribunal accepts that land disputes occur in Vietnam. Considering the available evidence, however, the Tribunal does not accept that the applicant and/or his family were affected by a land dispute in Vietnam.
Religion
In relation to religion, DFAT states that Vietnam is officially an atheist state. While Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion, in practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers. DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, but the situation differs from place to place. Those in large cities are particularly free to practise. Adherents associated with unregistered 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. [10]
[10] DFAT Country Information Report, Vietnam, 11 January 2022, sections 3.13, 3.21-3.31.
DFAT comments that in-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations (which includes the applicant’s home province of Nghe An) and that, in general Catholics in cities worship freely in churches and do not generally face societal discrimination. DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.
The Tribunal accepts that the applicant is a Catholic as claimed. Considering the available evidence the Tribunal does not accept that the applicant ever became a Catholic priest. Based on the relevant country information and the Tribunal’s findings above that the applicant has not and would not engage in political activism, and noting he is from the city of Vinh in Nghe An province, the Tribunal does not accept that the applicant would suffer treatment amounting to persecution involving serious harm due to his religion (Catholic faith) should he return to Vietnam.
Economic issues
The applicant indicated in his statement of claims that he considers many people in Vietnam cannot survive on their monthly salaries.
The 2019 DFAT Country Information Report indicates that Vietnam’s economy stagnated during the first decade of reunification, with central planning predominating, but comments that the government responded in 1986 by commencing a series of reforms (known as Doi Moi or ‘Renovation’ reforms) which opened up the country to foreign investment and achieved economic growth. [11] The report indicates that the US lifted its 30-year trade embargo in 1994, beginning the normalisation of US-Vietnam relations, Vietnam became a full member of the Association of Southeast Asian Nations (ASEAN) in 1995 and joined the World Trade Organization in 2007. DFAT states that Vietnam’s rapid economic transformation has contributed to significant improvements in health, education, and poverty outcomes.
[11] DFAT Country Information Report, Vietnam, 13 December 2019, sections 2.3-2.4, 2.8-2.9, 2.14-2.15.
The World Bank now describes Vietnam as ‘one of the most dynamic emerging countries in East Asia’. The economic reforms launched in 1986 transformed the country from one of the world’s poorest to ‘low middle income status’ over a period of 25 years. Vietnam currently has one of the world’s fastest growing economies, with its gross domestic product (GDP) estimated to have increased by 7.1 per cent (year-on-year) in the first half of 2018. In 2018, GDP per capita was forecast at approximately USD 2,551 (approximately AUD 3,411). According to the World Bank, Vietnam’s poverty rate (defined as those living on less than USD1.90 per day) declined from 20.8 per cent in 2010 to 9.8 per cent in 2016. Reductions in poverty have been particularly pronounced among Vietnam’s ethnic minority population, which has historically experienced higher rates of poverty compared to the majority Kinh ethnic group.
The World Bank also reported in 2018 that Vietnam’s employment rates were high and unemployment rates were very low by global standards. Job quality is low, however, with only 10 per cent of jobs in professional or managerial occupations. The top ten occupations, which employ two-thirds of the labour force, are very low skilled, including agricultural, forestry and fishery labourers. Around three-quarters of jobs in Vietnam are in family farming (39 per cent), household enterprises (20 per cent), or employment without a contract (17 per cent). These occupations are characterised by low pay and limited worker protections. Ethnic minorities, women, and unskilled workers make up the majority of workers in these jobs.
There are four regional minimum wage standards, designed to reflect the cost of living in each area. Region I (including Hanoi and HCMC) has the highest minimum wage, while region IV (for rural areas) has the lowest. The 2018 wage levels were 6.5 per cent higher than in 2017, which increased the minimum monthly wage for region I to VND 3.98 million (approximately AUD 241) and region IV to VND 2.76 million (approximately AUD 167).
The Current DFAT report indicates that, while the COVID-19 pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020, the economy has continued to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the pandemic.[12]
[12] DFAT Country Information Report, Vietnam, 11 January 2022, sections 2.05-2.06.
While the Tribunal accepts that wage rates are much higher in Australia than in Vietnam, the Tribunal finds that the relevant country information does not support the applicant’s contention that people in Vietnam cannot survive on their monthly salaries.
Having carefully considered the available evidence, the Tribunal does not accept that the applicant will be unable to find accommodation and support himself financially if he returned to Vietnam. The relevant country information indicates that unemployment is low in Vietnam and there has been a significant and sustained reduction in poverty in recent years. The Tribunal accepts that wages in Vietnam are low by Australian standards and therefore accepts that the applicant may suffer some economic hardship and stress should he return to Vietnam. However, considering the country information regarding the Vietnamese economy, the Tribunal does not accept that any hardship and stress the applicant might suffer would amount to serious harm. The Tribunal finds there is nothing to indicate or suggest there is a real chance the applicant would suffer serious harm in the form of significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act (that is, for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion), should he return to Vietnam.
Refugee criterion
Given the Tribunal’s findings above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from the CPV government of Vietnam, its authorities and agents, employers, or any other agency, organisation, group or individual, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Vietnam now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13]
[13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from the CPV government of Vietnam, its authorities and agents, employers, or any other agency, organisation, group or individual.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, the Tribunal finds that any economic hardship the applicant might experience if removed to Vietnam, including feelings of emotional distress and/or humiliation due to his economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.
Member of the same family unit
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 555

12 January 2022

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