2010668 (Refugee)

[2021] AATA 1455

2010668 (Refugee) [2021] AATA 1455 (13 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2010668

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jason Pennell

DATE:13 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 April 2021 at 10.17am

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Christian – Catholic – imputed political opinion – opposition to the communist government – particular social group – person with a mental illness – schizophrenia – fear of killing – criminal offences – drug addiction – return visit to Vietnam – access to mental health treatment – decision under review affirmed

LEGISLATION

Mental Health Act 2007 (NSW), s 33
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 425, 501
Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
AYU15 v MIBP (No 2)[2016] FCCA 2309
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
MIMA v Zheng [2000] FCA 50
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
NAMJ v MIMA [2003] FCA 983
Pei Lan He v MIMA [2001] FCA 446
Prasad v MIEA (1985) 6 FCR 155
SZSRL v MIBP [2013 FCCA 2206
VCAD v MIMIA [2004] FCA 1005
Wang v MIMA (2000) 105 FCR 548
Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988)
WZAOO v MIAC (2012) 134 332

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 25 June 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 10 June 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant.

3.The Tribunal invited the applicant to attend a hearing of his application for a review of the delegates decision by video conference on 5 August 2020 at 11.00am (the hearing). Having had regard to the nature of this matter, the individual circumstances of the applicant and due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video conference. In exercising its discretion, the Tribunal 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 video.

4.The applicant appeared before at the hearing by video conference to give evidence and present submissions. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing. The applicant was represented at the hearing.

5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

6.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.

7.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.

8.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).

9.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.

10.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

11.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.

APPLICANT’S CLAIMS AND EVIDENCE

Identity and country of reference

12.The applicant was born [date] in Binh Thuan, Vietnam and claims that he is a citizen of Vietnam. The applicant provided the department with a copy of his Vietnamese passport biodata page.[1] There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the applicant is a citizen of Vietnam and that as such his protection claims will be assessed against Socialist Republic of Vietnam as the country of reference and her 'receiving country'.

Migration history

[1]   [Personal details on Departmental file].

13.Applicant first arrived in Australia with his mother, [named] (‘applicant’s mother’) and his [named sibling] in 2012. On 15 June 2013 the applicant was granted permanent residency on [a] Partner visa as a dependant of his mother.

14.The applicant’s evidence was that he returned to Vietnam with his family in 2015 for a period of one month to visit his grandparents, who have since passed away.  In addition, the applicant stated that he also returned to Vietnam from [August] 2017 to [September] 2017. 

15.On 24 March 2020, the applicant’s visa was cancelled pursuant to s.501(3A) of the Act. The applicants visa was cancelled on the basis that he did not pass the character test pursuant to s.501(6)(a) of the Act, as a result of his criminal record.

16.On 10 June 2020 the applicant made an application for a protection visa.

Applicant’s evidence

17.The applicant evidence to the Tribunal was that he was born on [date] in Binh Thuan, Vietnam. He arrived in Australia in 2012 with his mother and on 15 June 2013 he was granted permanent residency as a dependant of his mother.[2]

[2]    Applicant was granted a [Partner] visa as a dependant of his mother on 15 June 2013; Applicant’s submissions dated 2 June 2020.

18.The applicant’s parents together with his [sibling] all reside in Australia. The applicant’s parents are now divorced.  The applicant has [a] brother in Vietnam but is no longer in contact with him. The applicant’s evidence was that his [brother] did not accompany his family to Australia because he was already married in Vietnam at that time.

19.The applicant attended his local school in Vietnam until [grade]. His evidence was that from the the age of [age] years he worked as [an Occupation 1] until he departed for Australia. In Australia the applicant has worked in a [product business] for approximately five (5) years and then as [an Occupation 2]. 

20.The applicant’s evidence was that he returned to Vietnam in 2015 and 2017. In 2015 he returned to Vietnam with his mother and [sibling] for one month to visit his grandparents. His evidence was that he stayed with his grandparents for the whole month he was in Vietnam. They have since passed away.

21.The applicant claims to be Christian. His evidence was that while he was in Vietnam, he attended the [Church 1] church with his mother, [sibling] and grandparents. He claimed that his grandmother was involved in activities of the local parish, however, he was not able to tell the Tribunal the location of the Church. The applicant’s evidence was that while he was in Vietnam in 2015, he did not experience any harm or any threat of harm.

22.The applicant’s evidence was that returned to Vietnam in 2017 for one month. The applicant was not able to tell the Tribunal when he travelled to Vietnam in 2017 but stated in his application that he returned to Vietnam from [August] 2017 to [September] 2017.  The applicant’s evidence was that he went to Vietnam to fight against to the communists. He stated that Vietnamese communisim is not good and makes people unhappy. He claimed that while he was in Vietnam, he ‘spread the view and perspective of Buddhism and fought the government of Vietnam.’ He claimed that he called people together to work to fight the communist regime of Vietnam. As a result, he claimed that while he was in Vietnam the local government of Binh Thuan threatened his life.  

23.The applicant evidence was that when he returned to Vietnam in 2017, he visited Binh Thuan province and Saigon to catch up with friends. He stayed in each location for two weeks each. The applicant’s grandparents had passed away. As a result, he stayed in [a named] Hotel in Binh Thuan. His evidence was that he also stayed in a hotel in Saigon but could not recall its name.

24.The applicant’s evidence was that while he was in Binh Thuan he met with his friend [Friend A]. [Friend A] is unemployed.  The applicant claimed that he tried to spread the ‘good news’ because the communist regimes try to supress religions. He asked his friend to go door knocking to fight against the regime. However, the applicant’s evidence was that while his friend did door knock, he did not. He claimed that he was not able to find his way around and as a result did not go door knocking. Rather he just stayed at the hotel.

25.Contrary to his evidence that he remained in the hotel, the applicant claimed he was approaching people to raise up against the government. He claimed that he approached a person in the street to ask them to work against the government and communism. As a result, they threatened him. The applicant was not able to provide any details of the person who he claims threatened him. In addition, despite claiming that he had approached people in a systematic way he was he was not able to explain the system or method by which he approached people in the street. In addition, he gave no indication of the number of people or where he approached them.  

26.Nevertheless, the applicant’s evidence was that when he was in Binh Thuan a person threatened to kill him. The applicant was alone when the threat was made. The applicant claimed that he reported the incident to the local authority, but they ignored him. The applicant was not able to identity the person who made the threat. In addition, save to say that he was threatened in the street, he was not able to tell the Tribunal where in Binh Thuan he was threatened. He was not able to tell the Tribunal the name of the street or describe it in any detail.

27.The applicant’s evidence was that after being in Binh Thuan for two weeks he then travelled to Saigon where he went sightseeing with friends.

28.The Tribunal raised with the applicant that his protection application states that he feared returning to Vietnam because of his Christianity.  The applicant said that he was not able to remember how he claimed to be a Christian, due to a mental problem.

29.The applicant claimed that about three years ago he developed a mental problem. He burned his property and was taken to hospital. The applicant’s evidence was that he received on medication, by injection, every four weeks. The applicant was not able to say what medication he was receiving. The Tribunal referred the applicant [Health Induction Assessment] Referenced to the [specified] Report dated [May] 2020 states that he is receiving a drug known as Paliperidone. The applicant stated that he had not seen the medical reports provided to the Tribunal.

30.The applicant confirmed to the Tribunal that he had been charged and convicted of some criminal offences including possession of a prohibitive drug (heroin). The applicant stated that he had been using drugs for approximately four years. Save for a period of approximately two months the applicant had not received any regular treatment for his addiction. He was not able to specifically say when he received the treatment.

31.The applicant claims that if he is returned to Vietnam nobody would support him or take care of him or provide him any accommodation. He stated that his family is in Australia. He has no other family members in Vietnam save for his [brother] with whom he has lost contact.

32.Claimed that he would not be able to return to work as [an Occupation 1] due to his mental health condition. He claims that he could not work both mentally and physically.

33.The applicant’s evidence was that if he was returned to Vietnam, he would go to church.  

34.The applicant claims that he will be harmed by the local government due to his activities against the government in Vietnam.  The Tribunal noted that his evidence was that he had been threatened by an individual and that the authorities had ignored his complaint. Nevertheless, the applicant maintained that he would be harmed by the authorities.

35.The Tribunal asked the applicant if he thought he would be harmed if he was returned to Vietnam as a result of being an asylum seeker or as a result of being convicted of criminal offences in Australia. The applicant stated that he did not know if he would threaten with harm as a result of his convictions.

Applicants Claims

36.Applicant’s claims for protection are detailed in his protection visa application, dated 10 June 2020.[3]  The applicant’s protections claims were detailed by the delegate in the decision dated 31 May 2017[4] as follows:

[3]    [Details on Departmental file]

[4]    [Details on Departmental file]

(a)He came to Australia as a dependent child as part of his mother’s partner visa. He travelled to Vietnam in August 2017. While in Vietnam he shared his views regarding Catholicism and his political opinion about the Vietnamese government, stating it was a cruel communist nation.

(b)He suffers from mental illness and was extremely vocal about his views. He suffered serious harm for sharing his political and religious views about becoming a Catholic. As a consequence, his life was threatened by the Vietnamese’s authorities and the public. He fears being imprisoned for sharing his religious views if he returns to Vietnam.

(c)His attempts to covet people to the catholic religion and voice his opinion regarding the Vietnamese government were shut down abruptly by the authorities.

(d)While in Vietnam he feared leaving his home as he was being threatened by the authorities and members of the public. He was forced to remain in hiding for the majority of his visit to Vietnam. Vietnam police officers were threatening to arrest the applicant. If he returned to Vietnam, his life would be in jeopardy and he would risk being physically harmed by the police and members of the public. He fears being imprisoned or murdered due to sharing his views about his religion and the Vietnamese government.

(e)After the events of 2017 the applicant is too scared to return to Vietnam. He has no contact with anyone in Vietnam. He has one estranged brother with whom he has no contact.

(f)He suffers for schizophrenia and is currently undertaking treatment in [a named] Detention Centre. He believes his mental health will pose a danger for him if he returns to Vietnam.

(g)He cannot relocate within Vietnam because he would have no financial or emotional support and he does not have any family in Vietnam. All his family have relocated to Australia.

The Hearing

37.The applicant claims to have a serious mental illness, which for the reason expressed below is accepted by the Tribunal. As such the Tribunal has been mindful that the applicant is a vulnerable person. The fitness for a person to attend and participate in a heating is not defined in the legislation. However, fitness in the relevant sense must be assessed having regard to the circumstances of each case, the intended purpose of the hearing and the support and assistance provided to the applicant.[5]

[5] NAMJ v MIMA [2003] FCA 983 @58

38.In the case it was the applicant’s evidence that he was receiving medication in detention for his mental health condition and that he was in a stable and healthy condition. The applicant demonstrated a capacity to meaningfully participate in the proceeding.[6] The applicant was represented during the hearing. He was coherent and was able to answer all the questions put to him by the Tribunal. The applicant was provided an interpreter for the hearing but was able to answer questions put to him by the Tribunal directly in English.

[6] SZSRL v MIBP [2013 FCCA 2206 @ [12] & AYU15 v MIBP (No 2)[2016] FCCA 2309 @ [20] Court held that the very least , a real and meaningful opportunity to participate in a hearing would require the applicant to be able to understand the questions asked of him or her to understand words and sentences spoken by the Tribunal and to be able to communicate answers by the construction and uttering meaningful sentences.

39.Accordingly, the Tribunal is satisfied that the applicant was provided a proper hearing under s.425 of the Act.     

COUNTRY INFORMATION

40.In assessing this decision, the Tribunal has considered the available country information. It has considered the Department of Foreign Affairs and Trade Country Information Report – Vietnam dated 13 December 2019 (‘the DFAT Report). Those parts of the DFAT report specifically relevant to the applicants claims and considered by the Tribunal are detailed in Annexure ‘A’ of these reasons. 

ASSESSMENT OF CLAIMS AND FINDINGS.

41.The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Act.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

Credibility

42.When assessing claims the Tribunal must make findings of fact in relation to the claims. In this case the applicant appeared before the Tribunal via video link to give evidence. Nevertheless, the Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

43.The mere fact that a person claims fear of persecution for a 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 the statutory elements are made out. A decision-maker is not required to make the applicant's case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[7]. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[8]

[7] s.5AAA Migration Act 1958.

[8]   MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

44.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[9] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[10] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

[9]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

[10]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

The Accepted facts

45.Having considered the applicant’s claims and the relevant country information the Tribunal accepts and finds that the applicant:

(a)was born on [date] in Binh Thuan, Vietnam.

(b)arrived in Australia in 2012 with his mother and was granted permanent residency on [a] Partner visa as a dependant of his mother on 15 June 2013.

(c)parents together with his [sibling] all reside in Australia.

(d)parents are now divorced. 

(e)has [a] brother in Vietnam with whom he is not in contact.

(f)attended his local school in Vietnam until [grade].

(g)from the age of [age] years worked as [an Occupation 1] until he departed for Australia. He worked in Australia in a [product business] for approximately five (5) years and then as [an Occupation 2]. 

(h)returned to Vietnam in 2015 and 2017.

Refugee

Applicants Relevant Grounds

46.The applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act.[11] That is, by reason of his race, religion, nationality, membership of a particular social group or political opinion.  The applicant submits that he falls within the s.5J(1)(a) of the Act by reason of his religion, his political opinion and by reason of being a member of a particular social group as a person with a mental illness, schizophrenia.

[11] Applicant’s submission dated 29 July 2020

47.For the applicant to claim to be a member of a particular social group it is necessary that as a result of his membership he shares a certain characteristic or element which unite him with the group and that it sets the group apart from society at large. That is to say, not only must the applicant with his group exhibit some common element, it must unite them, making them a cognisable group within their society.[12] The Tribunal accepts that having being diagnosed with a mental illness, schizophrenia, that the applicant is a member of a particular social group pursuant to s.5J(1)(a) of the Act.

[12]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

48.As to the applicant’s political opinion it is not necessarily an opinion that is held by the applicant. It is sufficient that for his political opinion to be imputed to him by the persecutor.[13] Therefore, while the applicant did not provide any particular details of his political opinion beyond the fact that he believed the communist government in Vietnam was bad, it is open to the applicant to claim that he holds a well-founded fear of being persecuted by the authorities in Vietnam as a result of his political opinion. As a result, the Tribunal accepts that his claim of having a well-founded fear of persecution as a result of his political opinion falls within s.5J(1)(a) of the Act.

[13]   MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.

49.Finally, the applicant claims to hold a well-founded fear of persecution by reason of his Catholic religion.

50.The scope of ‘religion’ was considered in MIMA v Darboy,[14] within the context of the Convention. In this case the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

[14] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22]).

51.The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[15] as:

‘71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’

[15] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [71]-[73] Tribunal accepts that the applicant’s religion falls with the scope of s.5J(1)(a) of the Act.

Applicant’s well-founded fear.

53.Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

54.In Chan v MIEA[16] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[17]

[16] (1989) 169 CLR 379 at 396.

[17] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

55.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted if he returns to Vietnam.

56.However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [18]stated:

“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

[18]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

57.      In MIEA v Guo, the Court stated that: ^[19]

[19]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

58.Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below the Tribunal does not accept that the applicant has a well-founded fear of persecution on either a subjective or an objective basis if he is returned to Vietnam. 

Applicants Protest against the Government

59.The applicant claims that if he is returned to Vietnam he will be seriously harmed as a result of him having expressed his political views against the government. He claims that his life was threatened by the Vietnamese’s authorities. The applicant claimed that while in Vietnam he feared leaving his home as he was being threatened by the authorities and members of the public. He claimed that he was forced to remain in hiding for much of his time in Vietnam as police officers were threatening to arrest him. The applicant’s evidence in relation him expressing his political views causing him to be threatened was vague, confused and lacking in any detail.

60.However, the applicant evidence was that he was not threated in Vietnam during his visit in 2015.

61.The applicant returned to Vietnam in 2017 to visit friends. His evidence was that while he was in Binh Thuan he met with his friend [Friend A] who was unemployed.  The applicant’s evidence that he asked his friend to go door knocking to fight against the regime. However, he stated that he did not go doorknocking. Rather, he stayed in his hotel because he was not able to find his way around. Nevertheless, he claims that he approached a person in the street to ask them to work against the government and communism who he claims threatened him. The applicant was not able to provide the person’s identity to the Tribunal. Despite his claim that he was being threatened by the authorities, the applicant’s evidence was that he reported the incident to the police, but they ignored him.  In addition, despite his evidence that he remained in his hotel, the applicant also claimed that he approached people in a systematic and organised manner. However, he was not able to explain to the Tribunal his method of approaching people including the time he spent approaching people, the number of people he approached or the specific information he was attempting to give to them. 

62.Finally, despite his claim that he feared leaving home because he was threatened by the authorities and members of the public, the applicant’s evidence was that when he was in Saigon he went sightseeing with friends. As a result, based on the applicant’s own evidence the Tribunal does not accept that he expressed his political views against the government as claimed or that he was threatened by the authorities as claimed. The applicant’s evidence indicates that he did not advocate anti-government views in manner by which he would have come to the attention of the authorities. Therefore, based on the applicant’s own evidence the Tribunal finds that he did not engaged in door knocking or any other activity by which he expressed any view that may have been against the Vietnamese government or communism generally.  The fact that the incident described by the applicant was dismissed by the police, indicates that he was not expressing views that were considered by the authorities as anti-government or considered a threat a threat to the authorities as claimed.

63.Accordingly, the Tribunal does not accept that the applicant’s evidence in relation to his activities by which he claims to have expressed his views against the Vietnamese government. As such the Tribunal finds that there is no real chance that he will be seriously harmed if he is returned to Vietnam by reason of him having expressed his political views as claimed.

Applicant’s Religion

64.The applicant claims that he will suffer serious harm as a result of him being Catholic. The question of whether an applicant has a well-founded fear of being persecuted for reasons of his religion may arise in a variety of circumstances including the application of religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[20]  The motivation of the persecutor or how general law is applied is often relevant to whether  a persecutory intent exists.[21]

[20] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.

[21]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

65.Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[22] It requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[23]

[22]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

[23]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

66.In this case however, the applicant did not provide any evidence in support of his claim that his life had been threatened by the Vietnamese’s authorities as a result of him sharing his Catholic views. There was no evidence of him having attempted to covet people to the catholic religion. 

67.The country information[24] states that Catholics reside in most districts and provinces of Vietnam and that they are generally able to practice freely at registered Churches, particularly in areas that have large Catholic populations. However, its reported that there has been an increase in harassment toward priests and parishioners as a result of the Catholic Churches involvement in organising and engaging in demonstrations on several issues including land disputes and the Formosa environmental disaster in 2016.[25] The DFAT report assesses that Catholics who belong to registered Churches and are not politically active face a low risk of official harassment.[26] However Catholic adherents who are seen as challenging the government’s authority or policies face moderate risk of harm for the authorities.

[24] DFAT Report @ p. 22

[25] ibid

[26] Op Cit @ p.23

68.The applicant did not provide any evidence of his practice as a Catholic. His evidence was that when he visited Vietnam in 2015, he attended [Church 1] in Binh Thuan province. The country information reports that houses churches are face constant surveillance by the authorities and that Catholics who belong to house churches are likely to come under surveillance by the authorities.[27]  In any event, the applicants evidence was that he was not threatened with any harm during his visit to Vietnam in 2015.

[27] ibid

69.The applicant did not provide any evidence of him having attempted to convert people to the Catholic religion as claimed. The applicant’s written claims state that his attempts to convert people to the Catholic religion was shut down abruptly by the authorities. He claimed that he was threatened by the authorities (including the police) and members of the public forcing him to remain in hiding for much of his visit to Vietnam. As such, he claimed that he feared being imprisoned for sharing his religious views if he returns to Vietnam. However, contrary to his written claims the applicant’s evidence to the Tribunal was that he travelled to Vietnam in 2017 to ‘spread the view and perspective of Buddhism’ rather than his Catholic faith. His evidence to the Tribunal was that he was threatened by one person who he had approached in the street. The applicant claimed that he reported the incident to the authorities, but they did not take any interest in the matter. Finally, rather than being forced into hiding as claimed, his evidence was that he spent all his time in Saigon sightseeing with friends. 

70.The Tribunal accepts that the applicant is Catholic.  The country information states that as a Catholic the applicant would be able to practice his faith freely at registered Churches. The DFAT report[28] states that Catholic adherents who are perceived to challenge the authority or interests of the government and it’s polices, (particularly through political activism) face a moderate risk of harassment from the authorities. However, the applicants own evidence indicated that he did not attempted to convert people to the Catholic religion as claimed.  There was no evidence that supported his claim that his activities had been shut down abruptly by the authorities, that he was threatened by the authorities or that he had been forced into hiding. Rather, his evidence was that he remained in his hotel room and subsequently went sightseeing in Saigon without incident. As a result, the Tribunal does not accept the applicant’s evidence that he tried to spread the ‘good news’ because communist regimes try to supress religions as claimed. Therefore, based on the applicant’s own evidence and the available country information, the Tribunal does not accept that there is a real chance he will be seriously harmed if he is returned to Vietnam by reason of his Catholic faith.

[28] ibid

Applicants Mental Health

71.The applicant has been diagnosed as having schizoaffective disorder with a background history of substance abuse. [29] Schizoaffective disorder[30] is a mental illness presenting as a combination of symptoms, including hallucinations or delusions, depression, or mania. The symptoms of this disorder are different in each person. An individual may experience psychotic symptoms such as hallucinations or delusions. Its reported[31] that generally a patient will also have symptoms of a mood disorder, either bipolar or depressive. A course of the symptoms usually comes in waves: periods of severe symptoms followed by cycles of less severe symptoms.[32] Its reported that people with schizoaffective disorder typically respond best to a combination of treatments including medications, psychotherapy, and life skills training. As each case varies the treatment for each case will be different and will depend on the type and severity of symptoms and whether the person has the bipolar or depressive type.[33] Schizoaffective disorder require ongoing treatment and support.[34]

[29] Letter by [Doctor A], [Health Service 1] dated 20 June 2017; [Health Induction Assessment] dated 12 September 2018.

[30] Mayo Clinic; 5 August 2020; Facty Health dated 2 October 2018, ibid

[32] ibid

[33] ibid

[34] Mayo Clinic; 5 August 2020.

72.[In] April 2017, the applicant was admitted to the Mental Health unit at [Hospital 1] by the police pursuant to s.33 of the Mental Health Act 2007 (NSW) after he burnt down a granny flat. He claimed that he heard voices telling him to brunt the flat. He was then transferred to [Hospital 2] where he was diagnosed with schizoaffective disorder with a background of substance abuse. As result an AVO was taken out against the applicant by his mother and he was homeless. The applicant was discharged from hospital [in] June 2017 on a Community Treatment Order to a Temporary Accommodation Program.[35]

[35]  Applicants submissions dated 2 June 2020.

73.The applicant’s MH Discharge /Transfer Summary report dated [in] June 2017[36] states that he burned the flat because he had been angry as his wife and mother had been hiding from him things about his ex-wife and [age] year old son in Vietnam.  It states that he set the flat on fire to gain attention from the police about [social media] postings.[37] The applicant gave no evidence about his ex-wife to the Tribunal but stated in his application that he has an ex-wife in Vietnam. 

[36]  MH Discharge /Transfer Summary report dated [in] June 2017 by [Doctor A]

[37]  ibid

74.[In] July 2017 the applicant was admitted to [Hospital 2] but was discharged [later in] July 2017.[38]

[38] ibid

75.[In] December 2019 the applicant was charged with offences which included possession of a prohibited drug, drive while disqualified, two counts of larceny, armed with intent to commit an offence, stalking and being in possession of stolen goods. The applicant was convicted of the charges and received an aggregate term of imprisonment of two (2) years commencing [in] December 2020 to [December] 2021. The term of imprisonment was to be serviced by way of an Intensive Corrections Order.[39] The applicant is currently in detention by reason of having his visa cancelled.

[39] ibid

76.The applicant submitted that since being in detention he has been receiving treatment and is now coherent and willing to accept responsibility for his actions.[40] The applicant’s evidence was that he was receiving a monthly injection to treat his condition. The medical reports[41] provided by the applicant indicate that he is receiving a monthly dosage of Paliperidone and a daily dosage of Sodium Valproate. The report[42] states that he has been stable on this medication and does not present as a significant risk to himself or others. Based on the medical reports provided the Tribunal accepts the applicant is suffering from schizoaffective disorder and has a background history of substance abuse as claimed. Based on the reports provided by the applicant, the Tribunal accepts that his mental health condition is significant.  

[40]  ibid

[41]  Letter by [Doctor A], [Health Service 1] dated 20 June 2017; [Health Induction Assessment] dated 12 September 2018.

[42]   ibid

77.Schizophrenia is ranked as the seventh most prevalent disorder in Vietnam with 0.5 percent of the population living with the condition.[43] In Vietnam, depression and schizophrenia account for at least 75% of all psychiatric inpatients.[44]  People with schizophrenia have access to a community based mental health program (CMH) which includes free access to a number of essential psychotropic medicines for prioritized mental health disorders which includes schizophrenia, depression and epilepsy as well as monthly consultation with medial staff in the community health stations. Financial and social support are offered to patients with severe mental disorders and their caregivers. Moreover, the psychiatric private doctors’ offices cover the community-based services in the urban areas.  Schizophrenia along with epilepsy is considered a social disease and the patients are treated free with medication provided by the government.[45] Its reported that a series of provincial psychiatric hospitals has been established and put into operation, creating a clear and effective development of the mental health sector in the health care service for the people and the community in Vietnam.[46]

[43] ‘Treatment recommendation difference for schizophrenia and major depression: a population based study in a Vietnamese cohort’, International Journal of Mental Health Systems , 14 November 2018, @ p.2; BMC Public Health ‘The burden of clinically significant symptoms of common and severe mental disorders among adults in Vietnam: a population- based cross- sectional survey’ by Trang Nguyen Tuan Tran, Thach Tran and Jane Fisher, 19 August 2019 @ p.3

[44] ‘Multilevel assessment of public attitudes and stigma towards psychiatry and mental illness in Vietnam’ dated March 2020 by Kerem Böge, Charité Universitätsmedizin Berlin, Charité Department of Psychiatry and Psychotherapy,

[45] ‘Mental Healthcare in Vietnam.’ Tran Van Cuong, Taiwanese Journal of Psychiatry, 2017 @ p.291 ibid

78.The Government of Vietnam over the last couple of decades has devoted increasing attention to the mental health of the population.[47] Its reported that the Government has initiated reforms of both the mental health system managed by the Ministry of Health (MoH) and the social protection system managed by the Ministry of Labour, Invalids and Social Affairs (MOLISA). While the mental hospitals and social protection centres remain the major element of the system, there has been a strong move toward community-based programs.[48]

[47] Springer link Mental Health in Vietnam (Part of the International and Cultural Psychology book series) dated 27 February 2017 by Harry Minas, Claire Edington, Nhan La and Ritsuko Kakuma; ibid 

79.The DFAT Report provides an overview of the mental health system in Vietnam. It reports that:

2.25Currently, mental health and psychosocial services are provided through social welfare and social protection centres, mental health hospitals and psychosocial units in schools. The Ministry of Health is responsible for health centre and hospital services to diagnose and provide treatment for serious and persistent mental illness stemming from neurological conditions and developmental disabilities. MOLISA provides social support policies for social protection beneficiaries and services for serious cases. The Ministry of Education and Training provides psychosocial counselling units in schools and life-skills training.

2.26 NGOs are increasingly providing mental health and psychosocial related services, and familial and community-based support is also common. In 2011, the government introduced a program for social support and community-based rehabilitation for people with mental illness for the period 2011 to 2020 (known as Decision 1215). This program focuses on the family and community provision of spiritual and material support, and rehabilitation. Herbal medicine and shamanism are also used to treat mental illness in some areas…………[49]

[49]  DFAT Report @ p.12-13

80.The Tribunal has considered the available country information[50] in relation to the available support for individuals with disabilities in by the state in Vietnam. The 2013 Constitution stipulates[51] that Vietnamese citizens are guaranteed the right to social security. Vietnams system of social assistance comprises three pillars: social assistance transfers, social care and emergency assistance. The country’s current social security and social assistance systems are summarised in United Nations Development Pathways report as follows:[52]

(a)  Social insurance mechanisms are set out in the Social Insurance Law and financed by deductions from the salaries of employees – although, nominally, part of the deduction is referred to as an employers’ contribution14 – and aim to enable people smooth their consumption over their lifetimes: in effect, by paying contributions, people insure themselves against particular contingencies – such as old age, disability, sickness or unemployment – and, if and when they occur, they are eligible to receive regular and predictable payments for as long as the contingency lasts.

(b)  Social assistance transfers are financed from general government revenues and aim to offer individuals or families with some form of minimum income. They can either be provided as entitlements – in which they are made available to everyone of a particular category (such as children, elderly people or people with disabilities) – or directed to people living in poverty, as a form of welfare payment.

(c)   Social care services provide additional support to vulnerable categories of the population who are unable to care for themselves, either by offering them assistance in their homes or in an institutional context. The support complements social assistance transfers, which enable vulnerable people to pay for their living costs. Social care services also include the social work system addressing a wide range of issues experienced by vulnerable families and help people engage with other programmes (including therapeutic, psychological, rehabilitation and return to work support).

(d)  Emergency assistance offers short-term support to those hit by natural shocks and crises. It is not restricted to the provision of cash but could encompass a wide range of in-kind benefits, including support for housing

[50] UNDP, Social Assistance in Vietnam: A Review and Proposals for Reform,’ Development Pathways 2016;  Article 34, 2013 Vietnam Constitution.

[52] UNDP, Social Assistance in Vietnam: A Review and Proposals for Reform,’ Development Pathways 2016;  @ p.19

81.Nevertheless, despite the provision of social welfare services by the Vietnamese government, its reports that Vietnam has struggled to keep pace with the speed of development flowing the economic reforms of the 1980’s.[53] 

[53] Op Cit @ p.3

82.In addition, there is no suggestion that as a citizen of Vietnam he would be denied household registration. Household registration[54] (known as ho khau) is used by officials to determine the levels of services provided to villages and provinces. It links a person’s right to access government healthcare, education and other services to their place of residence. The ho khau registration is also essential for obtaining employment with the government or in state-owned enterprises.

[54]  World Bank Group; Vietnam Academy of Social Sciences. 2016. Vietnam’s Household Registration System. Ha Noi: Hong Duc Publishing House. © World Bank. License: CC BY 3.0 IGO. DFAT Report @ p.46

83.The country information reports that the 2006 Law on Residence establishes the household registration system and policies. There are two categories of registration: temporary and permanent (reduced from four under the previous law).[55] In 2013, revisions were made to the law in response to concerns raised by the Ministry over rapid urbanisation in major cities and more people changing their status to permanent after one year of residence (previously three years). The DFAT report notes[56] that the ho khau registration is initially obtained through the registration of a person’s birth with the village or provincial administrators.

[55] DFAT Report 2017 @ p.25

[56] ibid

84.Vietnam’s residency law and accompanying regulations ensure Vietnamese who have been living overseas can register for permanent residency and receive house or registration papers.[57] Persons absent from their permanent place of residence for more than 6 months without registering their temporary absence and without plausible reasons shall have their names crossed out from the household registration book. When they return, they must re-apply for registration of their permanent residence.[58] Registration is not made more difficult for individuals who no longer have relatives in Vietnam or have or who have acquired criminal records overseas.

[57] Vietnam’s household registration system 

[58] Tracks, ‘Return to Vietnam.’ re-apply for permanent residency returning Vietnamese must provide the following;

(a)A declaration of any changes to house or registration details and members.

(b)A declaration of current household members.

(c)Documentary evidence of a legal place of residence, unless the person is accepted for registration with an existing household.

(d)A valid foreign passport or residence person permit.

(e)A repatriation document issued by Vietnamese Representative Office in the country the applicant is leaving.

(f)A Vietnamese passport with an entry permit stamp from Vietnamese border authorities, if the person still holds a Vietnamese passport.

86.There is nothing to indicate that the applicant does not currently hold, or could not obtain, the necessary identity documents required to reapply for household registration. To register for residence in a centrally administered city, the person must apply for residency to the local police and allow 15 days for processing.[59]

[59] Refugee review tribunal based on the available country information and in circumstances where the applicant has no outstanding criminal orders or penalties, the Tribunal finds that he will be able to obtain household registration upon his return to Vietnam.

88.The applicant has indicated that he has friends in his local area ([Friend A]) and as such, the Tribunal accepts that the applicant would return to his home area of Bình Thuan. Accordingly, the Tribunal has considered the available country information about the applicant’s home area, Bình Thuan. The Tribunal was not able to locate any information directly related to the provision of mental health services in the area. However, it notes that Bình Thuan had a population of approximately 1.2 million people in 2016[60] and is currently one of the most urbanized provinces on the South-Central Coast of Vietnam.[61]  It has enjoyed continued economic growth over recent times having diversified its economy toward the manufacture industrial and high technology products in the energy, mining, construction materials and food processing, biotechnology, mechanical industries.[62] The country information reports that in 2020 hospitals in Bình Thuan where provided greater resources, including an addition of ‘500 doctors, nurses and other personal’.[63] Its reported that in addition to major hospital upgrades, from 2020 to 2025 many other hospitals in the province will be turned into professional medical centres.

[60]  Vietnam News, ‘New facilities at public hospitals provide better healthcare services,’ 14 October 2020, by Gia Loc Dinh Hang, provide-better-healthcare-services.html

89.The Tribunal accepts that the mental health facilities and the social support for Vietnam citizens with a psychiatric condition are not as comprehensive as that provided in Australia. The Tribunal also accepts that the health care system in Vietnam tends to be stronger and more comprehensive in the more urban areas of the country. As indicated above, Bình Thuan is an economically well-developed province within which here is a range of well-developed industries. It has a well development health system which continues to be developed and upgraded to meet the increasing demand within the region. Accordingly, the Tribunal finds that the applicant would be able to access medication for his mental condition in his local province of Bình Thuan

90.The Tribunal has accepted that the applicant suffers from schizoaffective disorder and that his mental health condition is significant. However, the Tribunal notes that his condition has been treatable. There is no country information which suggests that the applicant’s medication, paliperidone[64] is not available to health professional in Vietnam.  In fact, the available country information indicates that the applicant’s medication is available in Vietnam. [65] Therefore, as a citizen of Vietnam, the applicant would be able to access mental health facilities and treatment in Vietnam on an equal basis with other citizens of the country. There is no evidence to suggest that he would be systematically or discriminatorily denied access to mental health facilities in Vietnam.  

[64] Paliperidone is sold under the trade name INVEGA among others. It is a typical antipsychotic. It is marketed by Janssen Pharmaceuticals. INVEGA is an extended release formulation of paliperidone that uses the OROS extended release system to allow for once-daily dosing.

[65] ‘Polypharmacy and psychotropic drug loading in patients with schizophrenia in Asian countries: Fourth survey of Research on Asian Prescription Patterns on antipsychotics’ 14 May 2018

91.Therefore, based on the available country information, the Tribunal finds that the applicant will be able to obtain household registration and access Vietnams social security and health facilities. Accordingly, the Tribunal finds that the applicant will be able to access treatment for his mental health condition in Vietnam. 

92.The Tribunal accepts that having a mental illness may mean that the applicant is at a greater risk of being targeted by the authorities for any anti-government views he may hold if he is returned to Vietnam. However, the evidence was that the applicant travelled to Vietnam in August 2017. The medical report indicates that he was discharged from hospital in July 2017[66] and was receiving monthly treatment for his mental condition. The Tribunal has found that the applicant will be able to access medical facilities and medication in Vietnam. As such, in circumstances where the applicant is returned to Vietnam the Tribunal finds that he will continue to receive reasonable access to available treatment for his mental condition. Accordingly, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he is returned to Vietnam as a result of his mental health if he is returned to Vietnam.   

[66] MH Discharge/Transfer Summary p.3

93.In addition, in circumstances where the Tribunal has found that the applicant did not express anti-government views on his visit to Vietnam as claimed and where it has found that the applicant will be able to access medication for his mental condition in Vietnam, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Vietnam by reason of him expressing anti-government views as a result of his mental condition. 

94.Therefore, based on the applicant’s own evidence and the available country information, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he returns to Vietnam by reason of his mental health.    

Applicant as a Drug User

95.The applicant’s evidence was that had been using drugs for approximately four years. The medical report dated [in] June 2017 stated that he reported that he had used ‘heroin four years ago. His evidence was that, except for a period of approximately two months, he had not received any regular treatment for his addiction. He was not able to say when he received the treatment but nevertheless indicated that he was no longer addicted to heroin. There was no evidence that indicated he was likely to become addicted to drugs again if he was returned to Vietnam.’ While the Tribunal accepts that he had been addicted to heroin, based on the medical report and the applicant’s own evidence it finds that he is no longer addicted to the drug.

96.The country information[67] reports that the Vietnamese government in the past engaged in policies designed to supress the consumption and trade of drugs. Its reported that these policies at times, contravened international human rights law.[68] They included the incarceration of drug users in compulsory treatment centres and the stigmatization and abuse of drug users by the police. However, since the 1990’s and with the advent of the HIV epidemic, the government has switched to policies that reduce the level of harm to drug users in an attempt to reduce the level of needle sharing.[69] As a result its reported that Vietnam transformed it drugs policy by incorporating harm-reduction approaches.[70] In 2013, it declared its intention to reduce the number of compulsory treatment centres, known as 06 Centres[71] and to increase resources for community-based voluntary treatment centres. While it does maintain compulsory treatment for drug dependence, the Vietnamese Government has scaled up voluntary and diversified services for drug dependence treatment and care at the provincial level.[72] Methadone maintenance treatment (MMT) has proven to be effective in treating opioid dependence[73] with MMT services being provided primarily by public clinics.[74]

[67] Centre for 21st Century Security and Intelligence Latin America Initiative, ‘A Slow March from Social Evil to Harm Reduction: Drugs and Drug Policy in Vietnam’ 2016 by James Windle ibid

[69]  ibid

[70] ibid

[71] December 2013 Drug Rehabilitation Renovation Plan. Government of Vietnam, Vietnam AIDS Response Progress Report 2014: Following Up the 2011 Political Declaration on HIV / AIDS; UNODC, Viet Nam is Discussing Voluntary Community Based Treatment and Care; U.S. Department of State, 2014 International Narcotics Control Strategy Report; UNAIDS, “Alternative Action on Compulsory Detention: Innovative Responses in Asia,” news release, October 5, 2012, UNODC, “Viet Nam Communes Trials Communes Trial Community-Based Drug Dependence Treatment,” news release, March 27, 2012,

[72] UNITED NATIONS OFFICE ON DRUGS AND CRIME, ‘Drug dependence: Viet Nam is discussing voluntary community-based treatment and care’, 9 June 2014 Harm Reduction Journal, ‘Preferences for methadone clinics among drug users in Vietnam: a comparison between public and private model.’ dated 6 January 2020 ibid

97.While the Tribunal accepts its possible that upon his return to Vietnam the applicant may become addicted to drugs once again, it notes that there is treatment available to the applicant if he starts abusing drugs upon his return. There is no evidence that the applicant would be denied treatment for his drug addiction on systematic and discriminatory manner. As a citizen of Vietnam, he would be entitled to treatment on the same basis as other citizens of the country. As such, in circumstances where treatment  for drug abuse is available to the applicant, any harm that the applicant may suffer as a result of his use of drugs on his return to Vietnam would lack the systematic and discriminatory conduct necessary for it to be considered persecution for the purposes of s.5J(4) of the Act.  As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Vietnam as a result of his addiction to drugs as claimed. 

Applicants Criminal Convictions

98.The applicants’ evidence was that he had been charged and convicted of some criminal offences including possession of a prohibitive drug (heroin). The Tribunal asked the applicant if he believed he would be harmed if he was returned to Vietnam as a result of him being convicted of criminal offences in Australia.  The applicant stated that he did not know if he would threaten with harm as a result of his convictions.

99.The principle of double jeopardy applies in Vietnam. It is regulated by the Vietnamese Constitution, Penal Code and Criminal Code (2015) and referenced in the Law on Mutual Assistance (2008). According to the Ministry of Justice, the principle of double jeopardy applies in Vietnam in that 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. Nevertheless, 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’.[75] In this case there are no outstanding sentences or orders against the applicant.

[75] DFAT Report @ p.36

100.Therefore, based on the country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Vietnam by reason of his criminal convictions in Australia. 

Harm arising from Discrimination.  

101.While not specifically raising the issue, it was open to the applicant to claim that he would be seriously harmed as a result of suffering for societal stigma and discrimination.  In Vietnam[76], there has been an increase in demand for adequate and effective mental health care services. Public attitudes towards mental illness, as well as corresponding treatment options have influenced the behaviour of patients and caregivers, affecting the course of their treatment. This is particularly the case in relation to the treatment options for depression and schizophrenia, the two most common psychiatric disorders in Vietnam.[77]

[76]  International Journal of Mental Health Systems volume 12, Article number: 70 (2018), ‘Treatment recommendation differences for schizophrenia and major depression: a population-based study in a Vietnamese cohort,’ 14 November 2018 Kerem Böge, Eric Hahn, Tien Duc Cao, Lukas Marian Fuchs, Lara Kim Martensen, Georg Schomerus, Michael Dettling, Matthias Angermeyer, Van Tuan Nguyen & Thi Minh Tam Ta; ibid

102.A study in 2015 surveyed 246 patients with schizophrenia in central Vietnam and found that stigma and discrimination are common.[78] It stated:

The results of this study reveal that being treated as less competent, being viewed unfavourably, avoiding disclosure of psychiatric conditions and being avoided by others were among the most frequently reported experiences.  More than half of interviewed participants said that these experiences happened ‘sometimes’ to frequently. Being advised to lower expectations and witnessing hurtful or offensive comments about the mentally ill were also very common.

[78] Stigma experiences among people with schizophrenia in central Vietnam,’ Doan Vuong Diem Khanh, Michael P Dunne, Vo Van Thang, Tran Binh Thang, Vietnam Journal of public Health, January 2015; on the country information the Tribunal accepts that the applicant has a real chance of encountering social discrimination towards him on the basis that he suffers from a mental disorder. However, in circumstances where the applicant would be able to access treatment for his mental condition, and would be able obtain household registration giving him access to health and social services, the Tribunal does not accept that the discrimination outlined in the  country information would amount to serious or significant harm.

104.As a result, the Tribunal finds that there is not real chance the applicant will suffer serious harm by reason of him suffering from societal stigma and discrimination due to his mental health if he returns to Vietnam.

Lack of emotional and financial support

105.The applicant claims that he has no family in Vietnam, save for his estranged brother, to help both provide emotional and financial support.  It submitted that he would face serious hardship of he was removed for Australia to Vietnam in that he would not be able to establish himself and maintain basic living standards due to his mental condition. The applicant claims that due to his mental condition if he is returned to Vietnam, he would not be able to return to work, particularly as [an Occupation 1]. The Tribunal notes that his application and medical report to his ex-wife and child in Vietnam. Nevertheless, the Tribunal accepts that he would not receive any support from his family (including his ex-wife and child) if he was to return to Vietnam. 

106.However, the tribunal does not accept that he would not receive emotional and financial support as claimed.  The Tribunal accepts, that given that applicant’s mental condition he would find it difficult to find employment in Vietnam. However, in circumstances where the applicant will be able to obtain household registration and access the state social security, the  Tribunal does not accept that the applicant would face significant economic hardship, denial of basic services or the denial of a capacity to earn a living to the extent that he would threaten his capacity to subsist.

107.The applicant’s submission to the Tribunal was that his mental condition is now stable.[79] The Tribunal notes that his Discharge/Transfer Summary report[80] states that he was discharged from [Hospital 2] [in] June 2017 noting that his condition had improved and remained stable. The report refers to the fact that he worked in a [product business] for five (5) years and then as [an Occupation 2] from time to time. Despite having been diagnosed with schizophrenia disorder, the medical report states that he denied any difficulty in working.[81] Therefore, based on the medical report provided it appears the applicant has been able to maintain employment while suffering from his mental illness.

[79] Applicant’s submissions dated 2 June 2020.

[80] MH Discharge/Transfer Summary Final Report dated [in] Jun 2017

[81] Ibid; [Departmental file details], Case No 2010668 @ p.60.

108.In addition, the applicant’s evidence to the Tribunal that he had been addicted to heroin for approximately four years, but he was no longer addicted. The medical report dated [in] June 2017 stated that had used ‘heroin four years ago.’  Tribunal accepts that he was addicted to heroin but based on the medical report and his own evidence finds that he is no longer addicted.

109.Therefore, in circumstances where the applicant has already displayed the ability to work while dealing with his mental illness and addiction to drugs, the Tribunal does not accept that he will not be able to find work. While the Tribunal accepts it will be difficult for him, it does not accept that the applicant will not be able to find employment in Vietnam.  In addition, the Tribunal has already found that as a citizen of Vietnam he would be entitled to receive social security benefits. As such he will be able to access funds from the state for his own economic benefit. In addition, the tribunal has already found that he will be  able to access the states social system for the benefit of his own mental condition and economic well-being.

110.Finally, the applicant stated that he has friends in his local area and in Saigon. It therefore appears that the applicant has friends and associates in Vietnam from whom he will be able to obtain emotional support.

111.Therefore, the Tribunal finds that there is no real chance that the applicant would suffer serious harm due to a lack of emotional and financial support considering his mental health and his lack of family ties in Vietnam. 

Applicant as a Returned Asylum Seeker

112.The applicant did not specifically make any claim, but on the evidence presented to the Tribunal it was open to the applicant to claims that he would be harmed as a returned asylum seeker. It was open to the applicant to claim that as a result of his anti-government views claim he would be persecuted upon his returned to Vietnam as a failed asylum seeker. 

113.However, the Tribunal notes that the country information indicates that most individuals who depart Vietnam illegally for the purposes of seeking asylum are likely to be able to return to Vietnam without facing harm. DFAT report[82] states that it is not aware of returnees who have applied for asylum being treated any differently to other returnees. Article 120 and 121 of the Penal Code prohibits fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration. However, there are no reported cases of this provision being used against asylum seekers. There is no evidence that the applicant fled Vietnam with the view of opposing or avoiding the authorities. In any event returns to Vietnam are usually done on the understanding that the individual in question will not face charges as a result of making an application for protection.[83] 

[82] DFAT report @ p.43

[83] Ibid, DFAT Report refers to the 2016 a Memorandum of understanding signed between Australia and Vietnam by which a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia’ was established.

114.In this case the applicant the applicant did not depart Vietnam unlawfully. He arrived in Australia with his mother, and his [sibling] in 2012 and was granted a permanent residency on [a] Partner visa on15 June 2013 as a dependant of his mother. The applicant has returned to Vietnam on two previous occasion in 2015 and 2017 without any experiencing any difficulty from the authorities upon his arrival or departure on each occasion. 

115.While the applicant claims to have left Vietnam due to his religion and his anti-communist views, the Tribunal has found, for the reason expressed above, that he would not be seriously harmed by reason of religious or political views upon his return to Vietnam.  As such there is no indication that he would be detained as a returned asylum seeker by the Vietnamese authorities upon his return to Vietnam. Nevertheless, if this was to occur the Tribunal does not consider that, given the applicant’s background, profile or the fact that he has sought asylum in a western country, would mean that he would be detained. In the unlikely event that the applicant is detained its likely not to be for any extended period and that he would be released without harm. As such, the Tribunal finds that any such detention would not constitute serious harm as defined in s.5J of the Act.

116.The country information[84] clearly states that the Government of Vietnam prevents the exit and entry of those individuals considered to have anti-government political profile. Given the fact that the applicant was able to travel to and depart Vietnam without hindrance indicates that he had no political profile in Vietnam at the time of his departure. The applicant claims that he was threatened by a person in Vietnam which he reported to the authorities. His evidence was that the authorities were not interested in his complaint and took no action. In such circumstances and given the passage of time, it’s highly unlikely that the applicant is of interest to the Vietnamese authorities as claimed. There is no evidence of him being politically active in Australia. As such the Tribunal finds that there is no real chance the applicant will suffer serious harm by reason of his political opinion in the event he returns to Vietnam. The Tribunal has considered the applicant’s evidence, the available country information and had regard the applicant’s circumstances and profile, including his addiction to drugs, his mental illness and lack of support if he is returned to Vietnam. Having considered these matters individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing there is a real chance the applicant will be seriously harmed in the event that he returns to Vietnam by reason of his political opinion, his religion or by reason of his membership of a particular social group. As such the Tribunal finds that there is no real chance of persecution for one or more of the reasons mentioned in section 5J(1)(a) of the Act in the receiving country.

[84] DFAT Report @ p.43

117.As such, the Tribunal finds that the applicant is not refugee as defined in s.5H of the Act and the criteria in section 36(2)(a) of the Act is not satisfied for this reason. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36.2(a).

Complementary Protection

118.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

119.The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment.  In particular, the applicant claims that there is a real risk he will suffer significant harm for the reasons detailed in her application for a protection visa as expressed above.

2.25 Currently, mental health and psychosocial services are provided through social welfare and social protection centres, mental health hospitals and psychosocial units in schools. The Ministry of Health is responsible for health centre and hospital services to diagnose and provide treatment for serious and persistent mental illness stemming from neurological conditions and developmental disabilities. MOLISA provides social support policies for social protection beneficiaries and services for serious cases. The Ministry of Education and Training provides psychosocial counselling units in schools and life-skills training.

2.26 NGOs are increasingly providing mental health and psychosocial related services, and familial and community-based support is also common. In 2011, the government introduced a program for social support and community-based rehabilitation for people with mental illness for the period 2011 to 2020 (known as Decision 1215). This program focuses on the family and community provision of spiritual and material support, and rehabilitation. Herbal medicine and shamanism are also used to treat mental illness in some areas. Due to remoteness from mental health service providers, lack of awareness, and adherence to ethnically based community practices, those suffering from mental health issues will often take herbal remedies and perform certain rituals before seeking formal treatment. The 2018 MOLISA study also found that, while explicit stigma toward mental health patients was declining, many people were still reluctant to access mental health services due to perceived stigma.

2.27 Illegal drug use is a significant social problem and is reportedly increasing. According to the United Nations Office on Drugs and Crime (UNODC), there were 222,582 registered drug users (96 per cent male) in 2017, marking an increase of 11,181 users compared to 2016. While heroin is still the most widely used drug, the use of amphetamine-type stimulants (ATS) such as methamphetamines and ecstasy is reportedly increasing. The actual number of users is likely much higher, given data is limited and many users are unwilling to enter government treatment programs due to the threat of police harassment or detention in compulsory treatment centres.

2.28 Compulsory treatment centres for people who use drugs, known as ‘06 centres’, have operated in Vietnam since the late 1980s. Drug users in 06 centres are forced to cease using drugs, while voluntary patients are able to access treatment. According to unofficial data, 30,000 drug users were sent to 06 centres from January to April of 2018.

2.29 In-country sources in Vietnam report that drug users typically spend 12 months in 06 centres, though some remain for up to four years for post-treatment management. Limited information is available about the living and working conditions in 06 centres, as no external monitoring is permitted by authorities. In-country sources report, however, that conditions in 06 centres are worse than those in prison. Evidence indicates that compulsory detention of drug users in Vietnam is frequently ineffective, forced labour is used as a form of ‘treatment’, post-release services are limited, and the stigma of being a 06 centre inmate often impedes reintegration into communities in terms of employment and accessing healthcare. In addition to the 06 centres, treatment is also provided through community or home-based programs, including methadone clinics for heroin users in some districts and communes, which require co-payment by the user.

2.30 The 2013 ‘Decision on Drug Rehabilitation Renovation Plan for 2013-2020’ focused on: diversifying drug dependence treatment models; increasing community-based and voluntary treatment centres; and reducing the number of people in compulsory rehabilitation 06 centres. UNODC reported that, as of 2018, there were six remaining compulsory treatment 06 centres in Vietnam; 75 mixed facilities with compulsory and voluntary treatment; 18 facilities offering methadone and voluntary treatment; two shelters and treatment facilities for homeless drug users; and 18 social centres for non-drug purposes.

2.31 Intravenous drug use is the primary source of HIV/AIDS transmission in Vietnam. HIV prevalence is reportedly higher in the northern and south-eastern regions, Hanoi and HCMC. It is concentrated among key populations, including people who inject drugs, gay men and other men who have sex with men, and female sex workers. The level of HIV may be underreported, however, as many people with HIV are unwilling to seek treatment due to stigma and discrimination, both within the community and the medical profession.

2.32 The government introduced a change in 2018 to include antiretroviral therapy under the national health insurance scheme. Previously, HIV patients had been able to access it free under a national program funded by international donors

Catholics

3.32 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. Authorities do not, however, permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytisation.

3.33 Unlike other religions, there are no independent Catholic organisations claiming to represent Vietnamese Catholics. There has, however, been a rise in the number of independent ‘house churches’ in locations where Catholic parishes have faced difficulties in registering with provincial authorities, due in part to inconsistent enforcement of national laws. These parishes are generally in remote areas and/or areas with majority ethnic minority populations, with the most problematic regions reportedly in the Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong Provinces), the Northwest Highlands, and Hoa Binh Province. Human rights observers report that these house churches face constant surveillance by authorities.

3.34 The Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances. In the aftermath of the Formosa environmental disaster of 2016 (see Recent History), Catholic priests in Nghe An and Ha Tinh Provinces were active in organising demonstrations in response to pollution and high volumes of fish deaths, and assisted parishioners to file lawsuits against the government for financial compensation. Catholic priests were also among the most vocal critics of draft laws on cybersecurity and special economic zones in June 2018 (see Political Activists). For example, the Federation of Vietnamese Catholic Mass Media criticised the Cybersecurity Law’s lack of privacy protections and claimed it had reduced online traffic to Catholic websites (see also Media). Authorities responded by arresting several Catholic activists, while others reportedly went into hiding or fled the country.

3.35 Throughout 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, human rights observers reported a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by both plainclothes individuals and members of the Red Flag Association, a highly organised pro-government militant group that has typically worked with or under the direction of local authorities. For example, a violent clash broke out in December 2017, between Catholic parishioners and plainclothes individuals regarding the construction of a new chapel in Vinh Diocese. State media reported that parishioners assaulted police, while social media reported plainclothes individuals assaulted parishioners under local authority directives. Human rights observers reported several other violent incidents involving Red Flag members throughout 2017 and 2018, including other attacks in Nghe An and Dong Nai Provinces. International observers reported that the Red Flag Association self-dissolved in 2018 and is no longer active.

3.36 The Catholic community has also been significantly affected by ongoing incidents of land appropriation and destruction of property in a number of locations, including Hue, HCMC, Da Nang, and Hanoi. In January 2019, for example, HCMC authorities reportedly demolished at least 112 residential properties on land claimed by the Catholic Church.

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.

Political Activists[90]

[90] DFAT Report @ p.25

3.49 The Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration. These rights are restricted, however, by a number of ‘national security’ provisions within the Penal Code, namely: Article 109 (‘overthrowing the State’); Article 117 (‘conducting propaganda against the State’); and Article 331 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’). These provisions take precedence over constitutionally enshrined rights in practice, and are commonly applied to activists. The penalties mandated by the provisions remain unchanged, ranging from prison sentences of between six months and 20 years, to life imprisonment or capital punishment (see Death Penalty). Official approval is required for all public gatherings, and authorities routinely deny permission for meetings or marches considered politically sensitive. Police and other security authorities routinely use excessive force to disperse unauthorised demonstrations (see Police).

3.50 Despite legal restrictions and often-severe responses from authorities, citizens do continue to protest, generally in relation to single issue, livelihood-related issues, or occasionally in relation to anti-Chinese sentiment. Hundreds of residents from the central provinces protested regularly in the months following the 2016 Formosa disaster (see Recent History), with some protesters reportedly beaten and arrested by police. Police also reportedly stopped some protesters from marching from central Nghe An Province to Ha Tin Province to submit their compensation claims. Activists and their families in Nghe An Province reported an increased incidence of harassment and assault by local authorities in relation to the Formosa disaster protests.

3.51 Large-scale protests occurred on an unprecedented scale in June 2018 in a series of demonstrations in major cities. Thousands reportedly demonstrated in HCMC, Hanoi, Nha Trang, Binh Thuan Province, and other areas against a proposed special economic zone, with some also protesting against a new restrictive cyber security law (see Media). Police in HCMC reportedly beat and detained around 180 people at a stadium, including individuals who were not activists, while civil society organisations reported that plainclothes police officers also beat protesters. By November 2018, at least 127 people were reported to have been arrested and convicted for their participation in the protests. Many protesters subsequently released by police claim to have been mistreated, harassed, assaulted, and detained in relation to the protests in HCMC.

3.52 Low-level protests also occur periodically over land use and compulsory official land acquisition, occasionally involving violence. Under both the Constitution and the Land Law (2013), all land in Vietnam is formally owned by the State, which issues land use rights to individuals or organisations but retains the right to acquire it compulsorily at any time. The Housing Law and Real Estate Business Law (2014) stipulates that land can only be acquired by government if considered necessary for socioeconomic development that is in the public or national interest. The definition of ‘socioeconomic development’ is ambiguous, however, leading to numerous disputes over land use rights. In one such incident in April 2017, villagers in the Dong Tam commune on the outskirts of Hanoi reportedly detained 38 police officers for one week during a land dispute. The standoff ended after the Hanoi mayor committed to not filing criminal charges against protesters, and to investigating land management in Dong Tam and allegations of police injuring the village leader during the protests.

3.53 Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include:

-    In February 2018, a prominent advocate for workers’ rights was sentenced to 14 years’ imprisonment in Nghe An Province for 'resisting persons in the performance of their official duties' (Article 330 of the Penal Code) and for crimes committed under Article 331. The activist sentenced had written about the impact of the Formosa disaster, highlighting the effects on local fishermen and assisting them in seeking justice and compensation;

-    In April 2018, an anti-corruption and land rights activist in Thai Binh Province was sentenced to thirteen years’ imprisonment, to be followed by five years’ probation, after being convicted of crimes committed under Article 79 after a trial that lasted only hours. The activist, a member of the Brotherhood for Democracy (see Political Opinion (Actual or imputed)), had published articles denouncing the authorities for corruption and abuses of human rights;

-    In August 2018, a human rights and environmental activist from Central Vietnam was convicted of crimes under Article 79 and sentenced to 20 years in prison and 5 years’ house arrest, the longest sentence recorded in years for national security crimes. The activist had joined campaigns in support of prisoners of conscience, had used social media to share information about human rights violations, and had campaigned for compensating fishermen affected by the Formosa disaster. During his trial, state media highlighted his affiliation with the Viet Tan organisation (see Political Opinion (Actual or imputed)). The sentence handed down was three years longer than that requested by the prosecutor, with the court adding more time to the sentence because the activist remained silent during his trial and did not admit any crimes.

-    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.

-    In November 2019, a prominent activist was taken into custody upon their arrival at Hanoi International Airport, and was released after eight hours of questioning. The activist had left Vietnam in May 2016 to work for a Vietnamese civil society organisation, which campaigns for human rights in Vietnam from abroad.

3.54 In a number of cases, authorities have released activists from prison and forcibly deported them from Vietnam. In May 2017, for example, authorities revoked the citizenship of a Viet Tan member and forcibly deported him to France. In June 2018, a Brotherhood for Democracy leader and his assistant were released from prison in Vietnam and deported to Germany, after having been sentenced in April 2018 to 15 and 9 years’ imprisonment respectively. Conversely, human rights observers report that in other cases authorities have confiscated the passports of activists in order to prevent them from travelling abroad, or have imposed restrictions on their domestic travel within Vietnam. Authorities have also subjected prominent activists to house arrest at sensitive times, including during state visits by foreign leaders. In July 2017, Germany publicly accused Vietnam of abducting an asylum-seeking senior Vietnamese official from Germany and forcibly returning him to Vietnam, after he had fled in 2016 amid accusations of economic mismanagement and had been dismissed from Vietnam’s National Assembly. He was later sentenced to life imprisonment.

3.55 Human rights observers report that lawyers who represent political activists often face harassment from authorities to drop cases. Those who do not do so reportedly face restrictions on their ability to practise, which in some cases can lead to disbarring, arrests and detention. Many lawyers are therefore reluctant to accept these cases.

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.

Conditions for Returnees[91]

[91] DFAT Report @ p.43

5.28 Articles 120 and 121 of the Penal Code state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence. Organisers of such movements face imprisonment of between five and 15 years, and those found to have committed particularly serious crimes can be imprisoned for 12 to 20 years, or life. Individual travellers face imprisonment of between three and 12 years, or between 12 and 20 years in serious cases.

5.29 DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.

5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. According to sources in Vietnam, any returnees with travel document concerns are questioned at interview rooms at airports. DFAT understands that would-be migrants who have employed the services of people smugglers typically only face an administrative fine, including in cases of multiple illegal departures.

5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours, and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.

5.32 International human rights observers have reported several recent cases in which failed asylum seekers have been detained upon return to Vietnam from neighbouring states. Human Rights Watch reported that in April 2017, a Montagnard who had sought protection in Cambodia was detained for 12 days and interrogated upon return to Vietnam. The US Department of State reported in 2018 that ethnic and religious minorities, including Hmong and Montagnards, who had fled to Cambodia or Thailand, had claimed that Vietnamese authorities had initially pressured them to return by threatening their remaining family in Vietnam, and then abused, detained, or questioned them upon their return.

5.33 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see Security Situation). Anecdotally, indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh Provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.

5.34 A number of formal programs support the reintegration of returnees, including with the support of foreign governments. The International Organization for Migration provides financial assistance for education or income-generating activities or in-kind goods. The Reintegration Network is a non-funded, voluntary alliance of local and international organisations and UN agencies that specifically supports the return and reintegration of women and children, including through improving the coordination of referrals and reintegration assistance provided to returnees.

5.35 DFAT assesses that the government typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves. Such individuals are unlikely to be subjected to the penalties allowed in the law for illegally departing Vietnam. DFAT assesses that long-term detention, investigation, and arrest is generally conducted only in relation to those suspected of involvement in organising people-smuggling operations.

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.

…

onlinelibrary.wiley.com/doi/full/10.1111/pcn.12676