2010862 (Refugee)

[2023] AATA 2000

2010862 (Refugee) [2023] AATA 2000 (15 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)

CASE NUMBER:  2010862

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:15 March 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 15 March 2023 at 3:08pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – South Vietnamese Catholic – compulsory military service – grandfather’s military service during the Vietnam War – actual or imputed anti-government political opinion – religion – Catholicism – incompatibility with Marxist doctrines – difficulty in attaining education and employment – adverse inference – delay in seeking protection – voluntary returns to Vietnam – late claim not raised earlier – de facto relationship with an Australian citizen – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision was provided to the applicant on 30 June 2020.

2. The applicant who claims to be a citizen of Vietnam applied for a protection visa.[2]  The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there was a real risk he would suffer significant harm.  The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations.[5] 

   [2]The applicant’s application was received by the Department of Home Affairs on 18 March 2019.

   [3]The delegate’s refusal was made on 30 June 2020.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant was represented in relation to the review, and he filed an application with the Tribunal for a review of the delegate’s decision.[6]  Accompanying that application was a copy of the delegate’s decision.  At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone.[7] 

   [6]The applicant’s review application was filed with the Tribunal on 30 June 2020.

   [7]The Tribunal advised the applicant on 19 December 2022.

4. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[8]The applicant subsequently advised the Tribunal that he would appear at the review hearing to give oral evidence and present arguments. 

   [8]The Tribunal’s review hearing was listed for 7 February 2023.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9]  That is, the applicant 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.

   [9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]

   [10]Migration Act1958 (Cth), s 36(2)(a).

7. 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.[11]  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.[12]

   [11]Migration Act1958 (Cth), s 5H(1)(a).

   [12]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that 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, and 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.[13] 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 the Act, which are extracted in the attachment to this decision.[14]

   [13]Migration Act 1958 (Cth), s 5J(1).

   [14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[16] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[17]

   [15]Migration Act 1958 (Cth), s 36(2)(a).

   [16]Migration Act 1958 (Cth), s 36(2)(aa).

   [17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]

    [18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

11. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]

    [19]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

12. The applicant claims to be a citizen of Vietnam and he provided a copy of his passport to authenticate this claim.[20]  The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[21]

    [20]Applicant’s passport issued by the Vietnamese Consulate [in] 2019.

    [21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[22]

    [22]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No. 84 made under the Act,[23] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [23]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE

15. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[24]

    [24]Migration Act 1958 (Cth), s 36(2).

16. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed.  Similarly, because the applicant claims he faces 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.

17. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[25]  Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[26]

    APPLICANT’S BACKGROUND AND CLAIMS

    [25]Migration Act 1958 (Cth), s 5AAA.

    [26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    Background

18. The applicant was born in Binh Duong in the Socialist Republic of Vietnam on [date].  At present, he is aged [age].  He claims to be a citizen of Vietnam and acknowledges that he does not have a right to citizenship or a right to reside in any other country.  He suggests that he is a Catholic Christian and although he describes his ethnicity as Vietnamese, he claimed that the Vietnamese authorities describe him and his family as being South Vietnamese.

19. In describing his arrival in Australia, the applicant outlined that he arrived in Australia in 2009 after being granted a student visa.  While studying in Australia he graduated from High School in 2012, completed a Diploma in [Subject 1] from TAFE in 2014, completed a TAFE Certificate 3 in [Subject 2] in 2014 and completed a Diploma in [Subject 3] in 2017. 

20. For a period of about three years, the applicant was employed as a [Occupation 1] in Sydney before finding employment in [Business 1] at [Town 1].  He relocated to [Town 1] [in] September 2018 and at that time was subject to a vocational and training visa.[27]  About a month after arriving in [Town 1], he applied for a subclass 407 training visa.  He was then issued with a bridging visa.  The Department subsequently rejected the nomination for the training visa and his application was refused (‘training visa decision’). 

    [27]The vocational and training visa granted on 3 February 2015 and expired on 7 November 2018.

21. Regarding the Department’s training visa decision, the applicant claimed that he had been misled by his previous migration agent to believe that a review application had been lodged with the Tribunal prior to the expiry of the relevant deadline.  When he later consulted with his current migration agent, he discovered that no appeal had been lodged in respect to the training visa decision.  Although his current agent subsequently filed an appeal with the Tribunal, that application was rejected by the Tribunal because it had been lodged out of time.[28] 

    [28]On 4 April 2019.

22. During the Tribunal’s process of reaching a determination about the training visa decision, the applicant lodged with the Department an application for a protection visa.  The lodgement of that application took place on 19 March 2019, which was about two weeks prior to the Tribunal finalising proceedings relating to the training visa application.   

23. The applicant described his current status in Australia as being the subject to a bridging visa granted to him on 29 October 2018.  For the past two years, he has been in a relationship with his partner and has relocated from [Town 1] to [City 1] and has found employed in a [business].  His partner is an Australian citizen, and they plan to marry at the end of 2023.  In respect to his former employment in [Town 1], he commenced a fair work court action against his former employer.  He said that his former employer significantly underpaid him during the time he worked for [Business 1].    

    Claims

24. In describing his reasons for leaving Vietnam, the applicant claimed that when he began studying at university, he experienced discrimination as a South Vietnamese Catholic.  He also said that his religious faith is incompatible with the Marxist doctrines of the Vietnamese regime, and if he returned to Vietnam he would be forced to study and accept those doctrines in order to gain a university certificate.  Without a university certificate, he would have a bleak future because he could not have a professional career.  He also claimed that because his late maternal grandfather’s service in the South Vietnamese Army during the Vietnam War, he would also not be able to find employment with any Vietnamese government agency or with any Vietnamese company.

25. The applicant claimed that because military service is compulsory for all males in Vietnam, he feared persecution if he returned to Vietnam because he would be mandatory conscripted into  military service.  That persecution would occur because he is a South Vietnamese Catholic and based on his grandfather's military history, he would be poorly treated during that military service.  He claimed that he would be given assignments more dangerous than those given to other soldiers, with those assignments likely to include bomb disposal and other dangerous tasks for which he may not be adequately trained. 

26. The applicant also claimed that if he was required to enter into the compulsory military service he would have to accept the Marxist doctrine and renounce his Catholic faith.  If he did not do that, he claims that he would be subjected to physical punishment and would  likely be sent to a re-education camp which were notorious for their harsh punishments.

27. When explaining why the Vietnamese authorities cannot or will not protect him from harm if he returned to Vietnam, or why he could not relocate to another area of Vietnam for protection, the applicant claimed that there is a record of mistreatment Catholic Christians by the government throughout Vietnam.  If he did return, he would be required to participate in compulsory military service during which his grandfather's military history combined with my Catholic faith would be used as justification for persecution.  He does not believe the Vietnamese government would protect or support him because it would be the Vietnamese government who would be persecuting him.  He said that relocation to another part of Vietnam would not reduce the risk of persecution because the military are present throughout Vietnam.

28. The Tribunal recognises that when the applicant made his application for a protection visa, the actual application outlined to him that he should provide all of the details of his protection claims.  Further to that, the Department invited him to provide additional information relating to his claims.  At the time of the primary decision being made by the delegate, the applicant had not provided any additional information. 

29. In summary, the claims outlined in his application were that:

    (a)He would be forced to undertake compulsory military service where he will be persecuted because of his Catholic faith.  If forced to undergo mandatory military training, he would have to renounce his Catholic faith and adopt the Marxist doctrine and philosophies; and being from the South Vietnamese region and his maternal grandfather holding a commissioned rank within the former South Vietnam Army during the Vietnam war;

    (b)Because he is a Catholic, he would be forced to accept the Marxist doctrine and philosophies if he wanted to enrol at university; and he would experience discrimination and mistreatment because of his religion.

    Claim – compulsory military service

30. The applicant said that he feared returning to Vietnam because of the persecution he claimed he would experience as a South Vietnamese Catholic if he had to enter compulsory military service.  He went on to say that military service is compulsory for all males in Vietnam and based on his grandfather's military history, he would be poorly treated during any military service he undertook.  He said that he would be given assignments more dangerous than those given to other soldiers, and he described that those assignments would likely include bomb disposal and other dangerous tasks for which he may not be adequately trained.

31. The applicant went on to claim that upon entering military service, he would be required to accept Marxist doctrine and renounce his Catholic faith.  If he did not renounce his beliefs, he would be subject to physical punishment.  He also feared that he would be likely to be sent to a re-education camp which he said were notorious for their harsh punishments.

32. During the hearing the applicant told the Tribunal that his grandfather, who died in 1987, was a member of the South Vietnamese Army during the Vietnam War.  When asked about his grandfather, and whether he held any important position or rank within the military as a soldier,  the response from the applicant was vague and he appeared uncertain as to any probative information about his grandfather.  His grandfather had died before the applicant was born and all he could identify about him was that he held a very low rank.  After some hesitation, he said that his grandfather was a lieutenant.  The Tribunal does not consider the rank of lieutenant is a low rank and given the hesitancy and uncertainty of the applicant, the Tribunal is not convinced that he was actually aware of what rank his grandfather held. 

33. In regard to his claim that he feared harm being forced to attend military training, he took the opportunity in his post-hearing submissions to draw the Tribunal’s attention to the DFAT Country Information Report on Vietnam, in particular where the report provides:

    Vietnam enforces compulsory military service. Men aged between 18 and 25 must complete two years of military service while women can volunteer. Some people attempt to avoid this service, including by paying bribes. If avoidance is detected and prosecuted, they may face a fine or prison term, especially for repeat offenders. Desertion is a criminal offence that can carry penalties including community service or up to 12 years’ prison, the latter only applying to serious offences such as desertion in war time or leaking Government secrets.[29]

    [29]DFAT Country Information Report, Vietnam, 22 January 2022, Page 26, Paragraph 3.110.

1. When assessing that information. the compulsory military training applies to those Vietnamese men aged between 18 and 25 and they must complete two years of military training.  The applicant is aged [age] and does not fall within that age bracket.  In contrast to the mandatory training, the information goes on to outline that if avoidance is detected, that person may face a fine or a prison term.  It is not clear from the country information whether a person who has been out of the Vietnam from all of his adult life would fall into that mandatory category as outlined in the information.  However, the Tribunal is satisfied that it is speculative of the applicant to consider that he will be forced to undergo military training and his claim is rejected.

2. As the High Court has determined in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, mere speculation cannot establish a well-founded fear.  A fear of persecution is not well founded if it is merely assumed or of it is mere speculation.  The High Court went on to find:

   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.[30]

   [30]     MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.

3. Further to this, Part IV of the Constitution of the Socialist Republic of Vietnam (‘the constitution’) provides an explanation with regard to the law on military Service and the enlistment and demobilisation in peacetime of military personnel:

   Citizens turning to 18 years old shall be conscripted into the army. Age subject to conscription is from 18 to under 26 years old. A citizen who enters university or college and postpones the conscription shall be subject to conscription until he/she turns to 28 years old.[31]    

   [31]Law on Military Service (2016)', Socialist Republic of Vietnam, 19 June 2015, Article 30,

4. When carefully assessing the age and circumstances of the applicant, along with weighing the credible country information against those features, the Tribunal does not accept that if the applicant returns to Vietnam he will be conscripted into the Vietnam military and be required to undergo mandatory military service for the reasons he claimed. 

5. During the review hearing, the applicant referred to a case reported on the internet about a young Vietnamese soldier who the applicant claimed had been killed by other fellow Vietnamese soldiers. 

6. Identified within the applicant’s post-hearing submissions were references to various online news articles which reported on the death of that young soldier.[32]   The applicant relies upon this information as support for his claim that if returned to Vietnam and conscripted into the army, he was at risk of suffering serious harm in the military because he was a South Vietnamese Catholic. 

   [32]Applicant’s post hearing submissions, attachments 1 – 3.

7. He said the death of the young soldier was suspicious and it was suspected that he had been beaten by fellow Vietnamese soldiers.  He went on to suggest that the online news articles supported his claim, and this was evidence that bullying, harassment, intimidation and violence occurs within the military and is tolerated by the Vietnamese military.  Because he was a South Vietnamese Catholic, he was at risk of suffering serious harm in the military.

8. The Tribunal’s assessment of the online news articles was that it was reported on 28 June 2021 that a 19 year old army officer attached to the military training school in the Thai Nguyen Province suicided.  He was found hanging from a tree about 50 metres from the military training  centre.  About 1:45pm on the day of his death, the deceased soldier complained of a stomach ache and asked to go to the toilet.  He was later found hanging from the tree and rushed to the local hospital, but he died about 3:30pm.  His cause of death was identified as suicide. 

9. The article reported that the father of the deceased soldier claimed to have found injuries to the deceased’s face, back and chest.  His father speculated that his son may have been beaten to death. 

10. The news articles further reported that four agencies participated in the investigation into the death of the young soldier, including the Criminal Investigation Division of Military Region, the Criminal Investigation Department of the Ministry of Defense, the Thai Nguyen police, and the Military Institute of Forensic Medicine.

11. A number of notable observations were made by the Tribunal about the information contained within those online news articles.  Firstly, one of the articles reported that the father of the deceased told reporters from the local television station that earlier that year, the deceased soldier volunteered to join the military.  After three months training in Bac Giang, he was sent to the training school.  In contrast, another article reported that the deceased soldier was found dead while undergoing compulsory military training. 

12. It is not clear from the news reports whether the deceased voluntarily joined the military, or he was undergoing compulsory training.  The evidence is unclear and ambiguous on this point, and it is not the role of the Tribunal speculate otherwise, and in the absence of other corroborative or probative evidence, the applicant’s claim the young soldier was conscripted into the military is not accepted.         

13. Secondly, the Tribunal finds no evidence within the articles to support the applicant’s claim that the deceased soldier was subjected to bullying, harassment, intimidation and violence, and nor was there any evidence to support any suspicion of the deceased soldier being beaten by his fellow Vietnamese soldiers.  The online news articles do not support that hypothesis and the Tribunal rejects this claim. 

14. The Tribunal has given careful consideration to the report of the deceased soldier’s father claiming to have seen injuries to his son’s body, and it was not reported in the online articles what type of injuries were seen, or the nature of the injuries, or whether the injuries were minor or severe.  There is nothing within the online articles to suggest whether the injuries were received by the deceased in reasonably close proximity to the time to his death, or those injuries were in any way dated.  The Tribunal notes that soldiers by the very nature of them attending military training do engage in the robust physical nature of their occupation and the military training they undergo.  Soldiers do suffer injuries. 

15. When carefully weighing up all of those features addressed above, including carefully assessing country information and the applicant’s claims, the Tribunal finds that the evidence does not support the applicant’s claim that he would be mandatorily required to undergo military training, and nor does the evidence he relies upon support his claim that if he did undergo the training, he will suffer serious harm in the military because he is a Catholic and his claims are rejected.    

    Claims – required to adopt Marxist doctrines and philosophies – Catholic religion 

16. The applicant claims that if he was to return to Vietnam, he intends to enrol in a university to enhance his prospects to gaining meaningful and worthwhile employment.  He said that because he is a Catholic Christian, he would experience discrimination when he commenced any studies at university .  His faith is incompatible with the Marxist doctrines he would be forced to study at university. 

17. He went on to claim that this would prevent him from completing his university studies and without a university certificate, he faced a bleak future in attaining a professional career and he would not get employed by the government or by any Vietnamese companies because of his grandfather’s previous military service.   

18. In respect to his claim that he is a Catholic Christian, he provided to the Tribunal: 

    (a)A photograph purported to be the applicant’s baptism certificate; 

    (b)A Microsoft word document consisting of 12 photographs which had been copied and then pasted into that document; and      

    (c)A Microsoft word document consisting of seven photographs which had been copied and pasted into the document.

19. Those documents and photograph described above were provided to the Department by the applicant soon after he had lodged his application for a protection visa.

20. In regard to the photographs described in paragraph 52(a) above,  The description provided in the electronic name of the file containing the photograph is 2019-03-22_baptism certificate.  It is a JPEG file, or more commonly known as a photograph.  The Tribunal notes that no reference was made to this photograph or the image of the baptism certificate by the applicant or his representative in any of the material he filed, including his statement of claims, his pre-hearing submissions or his post hearing submissions.  The Tribunal also observes that the certificate is in a language other than English, and no certified translated version or copy was provided to the Tribunal.  The Tribunal considers that because the document cannot be read, no weight should be given as to any probative value to the applicant’s claims.

21. In assessing the copied and pasted photographs into the Microsoft document referred to in paragraph 52(b) above, the initial observation is that the photographs contained within the document were copied from the original photographs and pasted into various pages of the Microsoft word document.  The original photographs were not made available to the Tribunal. 

22. Within the document, and below each image was a brief description of what the image showed.  The description given for the first 10 images related to the applicant’s christening, his attendance at church services in Vietnam, religious artefacts at his family home in Vietnam and the marriage of his parents. 

23. The eleventh image purports to be inside a church or other religious type building.  No other identifying features accompany the image such as a date stamp or a description of which church, or at what locality the church was located.  It is described by the applicant as:

    Does not matter where I go, I still attend the Mass every Sunday Evening.  This photo took (sic) at Sunday 30/04/2017. 

24. The twelfth image purports to be the applicant and another person standing outside a church.  No date stamp is shown on the photograph.  The description given by the applicant was:

    Me and my younger brother at [Church 1] (Ho Chi Minh City) at (sic) 29/07/2018. 

25. In regard to the seven images copied and pasted into a Microsoft document as described above in paragraph 52(c), similar to the images as described within paragraph 52(b), the original photographs were not made available to the Tribunal and the images contain no date stamp.  Notwithstanding that, shown in one of the images is a Parish Bulletin from [Parish 1] dated 10 February 2019.  There is another image carrying a date, that is the image of the [Parish 1] Primary School Newsletter dated 6 March 2019.  No explanation has been provided as to the relevance of those images to the applicant’s application and claims.

26. The remaining five images within the document described in paragraph 52(c) show the applicant standing outside the [Parish 1 church].  There are also other associated images for that locality.  No specific explanation of the relevance of those images to the applicant’s circumstances or claims has been provided, although the Tribunal does accept that the purpose is to show that the applicant has an association with Catholicism.           

27. Notwithstanding the applicant’s assertion that he attends church mass every Sunday, the Tribunal observes that there is no other independent evidence from another member of the church congregation, parish priest or any other person associated with the Catholic church who has provided evidence, either in statement form or otherwise, to corroborate the applicant’s claims that he attends Mass every Sunday.  It is the Tribunal’s view that if he was a weekly attendee at mass, he would have been well acquainted with his parish priest, or some other church elder.  Nevertheless, the Tribunal accepts that his religion is Catholic. However, it does not accept that that he has an intimate and significant connection to the practising of his religion as he claims.           

28. The applicant claimed that because he was a Catholic Christian, he would also experience systemic discrimination threatening his capacity to subsist.  He went on to claim that he would experience extreme difficulty in seeking to attain an education and employment, and:

    I left Vietnam because of the discrimination I would experience as a South Vietnamese Catholic when I began studying at University. My faith is incompatible with the Marxist doctrines I would be forced to study and accept in order to gain a university certificate. Without a university certificate, I would have a bleak future because I could not have a professional career.[33]    

    [33]Applicant’s statement of claims, paragraph 11 which was lodged with his application for a protection visa.

29. The Tribunal notes that the applicant left Vietnam in 2009 when he was aged [age].  He was granted a student visa, and did undertake some studies in Australia.  In respect to his claim that he would experience extreme difficulty in seeking to attain an education and employment and that would threaten his capacity to subsist, he said that he needed a university education to find meaningful employment, but this came at a cost because he would be forced to adopt the Marxist philosophies.  The Tribunal does not accept that claim. 

30. The Tribunal is aware of country information which recently reported that although Marxism and the history of the Vietnamese Communist Party are compulsory subjects at the school and university level, this creates a negative predisposition amongst students and professors who see it as boring and disconnected from real life.  The students and university professors consider Marxism as a very outdated method of teaching. 

31. The report went on to outline that despite the communist Vietnamese government encouraging free admission and priority in government jobs, the number of Marxism studies in Vietnamese universities has dropped.  While careers related to business, tourism and communication are increasingly attracting more students from across Vietnam, Marxism studies, which is a key part of the Philosophy module, was not popular among Vietnam’s materialistic youth who are moving farther and farther away from the teachings of Marx, Lenin and national hero Ho Chi Minh.[34]

    [34]Marxism studies of no interest to students in Communist Vietnam, The San Diego Union-Tribune, 7 March 2016, >

    In a further report, it was outlined that getting a good job, rather than the nuances of a discredited political and economic ideology of countering capitalism, is the primary concern of most young Vietnamese and their families.  Many employers, among them multinationals looking to staff factories or service industries, complain about the quality of graduates that Vietnamese universities are producing. Market forces are working against university degrees in Marx, Lenin and Ho Chi Minh in Vietnam, where the Communist government has resorted to offering free tuition to attract students, but students were shunning such degrees because employers were not interested in it.[35]

    [35]Vietnam offers free degrees in Marxism, >

    When carefully considering the applicant’s claim, and applying the country information as referred to above, the Tribunal does not accept that because he claims to be a Catholic Christian that his religion will have any adverse impact upon him studying or finding employment in Vietnam. 

32. In respect to the applicant’s claim that he will experience discrimination because he is a Catholic Christian, the Tribunal had to its availability credible country information within a DFAT report on Vietnam which outlined that

    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.[36]  

    [36]The DFAT Country Information Report, Vietnam, 11 January 2022, page 14, paragraphs 3.22. 

33. The DFAT report goes on to prescribe that:

    In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination.

    DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.[37]

    [37]The DFAT Country Information Report, Vietnam, 11 January 2022, page 15, paragraphs 3.30 – 3.31. 

34. The Tribunal observes that the applicant has been living in Australia since 2009, which is a period of almost 14 years.  During that time, he has returned to Vietnam on 16 occasions.  He has not reported any difficulties in entering Vietnam because of his religion.  The applicant does not profess in any way that he is a religious activist or that at any time that he has been in Vietnam he was a person of interest to the authorities because of his religion. 

35. When assessing the country information as outlined above, and applying that information to the careful analysis of the claims made by the applicant, the Tribunal finds that the risk to the applicant in Vietnam because he is a Catholic can be categorised as a low risk.  In that regard, the Tribunal does not accept his claim that he is at risk of harm because he is a Catholic and his claim is rejected.   

    Delay in making application

36. In assessing the merits of the applicant’s application, the Tribunal is aware that in October 2018, he applied for a training visa.  The nomination for that visa was rejected by the Department.  The applicant says that because of the misgivings of his previous migration agent, no appeal was lodged with respect to the Department’s decision.  Although his current agent subsequently lodged an appeal with the Tribunal, which was rejected because it had been lodged out of time.  The Tribunal makes the observation that during that process, he lodged with the Department an application for a protection visa. 

37. It has been almost 14 years since the applicant first arrived in Australia in July 2009.  He was aged [age] at that time and his entry into Australia when he was granted a higher education (‘student’) visa.  Over the course of that lengthy amount of time, he has resided in Australia he has transitioned to and from Vietnam on 16 separate occasions, with the last occasion being in August 2018.  He has not returned to Vietnam since being granted a bridging visa in October 2018. 

1. When his application for a protection visa was lodged in March 2019, a period of almost 10 years had passed since he first arrived in Australia.  As already identified in these reasons, over that extensive period, there were 16 occasions when he departed Australia and returned to Vietnam, and then lawfully departed Vietnam and travelled back to Australia. 

2. At all times during those occasions, he was a Vietnamese citizen and subjected to the conditions of various visas issued by the Department.  It is noted by the Tribunal that he was able to arrive and depart Vietnam without experiencing any harm or other concerns related to the claims that he made. 

3. For completeness, the details of the occasions that he travelled between Vietnam and Australia are:

DATE	EVENT
13-Jul-2009	Student visa granted.  Visa due to expire on 4 October 2011.
[Jul-2009]	Arrived in Australia.  He was aged [age] at the time of arrival.
[Jan-2010]	Departed Australia.
[Feb-2010]	Arrived in Australia.  He was aged [age] at the time of arrival.
[Apr-2010]	Departed Australia.
[Apr-2010]	Arrived in Australia.
[Jun-2010]	Departed Australia.
[Jul-2010]	Arrived in Australia.
[Jul-2010]	Departed Australia.
[Feb-2011]	Arrived in Australia.  He was aged [age] at the time of arrival.
29-Aug-2011	Bridging visa ‘A’ granted.  Visa due to expire on 4 October 2011.
04-Oct-2011	Bridging visa ‘A’ granted on 29 August 2011 expired.  School visa granted.  This visa was due to expire on 13 March 2013.
[Dec-2011]	Departed Australia.
[Feb-2012]	Arrived in Australia.  He was aged [age] at the time of arrival.
[Nov-2012]	Departed Australia.
[Feb-2013]	Arrived in Australia.  He was aged [age] at the time of arrival.
20-Feb-2013	Bridging visa ‘A’ granted.  This visa was due to expire on 13 March 2013.
13-Mar-2013	Vocational educational and training visa granted.  Visa due to expire on 3 February 2015.
[Jun-2013]	Departed Australia.
[Jun-2013]	Arrived in Australia.
[Dec-2013]	Departed Australia.  Travelled to Vietnam to visit his family.
[Feb-2014]	Arrived in Australia.  He was aged [age] at the time of arrival.
14-Jan-2015	Bridging visa ‘A’ granted.  This visa was due to expire on 3 February 2015.
03-Feb-2015	Bridging visa ‘A’ granted on 3 February 2015 expired.  Vocational educational and training visa granted.  This visa was due to expire on 7 November 2018.
[Feb-2015]	Departed Australia.
[Apr-2015]	Arrived in Australia.  He was aged [age] at the time of arrival.
[Sep-2015]	Departed Australia.
[Oct-2015]	Arrived in Australia.
[Feb-2016]	Departed Australia.
[Feb-2016]	Arrived in Australia.  He was aged [age] at the time of arrival.
[Jan-2017]	Departed Australia.
[Feb-2017]	Arrived in Australia.  He was aged [age] at the time of arrival.
[Sep-2017]	Departed Australia.
[Sep-2017]	Arrived in Australia.
[Dec-2017]	Departed Australia.
[Dec-2017]	Arrived in Australia.
[Feb-2018]	Departed Australia.
[Mar-2018]	Arrived in Australia.
[Jul-2018]	Departed Australia.
[Aug-2018]	Arrived in Australia.  He was aged [age] at the time of arrival.
29-Oct-2018	Bridging visa ‘A’ granted.  This visa was due to expire on 10 May 2019.
18-Mar-2019	Applicant’s protection visa application received by the Department.
04-Apr-2019	Bridging visa ‘C’ granted.  This visa was due to expire on 30 April 2019.
30-Apr-2019	Bridging visa ‘C’ granted.  This visa was due to expire on 21 May 2019.
21-May-2019	Bridging visa ‘C’ granted.  This visa was due to expire on 29 May 2019.
29-May-2019	Bridging visa ‘C’ granted.  The applicant status in Australia is subject to this visa.

1. The applicant’s claims were that if he returned to Vietnam, because of his age, he would be conscripted into the military.  He also claimed that because he was a Catholic, he would experience discrimination and be forced to study Marxism at university.  These are issues he was aware of during the many years that he lived in Australia.  When asked why he did not take the opportunity to apply for a protection visa at an earlier stage, the applicant explained that he already had a visa and was legally in Australia.  He knew that Australia only took a certain number of refugees each year.  Although he understood what a ‘refugee’ was, he said he did not know that the term refugee went with the term ‘protection visa’.  He also told the Tribunal that notwithstanding that he had the assistance of a migration agent when he applied for a training visa in 2018, he did not discuss with the agent anything about him requiring protection. 

2. The Tribunal does not accept that explanation.  The applicant is an educated and intelligent person, and although only aged [age] when he first arrived in Australia, he has matured and transitioned into adulthood in Australia, during which there has been a significant amount of media coverage and reporting of immigration matters issues in Australia.  The Tribunal also notes that he has been issued with a number of visas, including bridging visas in 2011, 2013 and 2015; a school, visa in 2011; and vocational and educational training visas in 2013 and 2015.  There is significant history of his involvement with the Department, and on at least one occasion he engaged a migration agent. 

3. Notwithstanding those issues just identified, the Tribunal recognises and particularly identifies the significant delay or the passage of almost 10 years between the applicant’s initial arrival in Australia to when he made an application for a protection visa.  In regard to that significant delay, guidance can be found in the Court’s determination in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 (‘Subramaniam‘) for how the Tribunal assess that feature of the applicant’s circumstances.  It was determined by the Court in Subramaniam that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution. 

4. Therefore, the significant delay in the applicant seeking a protection visa can support an adverse credibility finding about the applicant’s claims.  It can also solidify a finding that he does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[38]  It was only when the applicant’s application for a visa in respect to his employment was in jeopardy that he made an application for a protection visa, and this is notwithstanding the many occasions that he was issued with the other visas as identified in these reasons.

   [38] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

5. The Tribunal has given careful consideration to both the applicant’s significant delay in applying for protection in Australia and his reasons for that delay.  It is the Tribunal’s findings that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Vietnam.  The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

6. Having regard to the features identified in regard to the exceptional delay between when the applicant arrived in Australia in July 2009 to when he made his application for a protection visa in March 2019, the Tribunal finds that an adverse inference is drawn as to the veracity of his claims in respect to him having a well-founded fear of returning to Vietnam. 

   Claim – grandfather’s military history

7. The applicant claims that during the Vietnam War, his late maternal grandfather was a member of the South Vietnamese Army.  To support this claim, he provided a Microsoft word document consisting of 10 images which had been copied from photographs and then electronically pasted into that Microsoft document.  All of the images, with the exception of one, are written in language other than English.  No certified translation was provided as to an explanation of the contents or words of the images.

8. The only document written in the English language was the document from the United States Office of Personal Management Retirement Programs which was purportedly dated 24 May 2004.  It was not explained by the applicant what significance or relevance this document has to his claim, or what connection it has to his grandfather’s military service during the Vietnam War.

9. In explaining the significant of his grandfather’s military service, the applicant outlined in his statement to support his claims the following passages:

   I would also not be able to be employed by the government or any Vietnamese company because of my maternal grandfather's military service in the South Vietnamese military during the Vietnam War.[39]

   Based upon my grandfather's military history I would be poorly treated during my military service.  I would be given assignments more dangerous than those given to other soldiers.[40]

   I would be required to participate in compulsory military service during which my grandfather's military history combined with my Catholic faith would be used as justification for persecution.[41]

   [39]Applicant’s statement dated 12 March 2019, paragraph 11.

   [40]Applicant’s statement dated 12 March 2019, paragraph 13.

   [41]Applicant’s statement dated 12 March 2019, paragraph 16.

10. Discussed within the credible information contained within the DFAT country information report on Vietnam were people whose relatives were involved in the Vietnam War.  In some cases, asylum seekers may claim that their relatives (often a grandparent) were involved in the Vietnam War, and that involvement was in support of South Vietnam.  Because of that grandparent’s involvement, the asylum seeker faced continuing discrimination.  The DFAT report accepts that some subtle discrimination may exist, for example in educational opportunities, but others have told DFAT this was previously the case but is no longer true.   The alleged discrimination may relate to an inability to join the Communist Party of Vietnam where party members might have access to opportunities through their connections that others do not have.  

11. The DFAT report did not rule out the possibility of discrimination against people who are related to former members of the South Vietnamese Army, however on the balance of available evidence, it was assessed that discrimination against the relatives of people who were involved in the Vietnam War, if it is exists at all, is low level. 

12. The DFAT report went on to provide that the situation would be different for a person who has political opinions that favour a South Vietnamese or pro-American identity, however on the available evidence in the case of the applicant’s case, he does not make any claims that he has expressed any opinions of that nature.[42]

    [42]The DFAT Country Information Report, Vietnam, 11 January 2022, page 26, paragraphs 3.108 – 3.109. 

13. One of his claims is that if he returned to Vietnam, his grandfather’s military service with the South Vietnamese will impact upon him when he conscripted in to the military.  That is, he will be assigned dangerous tasks.  For the reasons already given, the Tribunal has made a finding that if he returned to Vietnam, he will not be conscripted in to the military and does not feel there is a requirement to repeat those findings here. 

14. The Tribunal has given careful consideration to the applicant’s claims in regard to his grandfather’s involvement in the Vietnam would impact upon him and he was at risk of harm if he returned to Vietnam.  When assessing the information and the evidence as discussed, the Tribunal does not accept the evidence supports any hypothesis that because of his grandfather’s military service, there is any likelihood of the applicant experiencing harm.  His claim is not accepted.

    Actual or imputed anti-government political opinion

15. It is observed by the Tribunal that although the applicant does not make any specific claims within his statement of claims lodged with his application to the Department that he had an actual or imputed anti-government political opinion, his representative made reference to this within the pre-hearing submissions filed with the Tribunal.[43]  The comments attributed to this claim were as follows, and accompanying those comments were a number of references to various reports and country information.

    We submit that the Applicant’s actual and imputed anti-government political opinion may result in the Applicant being persecuted upon return to Vietnam. As outlined in the SOC, the Applicant’s Catholic beliefs are incompatible with the Vietnamese Government’s Marxist ideologies. The Applicant may suffer serious harm if he refused to accept the Government’s Marxist doctrines upon enlisting in compulsory military service. We refer to the following paragraphs of the SOC:

    [43]Pre-hearing submissions filed with the Tribunal on 31 January 2023, page 12, paragraph 4.4.

16. The above passage refers to the applicant’s claim that he would be persecuted if he returned to Vietnam and that would occur because of his religious beliefs which were allegedly incompatible with the Vietnamese government’s Marxist ideologies.

17. The claim that the applicant has an actual or political anti-government is not accepted by the Tribunal.  Specifically outlined earlier in these reasons were the Tribunal’s findings with respect to Catholicism within Vietnam, and discussed was the country information within the DFAT report which provided that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In general, the country information provided that Catholics are able to worship freely and receive sacraments.

18. When giving careful consideration to the credible country information, the Tribunal rejects this claim.

    NEW OR FRESH CLAIM

19. During the Tribunal’s hearing, the applicant raised a new claim and said that upon applying for a protection visa, his father was falsely accused of indecently assaulting a female under 16 years of age.  In support of that claim, he provided a number of online news articles which were appropriately certified and translated into English.[44]   

    [44]Applicant’s post-hearing submissions filed with the Tribunal on 15 February 2023, paragraph 2.3 and Attachments 4 – 13.

20. Notwithstanding that the first time that the applicant had raised this claim, when he raised this issue at the Tribunal hearing he accepted that at that time he did not have evidence to support the claims that he was at risk of harm.  It was only later during the filing of post-hearing submissions that he provided the evidence or the material relating to this issue. 

21. Within that material, it was referred to the sentencing proceedings in the People’s Court of [City 2], Province Binh Duong, Vietnam.  The prosecutor outlined to the Court that the applicant’s father worked as the [Occupation 2] of [an employer].  At the same time, he also ran tutorial classes teaching [subject] at his home. 

22. On the morning of [date] November 2018, a year [level] female school student messaged the applicant’s father asking to be tutored for [subject] because she was about to sit for an examination for academically outstanding students.  He agreed and made an appointment for her to come to his house later that day.  The girl described that after she arrived, the applicant’s father conducted what the news article described as ‘licentious behaviour’ towards the girl.  She rejected his conduct, left the house and returned shortly afterwards.  This time she used the video recording device on her phone and recorded the indecent behaviour of applicant’s father where he touched ‘sensitive areas’ on the female student’s body.  The female student later told her parents, who then reported the matter to police. 

23. [In] January 2019, the applicant’s father was charged with the offence referred to in the news article as ‘acting lecherously towards a person under 16 years of age’.  When he later appeared in court for sentencing, the applicant’s father claimed that because he was under the influence of alcohol at the time, he could not hold himself back from those ‘licentious acts’.  In sentencing the applicant’s father, the Court took into account his cooperation and sentenced him to three years imprisonment.[45] 

    [45]Applicant’s post-hearing submissions,

24. The applicant claimed that because his father was wrongly convicted of the offence against the child, the applicant fears that he would be harmed if he returned to Vietnam.  When assessing the reports contained within the news articles, it is clear that the applicant’s father pleaded guilty and accepted responsibility for his offending behaviour.  Although there has been no evidence provided to the Tribunal of the judicial system and sentencing proceedings exercised by Vietnamese courts, the news reports suggest that his father pleaded guilty.  It is difficult for the Tribunal to reconcile that if a person pleads guilty, he was wrongly convicted as suggested by the applicant.

100.   It is noted that the applicant has raised a claim which he did not raise with the delegate; and he has presented evidence which not presented to the delegate prior to the delegate’s decision being made.  The offence is reported to have occurred in November 2018, and his father was charged in January 2019, which was prior to the applicant lodging his application with the Department.  He was later sent an invitation by the Department to provide additional information relating to his claims, and this claim was not disclosed. 

101. The Tribunal accepts that he did not provide that information to the Department. The provisions of section 423A of the Act outline that the Tribunal is to draw an unfavourable inference as to the credibility of the claim or evidence, if the Tribunal is a satisfied the applicant does not have a reasonable excuse why the claim was not raised, or the evidence was not presented earlier. The Tribunal has considered the facts of the claims and accepts that the applicant’s father had been charged, and was convicted upon his own plea of guilty and imprisoned. The Tribunal does not accept that those circumstances give rise to any risk to the applicant should he return to Vietnam and his claim is rejected.

ADDITIONAL MATERIAL PROVIDED WITH THE POST-HEARING SUBMISSIONS

102.   Provided to the Tribunal within the applicant’s post-hearing submissions was a considerable amount of material which the Tribunal considers falls outside the relevance of any consideration with respect to the merits of the review of the decision to refuse the applicant a protection visa.

103.   That material consists of photographs of the applicant and his current partner, travel documents of trips undertaken by the applicant, banks documents, a will and other related and associated documents for what as the Tribunal understands, to assist with the applicant seeks a referral for Ministerial Intervention.  The Tribunal’s considerations on that point are canvassed later in these reasons.

Refugee findings

104.   The Tribunal has given careful consideration to the applicant’s claims specifically outlined throughout these reasons that the foreseeable consequence of him returning to Vietnam is that there is a real risk that he will suffer significant harm in regard to Vietnam’s conscription of young men into the military; the claim because of his religion there was a risk of harm to him if he was conscripted; if he wanted to enrol in university, he would be forced to accept the Marxist doctrine and philosophies; he would experience discrimination because of his religion and his grandfather’s service in the former South Vietnamese Army; his actual or imputed anti-government political opinion because of he was Catholic; and his father’s conviction as a child sex offender.   

105.   When assessing those features just identified, the Tribunal identifies that he has made a very late application for a protection visa, and his application was made almost 10 years after his arrival in Australia, and made only during the latter stages of his previous proceedings in the Tribunal relating the Department refusing his application for a training visa.  When carefully assessing all of those features, the Tribunal finds that an adverse inference should be drawn as to the genuineness of his application, and the Tribunal finds that his explanation why he did not apply for a protection visa at a much earlier time is not a reasonable explanation for the late application.  

106.   In that regard, and along with the findings already outlined in these reasons, the Tribunal finds that the evidence provided by the applicant does not support the hypothesis that a real risk exists whereby if he returned to Vietnam he is not likely to be persecuted for any of the claims he made; and he does not face a real chance of serious harm for any of the reasons he claims.   

107. The Tribunal is of the view that any reasonable assessment based on all the claims raised by the applicant and the evidence he used to support those claims would conclude that there is not a real chance of him being subjected to persecution in Vietnam for any of the reasons provided in section 5J(1)(a) of the Act.

1. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

   Complementary protection considerations

109.   The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm.

110. Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[46] the Tribunal has considered the alternative criterion.[47] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm as it is defined in the Act.[48]

[46]Migration Act 1958 (Cth), s 36(2)(a).

[47]Migration Act 1958 (Cth), s 36(2)(aa).

[48]Migration Act 1958 (Cth), s 36(2A).

111.   Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Vietnam.  Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[49]

[49]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

112.   Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returned to Vietnam now or in the reasonably foreseeable future, he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; nor will he be subjected to degrading treatment or punishment.

Conclusion: refugee criterion

1. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

   Conclusion: complementary protection criterion

114.   Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, he will be exposed to a real risk of suffering significant harm.

Overall conclusion

115. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

1. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

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

   DECISION

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

REQUEST FOR MINISTERIAL INTERVENTION

119. It was the applicant’s position that if the Tribunal decided to affirm the delegate’s decision, there existed an appropriate case for the Tribunal to refer his matter for Ministerial Intervention pursuant to section 417 of the Act.

120.   The applicant outlined to the Tribunal that at present, he is in a defacto relationship with an Australian citizen.  That is a serious and meaningful relationship which has been ongoing for the past two years and he and his partner plan to marry at the end of 2023.  When identifying those features, he submitted that if the strong compassionate circumstances were not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.  He added that given the circumstances of their relationship, if he was removed from Australia and returned to Vietnam, this would result in significant hardship for his partner.  In support of that argument, he provided a significant amount of material which he attached to his post-hearing submissions.[50]

[50]Attachments 20 – 38 of the applicant’s post-hearing submissions.

121.   The applicant went on to explain that since his arrival in almost 14 years ago, he has integrated well into the Australian society, and has been a productive member of the community by maintaining suitable and gainful employment.  He has demonstrated reliable work ethic and proficient English skills which will enable him to continue his career endeavours in Australia.  He says that this is a demonstration of exceptional economic, scientific, cultural or other benefits that would result from him being permitted to remain in Australia

122.   The applicant told the Tribunal that he had applied for a training visa,  which was ultimately rejected by the Department.  He said that he was misled by his previous migration agent to believe that a review application had been lodged with the Tribunal.  It was only after consulting with his current migration agent that he discovered that no review application lodged with the Tribunal.  Although his current migration agent did lodge an application with the Tribunal, it had been filed out of time and dismissed.  It is the Tribunal’s observations that there is no information to suggest that the application has always abided by the conditions of the various visas issued to him.

123.   The applicant has asked that consideration be given to him originally arriving in Australia as a [age] year old child, and over the past almost 14 years he has achieved educational and trade qualifications and has been employed within the community and been a productive and law abiding member of society.

124. Having regard to the applicant’s circumstances, in particular those circumstances as outlined above, and having considered the ministerial guidelines relating to the Minister’s discretionary power under the Act[51] as set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’, the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

[51]Migration Act 1958 (Cth), s 417.

Wayne Pennell
Senior Member

Attachment  -  Extract from Migration Act 1958 (Cth)

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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