2011560 (Refugee)

2011560 (Refugee) [2022] AATA 3922 (27 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  2011560
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Wayne Pennell
DATE:27 September 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 September 2022 at 1:35pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – monitored, warned and summoned for questioning by police – ex-army father a person of interest to authorities – sister granted protection visa – vague claims and no supporting evidence or documentation provided – no harm – previous travel and re-issued passport – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (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 09/07/2020.
The applicant who claims to be a citizen of Vietnam, applied for a protection visa.[2] 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 as outlined in the Act.[5] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there was a real risk he would suffer significant harm and he was not a person in respect of whom Australia has protection obligations as defined in the Act.[6]
[2]The applicant’s application was received by the Department of Home Affairs on 05/01/2020.
[3]The delegate’s refusal was made on 09/07/2020.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a).
[6]Migration Act 1958 (Cth), s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision and accompanying that application was a copy of the delegate’s decision.[7] At a subsequent time, the Tribunal invited the applicant to appear at a review hearing,[8] and advised that he should provide a written submission, along with a statutory declaration setting out all the claims he made and maintained. The applicant was represented in relation to the review, and he declined the invitation to participate in a hearing and consented to the Tribunal making its decision on the information currently before it.[9]
[7]Filed on 13/07/2020.
[8]Invitation extended to the applicant on 30/08/2022. Hearing scheduled for 22/09/2022.
[9]On 13/09/2022.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of the Migration Act 1958 (Cth) (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.[10] 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.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
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.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
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.[14] 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.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] 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’).[17] 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.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
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.[19] 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.[20]
[19]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).
[20]Migration Act 1958 (Cth), s 36(2B).
Country of reference and Applicant’s identity
The Applicant claims to be a citizen of Vietnam and he provided a copy of his passport to authenticate this claim.[21] 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 his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]Issued on 07/03/2019.
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
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.[23]
[23]Migration Act 1958 (Cth), s 36(3).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under section 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE
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 would suffer significant harm or 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).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because 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.
The Tribunal is not required to make the applicant's case for him. It is his responsibility to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[25] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[26]
[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.
When carefully considering this case, in particular the applicant’s application, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed because the Tribunal is not satisfied, on the evidence before it, he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
Applicant’s claims
It is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.[27]
[27]Migration Act 1958 (Cth), s 5AAA.
The applicant’s claims for protection are summarised to the extent that:
·Because of his political opinion, he fears harm from the Vietnamese authorities; although he has never experienced any harm by the Vietnamese authorities, he had received a warning from the police about his political position and was summoned to attend the police station for questioning, but made the decision to depart Vietnam instead;
·His sister escaped Vietnam and settled in Australia and his family is under surveillance, with the authorities monitoring their movements;
·His father is not satisfied with the communist government in Vietnam and has expressed his concerns against the government’s policy;
·The Vietnamese authorities will not provide protection as they are responsible for carrying out the punishments; and
·He is unable to relocate to other parts of Vietnam because of the household registration book and the government controls who lives where and restricts movements.
The Tribunal notes that the delegate provided the applicant ample opportunity to provide all of the details of his protection claims, including all documentation or other evidence to support those claims.[28] When the applicant’s application was listed for hearing, the Tribunal also provided him with the same opportunity to provide any other information or evidence to support his claims.[29] On all occasions the applicant chose not to accept the invitations and no supporting information, documentation or evidence has been provided.
[28]Delegate’s invitation extended to the applicant on 15/01/2020.
[29]Tribunal’s invitation extended to the applicant on 30/08/2022.
The Tribunal is aware of and observes that the applicant had travelled to Australia on three occasions. The first occasion took place in late 2008 where he stayed for three months before departing in late January 2009.
The second occasion was in early August 2018 and he again stayed for three months before departing in early November 2018. The applicant’s third trip to Australia took place on 29 December 2019. It was within a week of his arrival on that occasion that he filed his application for a protection visa, and he has since remained in Australia.
It is also significantly noted and observed by the Tribunal that within the information provided in the applicant’s application is a disclosure that his current passport was issued by the Vietnamese Immigration Office in Ho Chi Minh City on [in] 2019. The issuing of that passport took place approximately four months after he concluded his second visit to Australia, and approximately nine months before he arrived in Australia for the third and final time in December 2019.
The applicant outlined within the claims in his application that his sister escaped Vietnam and since 1988 she has settled in Australia as a refugee from a Malaysian refugee camp. Her arrival in Australia as a refugee was considered by the Vietnamese authorities as her escaping from Vietnam and a betrayal to her country. The Tribunal notes that no evidence, either by way of a statutory declaration, statement or letter from the applicant’s sister was provided to validate the claim that she was an escaped refugee from Vietnam. The details surrounding that claim are vague, weak and tenuous and the Tribunal does not accept this claim and it is rejected.
The applicant went on to explain that there were occasions when the local police authority and secret agents put him under surveillance, including monitoring and following his daily activities. The details, information and evidence surrounding this claim consist of a vague, tenuous and weak statement made within the applicant’s application, and when balanced against the evidence that he was able to enjoy an uninhibited and lawful departure from Vietnam to travel to Australia on more than one occasion, the Tribunal is not inclined to accept this claim and it is rejected.
Applicant’s father a person of interest
Firstly, the applicant claimed that his father previously held the rank of an officer in what was formerly known as the Army of the Republic of Vietnam (ARVN) prior to the fall of South Vietnam in 1975. Since 1975, his father has been dissatisfied with the authoritarian rule of the communist Vietnam government and he has expressed his political opinion against the government policies both within the family, and with his friends at a local Café. The applicant went on to claim that because his father had expressed those opinions about the Vietnamese government’s totalitarianism, its arbitrary detention of innocent people, its suppression of religions and the abuse of human rights, is father had on many occasions been summoned to the local police office. Despite being warned by the police about his political comments, his father never ceased to express his opinions.
In respect to this claim, the Tribunal notes that notwithstanding the invitations extended to the applicant by both the delegate and the Tribunal for him to provide evidence or information to support his claims, he declined to provide any information, evidence or examples, either from his father in Vietnam or his sister who resides in Australia, to support the claim that his father held a rank as an officer in the ARVN, or the claims about his father expressing his political opinions and opposing the Vietnamese government’s policies. The Tribunal finds this claim to be vague, tenuous and weak and the claim is rejected.
Applicant a person of interest
The applicant went onto claim that because of his father’s former position within the ARVN and the opinions he expressed about the communist Vietnamese government, the applicant and his siblings were monitored and followed the same as his father had been. He added that the attention paid to him by the government authorities was especially evident on the occasions when he returned from his trips to Australia. He claimed he was invited for an interrogation by the local police to establish if he had participated in the organisation against the communist Vietnam government during the time he was in Australia. The Tribunal notes that he claims that he was ‘invited’ for interrogation, he does not specifically claim how that invitation was extended to him, or whether he indeed accepted the invitation and participated in being questioned by the authorities.
Similarly, in respect to this claim, the Tribunal notes that notwithstanding the invitations extended to the applicant by both the delegate and the Tribunal for him to provide evidence or information to support his claims, he declined to provide any information, evidence or examples, either from himself, his father or his sister relating to the claim that he and his siblings were monitored and followed by the Vietnamese authorities because of the political views expressed by his father and the position he held in the ARVN.
Further to this, the Tribunal does not accept the claim proffered by the applicant that he was a person of interest to the Vietnamese authorities. Notwithstanding the Tribunal’s observations just expressed, his claim is that he was a person of interest to the Vietnamese authorities and suspected of participating with an anti-Vietnamese government organisation during the time he had spent in Australia. Because of that suspicion, he was invited for interrogation by the Vietnamese authorities. The Tribunal notes that notwithstanding those claims, about three months after he returned to Vietnam from a trip to Australia, the Vietnamese Immigration Office issued him with his current passport, and he lawfully departed Vietnam and travelled to Australia about nine months after the issuing of that passport.

The country information contained within the DFAT report on Vietnam provides that activists, or persons of interests, are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused.[30] Notwithstanding those restrictions, the Vietnamese constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’, in practice, the Government imposes limits on entry and exit for political activists and Government critics through its exit control list (ECL) which controls the movement of people such as persons of interest, criminals and people subject to court orders across its borders, and these people may be prevented from leaving Vietnam.[31] The control of movement of people is also achieved by refusing to issue passports or laying criminal charges to prevent travel and is sometimes used against the families of persons of interest.[32]
[30]The DFAT Country Information Report for Vietnam dated 11/01/2022, pages 18 – 19, paragraph 3.56.
[31]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 32, paragraph 5.26.
[32]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 32, paragraph 5.25.
When the applicant’s application was listed for a hearing[33] and in the process of inviting the applicant to that hearing, the Tribunal communicated with his nominated representative.[34] Subsequently, the applicant’s representative emailed to the Tribunal a completed and signed response to the hearing invitation[35] advising that the applicant did not seek to participate in the hearing but instead consented for the Tribunal to make its decision on the papers. Particularly noted by the Tribunal is the brief handwritten message on the documentation returned to the Tribunal that suggested the applicant was arranging his departure from Australia. The Tribunal sought clarification from the applicant’s representative about this, particularly regarding whether the applicant had departed Australia; or if he intended to depart, when was that to occur; and does the applicant intent to return to Vietnam.
[33]Hearing listed on 22/09/2022.
[34]On 30/08/2022.
[35]Email received by the Tribunal on 13/09/2022. The response to the hearing invitation was signed by the applicant on 12/09/2022.
The Tribunal did not receive a response to those queries from either the applicant or his representative, and the Tribunal accepts that the initial information within the response to the invitation to a hearing shows that the applicant was arranging for his departure from Australia. When that information is assessed against the travel history of the applicant, along with the applicant’s comments in his application about the previous trips to Australia, it is the Tribunal’s view that it is highly likely that the applicant will return to Vietnam.
When carefully considering the information provided by the applicant to substantiate his claims, the Tribunal is of the view that he has not provided any evidence, information or examples which supports his proposition that he has a well-founded fear that if he returned to Vietnam he will be persecuted because he is a person of interest. The country information within the DFAT report provides that although the Vietnamese authorities may occasionally question returnees from Australia upon their arrival in Vietnam, this interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. The DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[36]
[36]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 33, paragraph 5.31.
The applicant advocates that he was invited for interrogation because the Vietnamese authorities wanted to know if he had associated himself with any organisation opposed to the communist Vietnamese government, and his fear is that this will occur again. The Tribunal also notes that he disclosed within his application that he has not personally experienced any harm, or had any harm caused to him by the Vietnamese authorities.[37] Having assessed that information, and when balanced against the country information within the DFAT report, the Tribunal finds that firstly, the applicant has not advocated that he did in fact form any such association with any organisation within Australia, and secondly the country information within the DFAT report provides that although the Vietnamese authorities may occasionally question returnees from Australia upon their arrival in Vietnam, this interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. The DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[38] In respect to the applicant’s application for protection within Australia, and how that may be perceived by the Vietnamese authorities, the country information within the DFAT report provides that being a failed asylum seeker is not generally stigmatised and the DFAT is not aware of cases of returnees being denied citizenship.[39]
[37]Applicant’s application filed with the Department on 05/01/2020, page 25.
[38]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 33, paragraph 5.31.
[39]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 33, paragraph 5.34.
The Tribunal also notes that the applicant claims that because he believed that he would be arrested, and possibly tortured and detained if he returned to Vietnam, he had to leave his wife and two children behind in Vietnam when he travelled to Australia until the political situation in Vietnam changed which provided better freedom for the Vietnamese people. The Tribunal finds this claim to be vague, tenuous and weak and it is rejected as it is noted by the Tribunal that the applicant has previously travelled to Australia without his wife and family, the latest occasion being August 2018 which was about 15 months prior to his last visit.
Having carefully considered the applicant’s claim in regard to him being a person of interest, along with assessing all the information provided by the applicant and the country information within the DFAT report, the Tribunal finds that the evidence in this matter does not support the applicant’s hypothesis that he possesses a public political profile within Vietnam or that he is a person of interest to the Vietnamese authorities and his claim is rejected.
Internal relocation
A further claim made by the applicant is that he is unable to be protected within Vietnam and is unable to relocate for his own protection. He advocates that because Vietnam is under the authoritarian rule of the communist Vietnamese government and there is no agency or any individual who would dare to help him because the Vietnamese authorities would also punish them. He has not attempted to relocate to another part of Vietnam to seek safety because the Vietnamese government uses the household registration book to strictly control the movement of its citizens. He added that because the local police want to keep people such as him and his family under control, he is not allowed to move out of the current residential area.
The Tribunal does not accept this claim and finds the claim to be vague, weak and tenuous. The country information contained within the DFAT report provides that although the police within Vietnam closely watch over relocation and citizens staying even one night away from their homes must register with local police, internal relocation is common. There is a requirement for residents’ homes to be registered with a document known as a hộ khẩu, or household registration book, however in practice, the police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation and the DFAT is not aware of other cases where registration is refused; such refusal is unlikely.[40]
[40]The DFAT Country Information Report for Vietnam dated 11/01/2022, page 31, paragraphs 5.18 to 5.19.
Having carefully assessed the applicant’s claim on this point, the Tribunal finds that his argument is vague, weak and tenuous and the claim is rejected.
Refugee findings
The Tribunal has carefully considered the applicant’s claims that he has a well-founded fear that if he returned to Vietnam, he will be persecuted. He claims that the police monitor and follow him because of the position his father held with the former ARVN, and his father expresses an opinion which opposes the communist Vietnamese government. He claimed that on an occasion when he arrived back from a trip to visit his sister in Australia, the police invited him for an interrogation, although he does not suggest that any interrogation took place.
The Tribunal has also carefully considered his claims that he would not be protected within Vietnam as he cannot relocate to another locality in Vietnam because of the household registration book. For completeness, the Tribunal has also carefully considered the applicant’s claim that because the local police monitor his daily activities, if he was to return to Vietnam, the police would interrogate him about his activities in Australia, possibly leading to him being tortured and detained.
Earlier in these reasons the Tribunal has outlined its findings and rejected each of the claims made by the applicant. Having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s application to support his case, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm at the hands of the Vietnamese government or the police authorities because of any the alleged claims.
The Tribunal also finds that based on the facts, features and circumstances of the applicant’s case, he does not have the public profile of a person of interest within Vietnam; and nor has he acted in opposition to the Vietnamese government. It is also the Tribunal’s findings that upon his return to Vietnam, the applicant is not likely to be persecuted or imprisoned for any of the claims he made; and he does not face a real chance of serious harm because of his departure from Vietnam and having sought protection within Australia.
Complementary protection considerations
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.
Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[41] the Tribunal has considered the alternative criterion.[42] 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 the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm as it is defined in the Act.[43]
[41]Migration Act 1958 (Cth), s 36(2)(a).
[42]Migration Act 1958 (Cth), s 36(2)(aa).
[43]Migration Act 1958 (Cth), s 36(2A).
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 will suffer significant harm for any of the reasons he claimed if he returns 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.[44]
[44]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The Tribunal notes the applicant claims that because of the position his father allegedly held as an officer in the former ARVN, he was a person or interest to the Vietnamese authorities and was monitored, followed and invited for interrogation after he arrived back in Vietnam after visiting his sister in Australia. The police suspected that he was associating with organisations in Australia that opposed the communist Vietnamese government. Because of those elements, he was subjected to the household registration book; and he fears harm as a returnee and failed asylum seeker.
Earlier in these reasons, the Tribunal indicated that the applicant’s claims that he possesses a well-founded fear of persecution by the Vietnamese authorities have been rejected. The Tribunal does not accept that he will be arrested, detained and interrogated as he claims, and nor does the Tribunal accept that he faces a real risk of significant harm in Vietnam for reasons of his political views or for the other reasons he claims he will be persecuted.
The Tribunal has considered the applicant’s return to Vietnam and notes the information contained within the DFAT report provides that being a failed asylum seeker in Vietnam is not generally stigmatised and there is no known case of returnees being denied citizenship.[45] The DFAT report further provides that it is only occasionally the Vietnamese authorities question returnees from Australia upon their arrival back in Vietnam. That interview process generally takes about two hours and only focuses on obtaining information about whether the applicant had engaged in any illegal activity.[46]
[45]The DFAT Country Information Report, Vietnam dated 11/01/2022 at paragraph 5.34.
[46]The DFAT Country Information Report, Vietnam dated 11/01/2022 at paragraph 5.31.
When applying the above considerations in respect to the applicant’s case and the material he relies upon, the Tribunal does not accept the evidence supports any hypotheses of him facing any real risk of significant harm for reasons of her return to Vietnam as a failed asylum seeker.
Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returns 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
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant 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
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
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.
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.
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…
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.
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[2022] AATA 3922

27 September 2022

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