2013444 (Refugee)

[2021] AATA 2451

2013444 (Refugee) [2021] AATA 2451 (23 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013444

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Meena Sripathy

DATE:23 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2021 at 1:34pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – ‘receiving country’ – nationality – claimed statelessness – born in the Republic of Vietnam – departed Socialist Republic of Vietnam before its first nationality laws were enacted – subject to compulsory military conscription – political opinion – son of a South Vietnamese soldier – anti-communist and anti-government sentiments – past political activities in Vietnam – role in filtering out communists in a refugee camp – voluntary returns on 10 occasions with no harm – political activities in Australia – departed the country unlawfully – failed asylum seeker – decision under review affirmed

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

CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347

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 review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a stateless, applied for the visa on 5 May 2020. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations under s36(2)(a) or s36(2)(aa) or a member of the same family unit as a person who holds a Protection visa.

3. The issues in this case are:

   ·the ‘receiving country’ to assess his protection claims; ie. his country of nationality (determined solely by the laws of that country) or if he is stateless and has no country of nationality, his country of former habitual residence;

   ·whether there is a real chance, if the applicant returns to his country of nationality, or if stateless, his country of former habitual residence, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion;

   or  if not,

   ·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his country of nationality, or if stateless, his country of former habitual residence, there is a real risk that he will suffer significant harm.

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

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

11. The applicant was born on [date] and is [age] years old.  He was born in Nha Trang, Khanh Hoa, Vietnam. He states his citizenship at birth as South Vietnam (Republic of Vietnam) and current citizenship as ‘stateless’. He is married and has [number] sons and one daughter, and [number] step daughters and [number] step sons, and [number] brothers in Australia. He has a father, [number] sisters and one brother in Vietnam. 

12. The applicant arrived in Australia [in] January 1986 on a Special Humanitarian Program (Vietnamese) [visa]. In 2004 he applied for Australian citizenship but it was unsuccessful as he was incarcerated at the time. 

13. Between 1993 and 2001 the applicant travelled to Vietnam on 10 separate occasions to visit his parents.

14. [In] May 2004 the applicant, together with two of his brothers, was convicted and sentenced in relation to serious criminal offences by the Supreme Court of Queensland relating to the shooting of a man rendering him paraplegic.[1] The applicant was sentenced to 16 years imprisonment and was incarcerated from 2004 [until] April 2016, when he was released on parole. Since his release, the applicant has been held in immigration detention under s189(1) of the Migration Act.

    [1] Copy of Transcript of Proceedings -Sentencing [remarks] provided by the applicant with his protection visa application, is on the Department file 

15. The applicant held a Class BB Subclass 155 Five Year Resident return visa that was cancelled on 18 April 2016 pursuant to s501(3A) of the Migration Act. On 10 October 2017 the Minister decided, under s501CA(4) of the Migration Act not to revoke the cancellation. The applicant appealed this decision to the Federal Court ([case number]) and this matter is ongoing.

    Protection claims

16. The applicant’s protection claims are set out in a Statutory Declaration made by him on 1 April 2020. In summary he made the following claims:

    ·He was born in Vietnam when it was South Vietnam (Republic of Vietnam).  He has no birth certificate and has never held a Vietnamese passport. He has no identity documents in Vietnam and no way of obtaining any.

    ·He has no citizenship of any country and is stateless.

    ·He studied to year 2 or 3 and worked with his father as a [Occupation 1] until he was 16 years of age.

    ·His family lived comfortably before 1975, but after that became very poor. Their food was rationed and there was no freedom of speech.  They lived under an oppressive regime. The communists were cruel to them after the fall of South Vietnam. 

    ·His family was regarded as anti-communist by the authorities because his father was an active soldier for South Vietnam. His father went into hiding after the war but was arrested and forced into concentration re-education camps. He was released only after his feet were amputated due to cancer.

    ·Because of his father’s background they were always investigated by the authorities.

    ·He strongly defied the communists with actions and words, angered by the treatment of his family.

    ·When he was 16 years old, in [year], he joined a secret anti-communist youth group in Vietnam.  He left home so that his parents and siblings would not be involved.

    ·He went to different cities and slept on the street and in train stations.

    ·At the age of 18 he heard the communist government were looking to mandatorily recruit him into the communist defence force and he went into hiding to avoid this. He was considered a traitor.

    ·At the age of 20, in [year], he found passage with a group of activists to escape the country and fled to [Country 1].

    ·In [Country 1] he continued to be an activist. He worked as a [Occupation 2], and in [Occupation 3].

    ·There were communist spies in the camp who were identified and secretly beaten by the genuine refugees. Some returned to Vietnam and he fears being recognised by these spies if he returns to Vietnam permanently.

    ·His [brothers] secretly escaped from Vietnam in 1983 and also came to [Country 1]. They told him their family was isolated and interrogated because of his departure and life became very hard due to monitoring and interrogation. 

    ·He and his brothers arrived by plane to Australia in 1986 as refugees.

    ·He continued his activism against the communists and joined the annual 30 April Quoc Han rallies each year in [City 1] until 2004 (except for a period in 2001-2002 due to bail conditions imposed on him).  He also joined anti-communist rallies and meetings in Victoria organised by the Vietnamese community in Australia from 1986 to 1992.  From 1995 until his imprisonment in 2004 he and his family attended rallies outside the Convention Centre, restaurants and clubs when the Vietnamese government sent their singers and actors to Australia, and attended meetings organised by the Vietnamese community ([Australian State 1] Chapter), the Vietnamese Professionals Society, Vietnamese Students Association [Australian State 1] and Viet Tan (Vietnam Reform Party).  He participated in meetings, and helped set seats and clearing up afterwards, He rallied against the communists and chanted “Da Doa Cong San” (“out with the Communists”)

    ·Due to his anti communist activism the Vietnamese Communist would treat him unfairly if he is deported.

    ·His family in Vietnam shunned him when he joined the anti communist group and since hearing of his potential deportation they fear for their safety and have shunned him.

    ·Regarding his past visits to Vietnam, he took risks and returned because his parents were ill. He laid low and did not get involved in politics because he did not want to harm his family. He changed places every night. Sadly his mother passed away and his father is now critically ill with heart problems, blindness and dementia.

    ·He fears return to Vietnam because he is a political activist and he will continue to be an activist if he returns and will be arrested and tortured.  He is not a Vietnamese citizen because he was born under the old regime and he is concerned for his safety if he is forced back. He fears cruel and inhumane treatment, physical beatings verbal tormenting and denial of medical treatment. He fears being unable to earn an income, being subjected to slave labour and being accused as a traitor. He fears his property would be confiscated, and he will be classified as inferior citizen.

    ·His family members in Australia would be impacted if he is removed form Australia and he would be negatively impacted by being separated from them.

17. In support of his application the applicant provided numerous supporting documents, including the following:

    ·Copies of his first arrival travel document and expired travel documents

    ·Documents relating to his criminal history including National Police Check, transcript of sentencing remarks relating to Indictment [number] of 2003, Supreme Court of Queensland, [decision record], letter from Parole Board date [in] January 2016, 3X reports of [Mr A], Psychologist

    ·Letter dated 14 May 2016 from [Dr B], [office bearer of] Vietnamese Community in Australia [State 1] Chapter

    ·Letter dated 17 May 2016 from [Mr C], member Viet Tan (Vietnam Reform Party) Qld Chapter

    ·Letter dated 26 April 2016 from the venerable [Mr D] of [a] Buddhist Temple in [Suburb 1] Queensland, who refers to personal knowledge of the applicant between 1995 to 2004 and attests to his character and that he would be of low risk to the community despite his past convictions

    ·Statutory Declarations and attached identity documents of the applicant’s family members, [Ms E] (applicant’s partner), [Ms F] (applicant’s step daughter) and her partner [Mr G], [Mr H] (applicant’s step son), [Mr I] (applicant’s step son), [Ms J] (applicant’s step daughter), [Mr K] (applicant’s son), [Ms L] (applicant’s daughter), [Ms M] (applicant’s son), [Ms N] and [Mr O] (applicant’s mother and father in law), [Mr P] (applicant’s brother in law) and his [partner], [Ms Q] (applicant’s sister in law) and her [partner], [Ms R] (applicant’s sister in law) and her [partner], [Ms S] (applicant’s sister), [Ms T] (applicant’s niece) and her [partner], [Mr U] (applicant’s nephew), [Mr V] (applicant’s nephew)

    ·Letter dated 12 September 2016 from [Dr W], applicant’s partner’s GP

    ·Copy of correspondence dated 9 April and 2 May 2020 relating to a s195A Ministerial Intervention request on behalf of the applicant.

    ·Copy of correspondence between the applicant’s agent and His Excellency Mr Ngo Huong Nam, Ambassador of Vietnam [in] 2020, disclosing his criminal history and seeking confirmation of applicant’s Vietnamese citizenship

    ·Copy of email correspondence between the applicant’s agent and Embassy of Vietnam [in] 2016 disclosing his migration and criminal history and asking their knowledge of applicant’s past political activities and persecution and seeking confirmation of his citizenship and residency status.

18. Other relevant documents provided by the Department to the Tribunal (copies of which were provided to the applicant’s representative upon request) include:

    ·Deportation Interview Questionnaire dated 28 June 1996 from Departmental File [number], copy of which was provided to the applicant’s representative, is also included in the Department file.[2]

    ·Compliance Client Interview 20 April 2016.[3]

    ·Detention Client Interview Part C 5 May 2016.[4]

    ·SERCO Request Forms dated 5 November 2019 and 19 November 2011 relating to applicant’s requests for removal to Vietnam and for community detention pending his return to Vietnam.

    [2] TRIM document [number] in [departmental file]

    [3] TRIM document [number] in [departmental file]

    [4] TRIM document [number] in [departmental file]

19. The applicant was interviewed by telephone in relation to his protection claims on 27 May 2020.  The delegate’s decision record indicates that his migration agent and barrister participated in the interview and a Vietnamese interpreter was used.  The decision record records that various objections and issues were raised by the applicant’s representatives and the interpreter regarding the quality of sound.  The Tribunal has listened to an audio recording of the interview. 

20. Following the protection visa interview, and as flagged during the interview, on 2 June 2020, the delegate sent the applicant’s representatives an Invitation to comment on adverse information letter (s57 letter) and a Request for more information letter (s56 letter).

21. The applicant’s representative provided responses to these letters on 21 July 2020 and 3 August 2020.  In the submission of 21 July 2020, the applicant’s representative set out various specific concerns relating to communication and interpretation during the interview.  In the response of 7 August 2020 the applicant, through his representative, responded to the request for further details set out in the s56 invitation, referring to relevant paragraphs of his Statutory Declaration of 1 April 2020, and provided further responses to the adverse information put to him in the s57 invitation.

22. On 11 November 2020, the Tribunal requested the Department to provide documents relating to the mandatory cancellation of the applicant’s BB155 visa under s501(3A) and decision on any request for revocation of that cancellation, and any International Treaty Obligations Assessment (ITOA) undertaken in respect of the applicant.

23. The Department provided the requested cancellation and request for revocation of cancellation documents, and decision by the Assistant Minister for Immigration and Border Protection not to revoke the cancellation of the visa made on 9 October 2017. In respect of the ITOA request, it advised that “system records indicate an ITOA was not undertaken for the client.”

    Tribunal Hearing

24. At the hearing the applicant confirmed his family composition in Australia and Vietnam.  He has a wife, [number] children and [number] step children, one sister and [number] brothers and their respective families here in Australia.  In Vietnam he has a father, [number] sisters and [number] brothers, including his younger brother [Mr X] who was removed from Australia a few years ago.  His siblings and father live in the same area, [Village 1] in Nha Trang, Khanh Hoa province. They have lived in this area for a long time.  The applicant confirmed that he has maintained close relationships with his family members in Australia despite being incarcerated for many years.  They have visited him regularly over the years, subject to his location and their work and study commitments.

25. The applicant confirmed the migration and criminal conviction history indicated in the Department records.  Relevantly, he confirmed that he initially left Vietnam in 1981 and went to [Country 1] and came from [Country 1] to Australia in 1986.  Between 1993 and 2001 he returned to Vietnam ten times for visits to see his family members.  He travelled on his Australian travel document each time. He arranged his travel through a travel agent who organised the necessary visa documentation he needed.  He said he never experienced any problems obtaining a visa to travel to Vietnam nor any issues upon entry or departure. 

26. His wife accompanied him on those trips a few times, and since his incarceration she has travelled 2 or 3 times back to Vietnam.  She visits her father’s tomb and also visits the applicant’s father and family members. He believes his children have also travelled back in the time he has been in gaol or detention, on at least one occasion.  He also believes his siblings have returned but was unsure how many times. The Tribunal asked if any of his family members have reported any issues or problems they have had with authorities or anyone during those trips. He said they have not, though his children told him they were sad about his father’s circumstances, being blind and missing a toe. They also told him they did not like the weather there.  The applicant mentioned that he heard many people, including Australians, are strictly watched when they travel in Vietnam but he agreed that no one in his family told him they experienced this. 

1. The applicant confirmed the periods he has been incarcerated in Australia. He was in gaol for a period in 1994-1995.  He was in custody awaiting bail in 2001- 2002 and was sentenced and imprisoned from 2004 until his release on parole on 20 April 2016, when he was taken into immigration detention where he remains to this time.

2. The Tribunal discussed with the applicant his protection claims. He confirmed he fears harm upon return as a result of his statelessness; his political activity and opinions in the past and because he will engage in political activism in the future. In addition he told the Tribunal that he fears harm because of his activities when he was in the refugee camp in [Country 1] where he joined a security force to identity communists who were among them in the camps.  He fears that some of these people would recognise him if he returned.

3. Regarding his fear of harm on the basis of his statelessness the applicant stated that he would be considered a traitor because he escaped from the country in 1981. His representative at this point interjected and submitted that the issue of his statelessness is a question of law. The representative addressed the arguments set out in his written submissions given to the Tribunal just prior to the hearing. He argued that the 2008 Nationality law cannot apply to the applicant because he was not living in Vietnam at that time. He submitted that a plain reading of the Vietnamese nationality laws cannot make the applicant a citizen at any material time. While people living in Vietnam may have been deemed citizens for reasons of living there, this does not apply to the applicant. The concept of nationality must come from a statute, it is not an immutable right.  The Tribunal asked why Article 13(2), which provides that overseas Vietnamese who have not lost their nationality retain it, would not apply to the applicant, he argued that the applicant never had citizenship, so he  cannot lose it. He never acquired it by birth because the current country of Vietnam did not exist then. The Tribunal asked what then was his status between 1975 and 1981 when he left the country. The representative submitted he had no status during that time.

4. Regarding his claims of past political activity in Vietnam and [Country 1] the applicant provided the following information.  He was part of an anti government group and his role was to collect information for the group to arrange demonstrations. When asked to elaborate on what information he was collecting and for whom, he said for example the communist country would create policies to confiscate assets of the people. The group he was involved in was not an official one but rather in secret.  He helped to make leaflets. He was a member but there were higher ranked people above him.  When asked if the group had a name he said it did not. They were just a group of people who did not like the government.  There were about 20 of them and there were no ranked people in the group.

5. The Tribunal asked the applicant why he left Vietnam in 1981.  He said he did not like the Communist government policy. He was about to be mobilised and did not want to be enlisted.  The Tribunal noted he was [age] years old by then and he would have been eligible for enlistment from the age of 18 years.  It asked him if anything happened to him in the period he was 18 years to [age] years old, before he left.  He said he was in hiding in that period and nothing happened in that time.

6. The Tribunal asked the applicant what he did in [Country 1]. He said he was a member of the security force in the camp.  He identified communists in the camp and they would know him.   He said he was also a member of the ex- Vietnam Government Recovery Force and they would sometimes go to Thailand to try and re-enter Vietnam to fight. When asked if he ever did that, he said he did not go to Thailand but he was listed in the group who could have been asked to go.  It was a secret list of people.  He confirmed he did not ever go. The applicant said he knows the names of people in that group, such as the leader, [Mr Y]. His father was a lieutenant general. He heard he eventually resettled in [Country 2]. He also supplied food to refugees and investigated new arrivals to see if they were spies.

7. The Tribunal asked why this causes him to fear harm now, so many years later.  He responded that he believes because of his involvement in the security group he could be recognised by those people and he would be arrested and imprisoned.

8. The Tribunal asked him why, if this was his fear, he returned to Vietnam ten times between 1993 and 2001. He responded that he knew he was protected by the Australian government and he would try and look for the ex members of the secret group but he did not find them.  The Tribunal asked him if anything happened to him on any of those trips.  He said he was watched by the police and so he kept moving from place to place.

9. The Tribunal put to the applicant that given such a long period of time has passed since his original departure from Vietnam, on what basis does he fear harm because of those past events and associations. He said previously when he has gone back he had the protection of the Australian government but now if he is returned he would not.  When asked to clarify what protection from the Australian government he means, he said he is referring to the visa he held from the Australian government.

10. The Tribunal asked the applicant about his political activity in Australia.  He said every year on 30 April community organisations organised rallies in places like [City 1] and he joined the group to organise these rallies. He was also involved in the groups who organise protests against the communist singers.  When asked how many such events he was involved in he said they were annual rallies, he cannot recall how many other events he attended.  He went to one in [State 1], one in [City 2].  He has not attended anything since he has been in jail and detention since 2004. The Tribunal put to him that since it has been more than 16 years since he attended any such events, why is he concerned about that now. He said irrespective of how long ago it was the government would have documented his name and he won’t be forgiven for it. The Tribunal reminded the applicant again that he returned 10 times to Vietnam and did not experience serious harm because of this. He repeated that this was because he had the protection of an Australian visa.

11. The Tribunal put to the applicant that country information before it indicates the authorities come after even foreign nationals if they are of adverse interest to them, and on this basis it may not accept his reasoning that he was ‘protected by his Australian visa’ and may find that his willingness and ability to return 10 times without incident instead suggests he had no subjective fear and is of no interest to the authorities.  In response the applicant said that he fears they will harm him if he returns now.

12. The Tribunal asked the applicant about the individuals who have provided support letters for him. He said [Dr B] is the [officer bearer] of the Vietnamese community in [State 1]. He went to meetings and met him in that context about one or two times.  He last saw him before 2004. The Tribunal noted the content of the letter suggests he does not know him personally so the Tribunal may not place much weight on this letter. The applicant reiterated he did meet him personally and he would help clean up after the events which is why he knows him. Regarding [Mr C] he is a member and leader of Viet Tan, the applicant supported them at rallies. He confirmed he is not a member of Viet Tan. When asked what he knows about this organisation he said they are anti-communist. The last time he had anything to do with them was before he went to jail. He has not followed their activities since he has been in jail.  The only contact he has had since being incarcerated is with his family.

13. The Tribunal asked the applicant what he will do if he is returned to Vietnam. He said if released from detention he will participate in any activities in Australia that are against the communist government. If he is returned to Vietnam and not immediately incarcerated, he will look for patriotic people who hate the government and get involved in their activities. He follows news on Facebook and social media and is aware that some members of Viet Tan have been arrested.  He would join people who are against the government and join with Chinese people who are treated badly in Vietnam.

14. The Tribunal noted that he omitted to mention any political activism when he responded to questions in a Response to Interview Questionnaire he completed in 1996 in the context of consideration then to deport him.  This may lead the Tribunal to have doubts about whether he was involved in such activities in the past as he now claims. He said he wanted to say much more but the lawyer did not allow him. The Tribunal noted that he was represented by the same lawyer then as he is now.  He agreed with this. The Tribunal asked him about his request to Serco to be removed in November 2019.  He said he was stressed and depressed at that time when he asked to be returned and after speaking to his family and lawyers he subsequently retracted this request.

15. The Tribunal asked if there was anything else he wished to say.  He said when in [Country 1] refugee camp he was a member of a security group who would identify people sent to the camps.  He referred to three names of people who were on the list and all the refugees in the camps knew these people.

16. Regarding his attempts to apply for a passport from the Vietnamese Embassy, the applicant said he requested Serco to make an application for him but heard nothing more about it.  When his lawyer wrote to the embassy, they also received no response. He understands the application was refused because of the address he provided or something, and this indicates they do not want him to return.  He has no evidence that his application was refused.

17. Following the hearing, on 23 December 2020, the Tribunal received a further Statutory Declaration from the applicant dated 19 December 2020.  He reiterates that if sent to the Socialist Republic of Vietnam he will continue his anti-communist activities.  He has been an anti-communist all his life and if returned he will join whatever protest movements are about to help.  When he went to Vietnam all those years ago it was just to see his parents.  He was only there for a short period of time and lay low so as not to cause problems for his parents. It will be a different story if he is forced to return. He would be abandoning his beliefs if he did not oppose the Socialist Republic of Vietnam.  His voice will be suppressed and he will be arrested if he continues his anti-communist activism. When he asked to be returned to Vietnam, it was a moment of frustration on his part because of the mental affect of detention. When he cancelled his request after speaking with his family and lawyers, the Department informed him that the Vietnamese authorities could not locate his request and suggest he provided a wrong address, which he did not. He believes the authorities do not want him back and therefore are not issuing him with the document.

18. On 4 January 2021 the applicant’s representative submitted further legal submissions on the issue of statelessness and supporting information, discussed further below.

19. Following the hearing the Tribunal requested and was provided information from the Department about the travel document on which the applicant’s brother departed Australia in 2017.  The Tribunal also asked if any action was taken by the Department or Serco to facilitate the applicant’s request to make an application for a passport from the Vietnamese Embassy in November 2019. 

20. On 22 February 2021 the Tribunal put details to the applicant of the information provided by the Department in response to the above requests for comment under s424A.  Specifically, it put to him that information his brother was issued a laissez passer document by the Socialist Republic of Vietnam, and his past application for a travel document to the Vietnamese authorities, is relevant because it would contribute to reasons the Tribunal would find he is a Vietnamese national, contrary to his claims that he is stateless.

21. The Tribunal received a response to this invitation from the applicant’s representative on 2 March 2021 in which he stated that his brother was the person who got the applicant involved in the activities that triggered the cancellation of the visa and he is no longer in contact with him and is unaware of his departure documents or his status and current criminal activities if any in Vietnam. He also reiterated that he makes this application for protection on the basis that he is an activist and his brother did not participate.  Regarding the information that he provided an inaccurate address to the Vietnamese Embassy, he denies this and submits perhaps his activism or the letter sent by his lawyer to the Vietnamese Embassy triggered erasure of his details by the government.  

22. The applicant’s representative further argued against the Tribunal placing any reliance on the report authored by Ms Lyma Nguyen (Report on Citizenship Law – Vietnam, Robert Schuman Centre for Advanced Studies, 13 September 2017) on the basis that she has no substantial legal experience in Vietnamese law and is not qualified to be an expert witness on this issue.

23. On 10 March 2021, the Tribunal received further materials for the Tribunal’s consideration:

    ·A statutory declaration of the applicant’s representative addressing the basis for her objection to reliance on Ms Lyma Nguyen for expertise in the law of Vietnam.

    ·Various source materials referred to in Counsel’s submissions of 4 January 2021 not previously attached.

    ·Human Rights Watch, World Report 2020: Vietnam, 1/4/2021, Events of 2019.

24. On 17 March 2020 the representative submitted:

    ·A further Statutory Declaration of [Dr B] dated 15 March 2021 providing details of his own background, including that he was born in [year], left North Vietnam in 1954 at the age of [age] with his family, he also graduated from Saigon University with a Bachelor of Law, states his opinion that no law of North Vietnam can be applied in South Vietnam as they were two separate countries until 1975. He fled Vietnam in 1975 and came to Australia.  [Dr B] refers to his various affiliations and activities with the Vietnamese community in Australia.  He states he has never returned to Vietnam and never will.

    ·A further Statutory Declaration of [Mr Z] dated 15 March 2021, providing details of his own background, including that he was born in [year] in the Republic of Vietnam, escaped in 1982 to Japan and came to Australia in 1985. He states he studied history in Vietnam to college level and states his knowledge of the two countries which existed from 1954 until 1975, being Democratic Republic of Vietnam (North Vietnam) and Republic of Vietnam (South Vietnam) and that the Socialist Republic of Vietnam was formed in 1975 when the North defeated the South.  He is a member of the Viet Tan Reform Party and is quite active.  He has never returned to the Socialist Republic of Vietnam and never intends to go there.

    ·Statement of [Ms AA], of [a named travel agency], Queensland, 16 March 2021.  She is a travel consultant since 2009, specialising in sales of travel to Vietnam and applying for entry visas for Vietnam for clients.  She states that any person residing in Australia, including of Vietnamese origin who does not hold a Vietnamese passport is required to apply for a visa and their visa application must be approved before they can enter Vietnam.

25. On 17 March 2021 further submissions on statelessness by counsel for the applicant were provided, with a further bundle of country and reference materials.

26. On 9 and 14 April 2021 the applicant’s representative submitted :

    ·A Statement of [Mr AB], who claims to be a high ranking General for the South Vietnamese government and was imprisoned from 1975 to 1980 and mistreated and impoverished prior to being sponsored by a humanitarian organisation for resettlement in the USA.   

    ·Statutory Declaration by the applicant’s representative, [Ms AC], setting out details of her contact, through the applicant’s sister, with his father.  regarding his experiences after release from the communist re-education camp and his apparent claim that he and his family were never considered Vietnamese citizens and do not have the right to vote ever and receives no pension.  [Ms AC] also set out details of her own personal experience of her family’s departure from Vietnam in 1976. She states she has been unable to obtain an expert witness on Vietnamese law due to feared repercussions.

27. On 16 April 2021 The Tribunal received further submissions on statelessness from counsel for the applicant, together with a Newsweek article dated May 1982, and copy of the Freedom in the World 2020, Vietnam Country Report of Freedom House.

    CONSIDERATION

28. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

29. In the present case the applicant claims he is stateless, having been born in the Republic of Vietnam in [year] and departed without any documents in 1981 under the government of the Socialist Republic of Vietnam.  He claims that he holds no birth or identity documents and has never held a passport.  He claims he is stateless because the nationality of his birth no longer exists. He claims he participated in anti-communist political activities prior to leaving Vietnam and in the refugee camp in [Country 1] and since his arrival in Australia.   He fears harm if returned to Vietnam now on the basis of his political opinion and past political activities, and as a stateless person.

    Is the applicant a national of the Social Republic of Vietnam or is he stateless as claimed?

30. For the purposes of consideration of the applicant’s protection claims, the first issue for the Tribunal to determine is the relevant ‘receiving country’ to assess his claims against. 

31. ‘Receiving country’ is defined in the Act to mean a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or 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: s5(1). Country of nationality denotes a country capable of granting nationality.[5] In international law, states are capable of granting nationality, and as such a ‘country of nationality’ should be taken to mean a state as defined by international conventions, customs and legal principles.[6]  

    [5] Koe v MIEA (1997) 78 FCR 289 at 298.

    [6] See I Brownlie, Principles of Public International Law (OUP, 2001), at 385–388. In contrast, a ‘country of former habitual residence’ need not be capable of granting nationality, and therefore need not be a State.

1. The applicant claims he is stateless because the country of his birth and of which he was a citizen (Republic of Vietnam), no longer exists. Further, he claims he has no birth certificate and has never held any passport and therefore has no claims to nationality in the Socialist Republic of Vietnam as it exists today. In submissions made on his behalf by his representatives, it is argued that the first Nationality Law that came into effect in the Socialist Republic of Vietnam was the Nationality Law of 1988 which was after the applicant’s departure from the country in 1981 and there was no law of the Socialist Republic of Vietnam in effect prior to that which granted him citizenship.

2. To consider this claim, it is necessary to consider the nationality laws of Vietnam.  If the Tribunal finds the applicant is a national of the Socialist Republic of Vietnam, it will consider his protection claims against that country.  If it is not satisfied he is a national of the Socialist Republic of Vietnam, and it accepts the applicant’s claim that he is stateless, the Tribunal must identify his country of former habitual residence against which it will assess his protection claims. As indicated above (footnote 6) a country of former habitual territory need not be capable of granting nationality, and therefore need not be a state.  Arguably, therefore if the Tribunal is not satisfied that the applicant is a national of the Socialist Republic of Vietnam, it may nevertheless conclude his country of former habitual residence is South Vietnam, which no longer exists as a state. Given the conclusions below, this point is moot.

3. Whether a person has a particular nationality is a question of fact for the decision maker, and in accordance with the definition of ‘receiving country’, that question must be determined solely by reference to the laws of the country. 

   Submissions on behalf of the applicant

4. Before the Tribunal numerous submissions have been made by the applicant’s representatives addressing his claim to be stateless.  In summary the salient points made in these submissions:

   ·The applicant is unable to seek the diplomatic protection of the Socialist Republic of Vietnam.

   ·In respect of all of his past entries into Vietnam he obtained and was granted a tourist visa, and was never advised he didn’t need one as a citizen

   ·He has never had a birth certificate or passport and left the country illegally in 1981

   ·He was born in [year] in the Republic of Vietnam, which was at that time separate country, recognised by Australia and others as a separate country.

   ·Argues that citizenship is a creature of statute or law, determined by the municipal law of the country of supposed citizenship , in this case the Socialist Republic of Vietnam.

   ·Therefore one must look at the law of Socialist Republic of Vietnam to determine if the applicant is a citizen of that country and the flaw of the delegate’s approach was reliance on Order 53, made in October 1945 prior to the applicant’s birth in 1961 in the discrete different country of Republic of Vietnam and prior to the creation of the Socialist Republic of Vietnam on 2 July 1976.

   ·The first Nationality Law identified by the delegate was the Nationality Law of 1988, which was replaced by the Nationality Law of 1998 and superseded by the 2008 Law on Vietnamese Nationality.

   ·In other matters before the AAT, the pathway to citizenship for a person like the applicant is Article 15 of that law  - which refers to citizenship of children whose parents are Vietnamese citizens.  But the applicant was born in 1961 in the Republic of Vietnam which was a separate country, recognised by Australia. Without a deeming law, the applicant is not a citizen of the Socialist Republic of Vietnam.

   ·With regard to Article 13, which refers to persons having Vietnamese citizenship, also referred to in other decisions, this is predicated on the applicant having Vietnamese citizenship which he does not.

   ·Article 2(3) (sic) which defines “overseas Vietnamese” is a definition term and does not confer citizenship on the applicant.

   ·There is no obvious provision which draws the applicant into citizenship of the Socialist Republic of Vietnam.

   ·Therefore he is stateless. To send the applicant back to Vietnam as a stateless person would condemn him to a life without rights. 

   ·Acknowledging that the applicant is of Vietnamese ethnicity, this must be distinguished from citizenship.  There must be a law of the Socialist Republic of Vietnam that gives him citizenship or makes him a citizen.

   ·His parents are ethnically Vietnamese, born in [year]’s in French Indochina and he was born in Republic of Vietnam in [year]. The Socialist Republic of Vietnam came into being on 2 July 1976.  The applicant left that country in 1981 prior to the enactment of any nationality laws.

   ·The fact that the applicant applied for and was granted a tourist visa each time he travelled to Vietnam between 1993 and 2001 is practical proof that he was not at any material time a citizen of Socialist Republic of Vietnam.

   ·The delegate was unduly influenced by the Report on Citizenship law – Vietnam , Robert Schuman Centre for Advanced Studies, 13 September 2017 authored by Ms Lyma Nguyen, a barrister from the Northern Territory. It is submitted that she is not suitably qualified to be an expert on this topic, as she has no claimed fluency in written Vietnamese and has never been admitted or practiced as a lawyer in the Socialist Republic of Vietnam and this report should not be relied on in determining the issue of the applicant’s citizenship status.

   ·Specifically, regarding paragraph 3.2.1 at page 10 of the above cited Report, reference to Article 15 - citizenship on the basis of parents citizenship – it is noted that Article states (in full)  that “A child born inside or outside the Vietnamese territory, whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese citizenship”  As the applicant’s parents were not citizens of the Socialist Republic of Vietnam on [date] when he was born, he cannot be a citizen on the basis of this Article.

   ·Article 2 proclaims that every individual has the right to a nationality.  While the applicant’s parents, being present in the Socialist Republic of Vietnam in 1988, 1998 and 2008 may be deemed citizens , the applicant had left in 1981 and therefore cannot be so deemed.  This is confirmed by the repeated grant of tourist visas to the applicant between 1993 and 2001.

   ·The applicant is also clearly not eligible for citizenship by naturalisation in light of his criminal convictions.

   ·The applicant left Vietnam without an enforceable right of citizenship.

   ·It is acknowledged that there was probably a lacuna in the law of the Socialist Republic of Vietnam from 1976 to 1988 which probably conferred citizenship status on ‘south Vietnamese’.  However, as a totalitarian regime, there would not have been elections taking place such as to conclude that voting rights conferred citizenship status. It is submitted that in that period power likely  came from the barrel of a gun.

   ·In submissions made on 16 March 2021, it was reiterated that the delegate’s reliance on Order 53 made by Ho Chi Minh in 1945 cannot be the source of law for the citizenship status of either the applicant’s parents or himself, because they were all citizens of a separate country the Republic of Vietnam; and reliance should not be placed on the Schuman Report as the author is not appropriately qualified to provide an expert opinion on the issue of Socialist Republic of Vietnam nationality laws.

   ·Submissions of 16 April 2021 refer to the obligation to give the applicant an opportunity to respond to crucial material that may be decisive, including any country information relied upon and requests to be supplied with any information not previously disclosed that may be the basis to find that the applicant is a citizen of the Socialist Republic of Vietnam.  The submissions also argue against reliance on historical material written through the eyes of the victors.  Reference is made to a 4 May 1982 Newsweek article, ‘Vietnam’s Postwar Hell’ to argue it would be unreliable to assert that families of former combatants in south Vietnam were given full civil and political rights by the Socialist Republic of Vietnam.

5. The Tribunal has considered these submissions and undertaken its own research and analysis of the nationality laws of the Socialist Republic of Vietnam.  Among the evidence considered by the Tribunal in reaching its conclusions, it has had regard to the 2017 Robert Schuman Centre for Advanced Studies Report on Citizenship Law – Vietnam’, authored by Ms Lyma Nguyen[7] and also a history of Vietnam’s citizenship laws published in the Vietnam Law & Legal Forum magazine in July 2009.[8] In referring to this material, the Tribunal has considered, but respectfully rejects, the representative’s submissions against placing undue reliance on Ms Lyma Nguyen as an expert in Vietnamese nationality laws, or for that matter on any source that can be seen to have been written through the eyes of the victors – a critique which could be made by the applicant regarding the latter source.  Contrary to the applicant’s representative’s submissions, the Tribunal considers these sources contain useful analyses of the history and laws relating to citizenship law in Vietnam.

   [7]  Report on Citizenship Law – Vietnam’, Robert Schuman Centre for Advanced Studies, 13 September 2017, CISEDB50AD5868

   [8] ‘A history of Vietnam’s citizenship laws’, Nguyen Thi Ngoc Lam, Vietnam Law & Legal Forum, 1 July 2009, 20191009160004. The Vietnam Law & Legal Forum magazine has been published monthly in English by the Vietnam News Agency since September 1994, and describes itself as ‘a reliable friend of those who wish to inquire into Vietnamese laws and policies’. See: >

   The Tribunal also considered the statements of [Dr B], [Mr Z] and [Mr AB] providing their personal views about their circumstances in Vietnam prior to their departure and their opinions about the applicability of laws of the Republic of Vietnam to South Vietnam and circumstances in the country prior to their departure.  The Tribunal considers this information the personal views and opinions of them as private individuals.  Although they have stated their qualifications or, in the case of [Mr AB], his military position, no supporting evidence of this was provided.  The Tribunal does not take it to be asserted, and does not accept, that they are expressing their views as experts in any particular field.  The Tribunal also considered the Statutory Declaration of the applicant’s solicitor, dated 9 April 2021 setting out matters relating to her own personal history, specific aspects of the content of which is discussed further below.  With regard to the statement of [Ms AA], the Tribunal accepts her evidence is consistent with the applicant’s claim that he obtained visas to enter Vietnam when he previously travelled there on his Australian travel document.

6. The Tribunal has also had regard to other information and findings on factual matters relevant to this issue. Ultimately the existence, nature and scope of the rules and principles of Vietnamese nationality laws and their application to the applicant’s facts and circumstances are questions of fact for the Tribunal.  It is open to the Tribunal to acquaint itself with as much of the foreign law of the relevant state as is necessary to make findings on the issue, including by reference to secondary sources of a scholarly or non-scholarly nature, among other evidence.[9]  

   [9] See VSAB v MIMIA [2006] FCA 239.

7. For the following reasons the Tribunal has concluded the applicant is a citizen of the Socialist Republic of Vietnam in accordance with its laws.

   Vietnamese Nationality Law

8. Vietnam was divided into two states, the Republic of Vietnam in the south and the communist Democratic Republic of Vietnam in the north, by the 1954 Geneva Accords at the end of French colonial rule. A contest for legitimacy between the two states followed, escalating into the conflict commonly referred to as the Vietnam war (or the American War or Second Indochina War in Vietnam).[10] 

   [10] DFAT Country Information Report Vietnam December 2019, [2.1], p8

9. At the end of the war in 1975 the South became part of the newly united Socialist Republic of Vietnam (1976) (SROV) and a new constitution was enacted in 1980.  The Tribunal was unable to locate an official English language version of the 1980 Constitution of the SROV, but has considered discussions of it contained in secondary sources.[11] This information indicates that Article 53 of the 1980 Constitution provided that “Citizens of the Socialist Republic of Vietnam are those who bear Vietnamese citizenship as provided for by law.”’[12] Text of a revised Constitution approved by the 8th National Assembly in 15 April 1982 refers to Article 49 which states “A citizen of the Socialist Republic of Vietnam is a person with Vietnamese nationality” and Article 5 that provides “The Socialist Republic of Vietnam is the unified State of all nationalities living on the territory of Vietnam”. [13] While it is not explicitly clear what was meant by the phrase ‘those who bear Vietnamese citizenship as provided for by law’ in Article 53 of the 1980 Constitution, the Tribunal considers the legislative purpose of Article 53 was reinforced by the 1982 amendments in Articles 49 and 5. These references to citizenship in the founding Constitutions provided the legal basis for the Nationality laws, first adopted on 15 July 1988, and then replaced by the Nationality Law of 1998[14] and subsequently by the Law on Vietnamese Nationality in 2008 (the 2008 Nationality Law).[15] 

   [11] ‘Vietnam’s 1980 Constitution’, Pham Diem, Vietnam Law & Legal Forum, 31 March 2011, 20210416135310

   [12] ‘A history of Vietnam’s citizenship laws’, Nguyen Thi Ngoc Lam, Vietnam Law & Legal Forum, 1 July 2009, 20191009160004

   [13] Viet Nam: Constitution  [],  15 April 1992, available at: 19 April 2021]

   [14] Law No. 07/1998/QH10 on Vietnamese Nationality of 20 May 1998 [], Official Gazette No. 21 dated 31 July 1998, 20 May 1998, available at: 31 March 2021]

   [15] Report on Citizenship Law – Vietnam’, Robert Schuman Centre for Advanced Studies, 13 September 2017, p1, CISEDB50AD5868

10. The 2008 Nationality Law was passed by the National Assembly of the Socialist Republic of Vietnam on 13 November 2008 and came into effect on 1 July 2009.[16]  Amendments to the 2008 Nationality Law were enacted in 2014 (coming into effect on 26 June 2014) abolishing the requirement set out in Article 13 (2) of the 2008 Nationality Law for overseas Vietnamese to register within 5 years with an overseas Vietnamese mission to retain nationality and annulling paragraph 3 of Article 26 which provided failure to register as a ground for loss of citizenship.[17] The 2008 Nationality Law as amended in 2014, is the current law applicable in the SROV.

    [16] Law on Vietnamese Nationality [Viet Nam], No. 24/2008/QH12, 13 November 2008, available at: [accessed 20 January 2021]

    [17] Vietnam, “President signs order to announce amended nationality law”, 1 July 2014,

11. Article 2 of the 2008 Nationality Law emphasises the equality of ‘all ethnic groups living on Vietnamese territory’ insofar as concerns of entitlement to Vietnamese citizenship, by providing that ‘the Socialist Republic of Vietnam is a unified State of all ethnic groups living in the Vietnamese territory’ in which each individual is entitled to have citizenship. The Tribunal observes that the terms of Article 2 draws no distinction between ethnic Vietnamese people born in South or North Vietnam and refers to Vietnam as a unified state.

12. Articles 3(3) and 3(4) of the 2008 Nationality Law specifically provides for  categories of “Overseas Vietnamese” (defined as Vietnamese citizens) and “persons of Vietnamese origin residing abroad” (defined as Vietnamese people who used to have Vietnamese citizenship which had been determined at the time of their birth on the consanguinity principle and their offspring(sic) and grandchildren are permanently residing in foreign countries).  It is observed by Ms Nguyen in her 2017 Report that the inclusion of these additional categories of persons in the 2008 Nationality Law enables a greater scope of persons to access the naturalisation provisions, including persons of Vietnamese origin who fled from Vietnam as refugees in the aftermath of war, and their children, and the inclusion of more detailed procedures and protocols governing citizenship, provides stronger protections against statelessness.[18] 

    [18] Report on Citizenship Law – Vietnam’, Robert Schuman Centre for Advanced Studies, 13 September 2017, p3-4, CISEDB50AD5868

13. Article 13(2) provides that overseas Vietnamese residing abroad who have not lost their Vietnamese citizenship status prior to the enactment of the law, still retain it.  Where such persons have no papers as prescribed in Article 11 providing their Vietnamese nationality, they must register with an overseas Vietnamese mission to have their nationality recognised and passport issued.[19]  Amendments passed on 26 June 2014 removed the requirement in Article 13 to register with an overseas mission within 5 years (that is by 1 July 2014) – prior to these amendments, the applicant having not registered with a mission, would have lost his citizenship according to this provision.

    [19] Vietnam, “President signs order to announce amended nationality law”, 1 July 2014,

14. The Tribunal has considered the applicability of the above laws to the applicant.

15. The Tribunal accepts that the applicant had departed SROV by the time the first Nationality Law was enacted in 1988 and was not present in the country at the time the 1998 or 2008 laws came into effect.  It has considered the argument submitted by the applicant that, for this reason, none of these laws conferred citizenship upon him because he was not in the territory of the SROV at that time.

16. However, it is not disputed that the applicant was in SROV from the period 1976 to 1981, during which period the first Constitution came into effect, and this document, and the subsequent revision in 1982, made reference to concepts of citizenship and nationality (as discussed in paragraph 67 above). While the Tribunal is mindful that the notion of ‘nationality’ is not identical to ‘citizenship’, both embody some form of link to, or membership of, a State giving rise to the existence of reciprocal rights and duties,[20] it finds on the basis of Article 53 of the 1980 Constitution, read in conjunction with Articles 5 and 49 of the 1982 revision of that document, that the applicant, by his presence in the territory of the Socialist Republic of Vietnam in this period was a citizen or national of the newly created nation.

    [20] VSAB v MIMIA [2006]FCA 239 at [50]-[530]

17. Further supporting this conclusion, the Tribunal takes the following into account.  The applicant claimed his father, as a former soldier in the South Vietnamese army, was forced into a re-education camp.  Information before the Tribunal indicates former South Vietnamese who were summonsed and held in re-education camps following the war were subsequently released and had their ‘citizen rights’ restored.[21] This supports, contrary to the applicant’s claims, that even prior to the passage of the 1988 Nationality Laws, former ‘South Vietnamese’ were granted citizenship in the SROV in the period the applicant was present in the country.  

    [21] Re-education in unliberated Vietnam: Loneliness, suffering and death – by Ginetta Sagan and Stephen Denney [1982] where it was reported “The most significant policy announcement on the re-education camps was broadcast by Saigon Domestic Service on June 9, 1976. This is the May 25 PRGRSV statement No. 02/CS-76, signed by President Huynh Tan Phat. According to this broadcast, 95% of those « attending reform courses had their cases examined and their citizen’s rights restored » in order that they could vote in the April elections.”

1. The applicant also claimed in his written submissions and reiterated in his oral testimony to the Tribunal, that he was in hiding from the age of 18 years until his departure to avoid conscription into the communist defence force. He also provided this information to the Department many years earlier in the Deportation Interview Questionnaire dated 28 June 1996 where he stated that he ‘had to leave because he was conscripted to join the army’. A Library of Congress country study of Vietnam, published in 1989, indicates that Vietnam’s 1980 Constitution stipulated in Article 52 that citizens were ‘obliged to do military service’. [22]  The study indicated that  military service was universal and compulsory, and obliged all male citizens from all rural areas, city districts, organs, state enterprises, and vocational schools from elementary to college level, regardless of the positions they hold, if they meet the induction criteria of the annual state draft plan, to serve in the armed forces for a limited time in accordance with the draft law. There was a General Mobilization Order of 5 March 1979, in the wake of a 29 day incursion by the Chinese military into Vietnam "[23]

   [22] ‘Vietnam: a country study’, Cima, R J, Federal Research Division, Library of Congress, 1989, p.262, 20210409160532 . Article 52 of the Constitution mandated ‘compulsory military service as part of the state's efforts to "stimulate the people's patriotism and revolutionary heroism."’

   [23] ‘Vietnam: a country study’, Cima, R J, Federal Research Division, Library of Congress, 1989, pp.262-263, 20210409160532

2. On the basis of the above country information and the applicant’s evidence, the Tribunal accepts the applicant was subject to compulsory military service from the age of 18 years and considers this is the likely reason he fled the country in 1981.  That the applicant was subject to military conscription strongly supports that he was a citizen prior to his departure.

3. The evidence also indicates the applicant’s parents and siblings have been living in the same area continuously since his departure.  The applicant’s oral evidence was that he made multiple visits to Vietnam between 1993 and 2001 to visit his family members, and that they all continued to reside in the same area throughout this period.  While the applicant’s  representative put forward in her Statutory Declaration of 9 April 2021 information that she had contact with the applicant’s father in Vietnam who informed her he has never had rights to vote in any elections in the SROV and that he and his family were never considered Vietnamese citizens and he is not eligible for a pension, the Tribunal gives this evidence little weight.  While not strictly speaking bound by rules of evidence, it considers the claims made in the representative’s declaration are hearsay and unsubstantiated.  The information provided is also not consistent with independent information referred to above regarding the restoration of citizenship rights to former south Vietnamese soldiers who were held in re-education camps (although the Tribunal acknowledges independent information describing the many challenges and violations that occurred in the early post war years, referred to later in these reasons).  It is also not consistent with information provided by the applicant himself in his application, declaring that his siblings in Vietnam are Vietnamese citizens.  

4. Additionally, the Tribunal notes the applicant’s brother, [Mr X], who came to Australia at the same time as the applicant, was granted a laissez passer document by the SROV in November 2016 and departed Australia on this document in January 2017.  The Tribunal put this information to the applicant for comment under s424A.  In response he responded that he has no contact with his brother and is unaware of the departure documents or his status in Vietnam and provided no other information or explanation.  Given the applicant and his brother’s common family and migration history, in the absence of any specific information that would distinguish their citizenship status, the Tribunal finds the granting of a laissez passer to his brother enabling his return to the country strongly indicates his brother was recognized as a citizen of SROV and therefore is a strong indicator that the applicant would also be recognised as a citizen and entitled to be issued a similar travel document  for return on the basis of Vietnamese nationality. 

5. The Tribunal notes and takes into consideration the applicant, through his representatives has made requests for the issue of travel documentation from the Vietnamese authorities since he has been in immigration detention, contradicting his claims that he is stateless. 

6. It also notes that his nationality is declared as Vietnamese on his Australian travel document, a copy of which was provided with his protection visa application, that was used for his travel to Vietnam in the past.   

7. The Tribunal considers that references to citizenship and nationality in the 1980 Constitution together with the findings above that the applicant resided in SROV from 1976 to 1981, was subject to and fled from compulsory military conscription, and his parents and siblings have continued to reside in the same area continuously, support a conclusion that the applicant was a Vietnamese citizen when he departed SROV in 1981.

8. There is no evidence before the Tribunal, and he has not claimed, that he lost, or has renounced, that citizenship at any time since then.

9. The Tribunal accepts, having had Vietnamese citizenship, that the applicant has no papers to establish his citizenship at this time, having no birth certificate or passport.

10. Having found the applicant was a Vietnamese citizen when he departed SROV in 1981, the  Tribunal finds that he comes within the definition of ‘Overseas Vietnamese’ in Article 3 of the 2008 Nationality Laws (see paragraph 70 above).

11. As indicated above (paragraph 71), Article 13 provides that overseas Vietnamese residing abroad who have not lost their Vietnamese citizenship status prior to the enactment of the law, still retain it.  The 2014 amendments to Articles 13 and 26 (having effect as at 26 June 2014) enable overseas Vietnamese more flexibility to have their Vietnamese nationality recognised by taking away the need to register with an overseas mission within five years of the 2008 Nationality Laws coming into force.  The new Article 13(2) enables overseas Vietnamese who have not yet lost their Vietnamese citizenship – but have no papers to prove their citizenship – to register with an overseas Vietnamese representative mission to verify their citizenship and be issued a Vietnamese passport. At the same time, the old Article 26(3), specifying that failing to register for Vietnamese citizenship constitutes a ground for loss of Vietnamese citizenship, is removed’.[24]

    [24] ‘Report on Citizenship Law – Vietnam’, Robert Schuman Centre for Advanced Studies, 13 September 2017, CISEDB50AD5868, p.8

12. While accepting that there is no evidence before the Tribunal that the applicant has registered with a Vietnamese mission, or has yet been issued a passport,  on the basis of the above, it finds he has not lost his Vietnamese citizenship due to the 2014 amendments.  There is no evidence before the Tribunal that the applicant has otherwise renounced or been deprived of his Vietnamese citizenship.

13. Therefore, the Tribunal is satisfied that the applicant remains a Vietnamese citizen and is not stateless.

14. For these reasons, the Tribunal assesses his protection claims against the Socialist Republic of Vietnam as the country of reference. 

    Protection claims

    Political activity in Vietnam and [Country 1] prior to arrival

15. The applicant claims in his written and oral evidence, that he joined a secret anti communist youth group in Vietnam when he turned 16 years old and participated in their activities by ‘collecting information’ and passing it on to people who organised demonstrations’ and that he ‘helped to make leaflets’.  He provided limited further detail when asked to elaborate on these activities by the Department in writing or orally to the Tribunal. He told the Tribunal the group operated in secret and was not official, comprised about 20 people and he held no official position.  The Tribunal notes he did not depart Vietnam until he was [age] years old, when he left for [Country 1], and has never claimed he was arrested or harmed prior to departing Vietnam in 1981.

16. When asked why he left Vietnam, the applicant said he was due to be mobilised and did not want to enlist. This is consistent with his response to the Questionnaire in 1996, where he stated he left Vietnam because he was conscripted to join the army.

17. In [Country 1] he claims he was a member of the security force within the refugee camp and in that context he was involved in identifying spies from the communist party among the refugees. He fears he will be recognised if he returns to Vietnam by those communists he identified. The applicant referred to being included in a list of people in a group called the ‘Government Recovery Force’ and claimed he would be recognised if returned and arrested and imprisoned for this reason.

18. The applicant arrived in Australia in 1986 from [Country 1] under the Indochinese Humanitarian Programme. Since his arrival he has returned to Vietnam on 10 separate occasions between 1993 and 2001. He made no claims of any incidents of harm during those visits.

19. The events and activities the applicant claims to have been involved in occurred almost four decades ago, when the applicant was in his teens and early twenties. The Tribunal finds his evidence about these matters was general, vague and lacking in specific detail. It has taken into account the substantial passage of time that has passed since then and the context and circumstances of the period, being the end of a long, protracted and contested war.  The Tribunal also finds the substance of his description of his circumstances in Vietnam is consistent with and supported by independent information that documents the significant challenges of reunification and reconciliation in the post war period particularly.[25] To this end the Tribunal also considered the May 1982, published in Newsweek, by Ginetta Sagan, provided by the applicant’s representative.  

    [25] See for example, Vietnam After the War, Asia Pacific Foundation of Canada,  pp8-9, describing the period immediately following the end of the war and coercive initiatives undertaken to assert control, including re-education camps for soldiers and officials, personal dossiers and government control of medial, schools, and religious organisations; Martin Woollacott, “Forty Years on from the Fall of Saigon: Witnessing the End of the Vietnam War,” The Guardian, April 21, 2015,

20. For these reasons the Tribunal draws no adverse inferences from the lack of specificity and detail in his claims regarding his activities in Vietnam prior to departure.  It accepts for the purposes of assessing the applicant’s protection claims that it is plausible and possible that as a young teenager in the immediate aftermath of the war, being the son of a South Vietnamese soldier, he held anti government sentiments and may have been involved in activities of anti government groups.  On his own evidence and claims, the involvement was low level and the organisation was secret and unofficial. He has not claimed to have come to the attention of authorities in this context.  The Tribunal accepts the applicant may have held anti communist sentiments and was involved in low level protest activity in the aftermath of the war as a teenager.  

21. With regard to his activities in the refugee camp in [Country 1], the applicant’s claims are also not particularly detailed or specific. He refers to being involved in a security group that, among other activities, identified communist spies amongst the arrivals.  He provided the names of other individuals he claims were also in the group and claims he, like them, would be identified by communists he met at the camp. He did not, however name any of these ‘communists’ or refer to any specific individual or individuals who would target him for harm were he to return.  Given the substantial passage of time that has passed which may effect his ability to recollect more convincing details, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that he was involved in a security group that sought out spies amongst the camp arrivals, during the period he was in the refugee camp in [Country 1] in the early 1980’s. 

22. The applicant has since then returned to Vietnam voluntarily on ten occasions between 1993 and 2001, much closer in time to when he was involved in anti government and anti communist actions.  He was not approached or harmed by authorities or any individuals from the camps due to his past actions during those visits.  His conduct in returning on so many occasions also suggests that he did not have a subjective fear of repercussions from past activities or conduct.  The Tribunal has considered his explanation, when this concern was put to him, that he believed he was protected by the Australian government because he was traveling on an Australian travel document, and that he ‘laid low’ during these visits and they were only short, as his purpose was to visit his ill parents, but it does not accept this explains his conduct of returning on so many occasions in this period or the lack of adverse interest in him there. He also mentioned that he looked for ex members of the secret group but could not find them and said he believed he was watched by the police and kept moving from place to place. The Tribunal has considered the applicant’s explanations and evidence and finds that his repeated voluntary returns to Vietnam in the years between 1993 to 2001 without adverse incident, and the grant of tourist visas to him enabling his entry to the country on each occasion, indicates he was not of adverse interest to the authorities due to his past activities or profile in Vietnam or [Country 1].  

23. Given the substantial passage of time and lack of profile of his past activities, the Tribunal is not satisfied there is a real chance the applicant will face serious harm if returned to Vietnam in the reasonably foreseeable future on the basis of his past political actions or activities in Vietnam or because of activities or actions he engaged in at the camp in [Country 1].

    Political activity in Australia

24. The evidence before the Department and Tribunal regarding the applicant’s political activity in Australia is that he attended and participated in annual 30 April rallies and protests against communist singers in various cities including [City 1], [City 2] and [State 1].  On his own evidence he recalled attending several such events in the years from 1986- 1992 and from 1995 until his imprisonment in 2004.  He has provided letters from Vietnamese community leaders [Dr B], [Mr C] and [Mr Z] to support their knowledge of him and his participation at these events, as well as the supporting statements from family members, including his partner [Ms E] who refers to her own family and father’s activism. 

100.   The Tribunal has considered this evidence.  With regard to [Dr B]’s initial letter dated 14 May 2016 the Tribunal noted that he does not indicate personal knowledge of the applicant.  In response to this being raised with the applicant, he invited the Tribunal to take oral evidence from [Dr B] at the hearing, but the Tribunal instead invited a further written statement from [Dr B]. Following the hearing a Statutory Declaration from [Dr B] was provided referring to his earlier statement and confirming his personal relationship with the applicant through his relationship with the applicant’s father in law and family.  The Tribunal has considered this further statement and is prepared to accept its content regarding his personal knowledge of the applicant and his claimed participation at these events. A further Statutory Declaration was also provided from [Mr Z] stating that while he does not know the applicant personally he recalls his attendance at anti-communist rallies and protests in the 80s, 90s and early 2000s in Brisbane prior to his incarceration. Despite some reservations about the reliability of [Mr Z]’s recollections of ‘an acquaintance’ so far back in time, the Tribunal is prepared to accept that the applicant, as a person who left South Vietnam in the 1980’s with anti-communist sentiments, may have participated, alongside many others in the community, in 30 April rallies and other protests in the past.  It finds on the evidence, that his participation was as an attendee only, and low level.  He was not a member of any specific organisation, or involved in organising or recruiting members.

101.   He has not participated in any such activities or events since 2004 because of the circumstances of his incarceration from that time. The Tribunal asked the applicant at hearing about his involvement and knowledge of Viet Tan.  He confirmed he is not a member of the organisation, and his response to what he knew about them was simply that they are anti the communist government.  He indicated he has not followed their activities since being in jail and his only contacts since his incarceration have been his family members.

102.   Having considered the evidence before it, the Tribunal finds the applicant has demonstrated a limited history of political activism in Australia of attendance at annual 30 April events and occasional protests against the Vietnamese Government between 1986 to 1992 and 1995 to 2004.  Since this period, he has been incarcerated in gaol and immigration detention until  the present time.  On his own evidence he has not been involved in any political activism or advocacy since his incarceration in 2004 and demonstrated limited knowledge of the activities of any particular organisation or specific issue since that time. Unlike [Dr B] and [Mr Z] who refer to their ongoing political affiliations with organisations in Australia, and have never returned to Vietnam since they departed, the applicant voluntarily returned many times between 1983 and 2001 and faced no adverse consequences.  Additionally, the evidence submitted by the applicant discloses that his father in law, [Mr O], who fled Vietnam because of his activism during the war and continued his activism in Australia, himself returned to Vietnam to live (see his Statement 24 April 2016), and since his death, the applicant and her children have returned several times for memorial services.  Given the applicant’s claims that his political profile is in part based on his wife’s family’s activism and profile, the Tribunal considers it significant that her father himself returned to live in Vietnam.

103.   The Tribunal finds the evidence does not support a finding that the applicant has a substantial profile as an active organiser of protests or events or anti Vietnamese political leader or activist in Australia. On this basis the Tribunal is not satisfied that he faces a real chance of serious harm if returned to Vietnam in the reasonably foreseeable future on the basis of his political activities in Australia.

Claims of political activity on return to Vietnam

104.   At hearing and in his Statutory Declaration dated 19 December 2020, the applicant says he will continue his anti communist activities if he is returned to Vietnam because he has been an anti-communist all his life and ‘if he is forced to return he will join whatever protest movements are about to help’.

105.   However, given the findings above about his level of anti Vietnamese political activism and advocacy over the past three decades in Australia and lack of significant political profile arising from his history in Vietnam, [Country 1] or Australia,  and multiple return visits to Vietnam in the past, the Tribunal does not accept that the applicant will genuinely engage in political activities upon return that will bring him to the attention of authorities or cause him serious harm. 

106.   The Tribunal accepts the applicant is the son of a former South Vietnamese soldier and may have been involved in low level anti-communist activities as a teenager before he left Vietnam.  It has accepted that may have played a role in filtering out communists in the camp in [Country 1] on route to Australia. Given this background, it accepts that he has long held, and may still hold, anti communist sentiments.  It also accepts he likely feels reluctant and resistant to return to Vietnam to live on a permanent basis, having departed that country 40 years ago, and given his close family ties in Australia.  However, in light of the history of his activities and circumstances here, the Tribunal finds he is not a political activist and is not satisfied that he will genuinely engage in political activities and activism upon return that would attract adverse official attention.  He has participated in very limited anti communist activism in Australia over the past 35 years, limited to attendance at a handful of events almost two decades ago now.  The Tribunal is not convinced on the evidence before it that he has maintained a deep or keen interest in current political issues or movements in Vietnam since 2004. He has previously returned to Vietnam voluntarily on multiple occasions and did not engage while there in any political activities or advocacy that brought him to the attention of the authorities. 

107.   His wife, who claims to come from a prominent anti communist family, has returned to Vietnam since the applicant’s incarceration with their children, for family visit purposes, indicating an ongoing relationship with the country.  As referred to above, the evidence discloses that her father returned to live in Vietnam prior to his death.  The Tribunal has considered the arguments and submissions made by the applicant and his wife that the past visits have been low key and for the limited purposes of visiting elderly and ailing family, they were  travelling on Australian documents and for short periods, and that this is very different to the prospects of going back to live on a permanent basis.  While the Tribunal accepts this, it also indicates that neither the applicant nor his wife have a subjective fear of returning to Vietnam, and are not of adverse interest to the authorities there.

108.   The Tribunal has had regard to country information prepared by DFAT and other sources,[26] including those submitted by the applicant, about the treatment of political activists in Vietnam. DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation and are unlikely to receive a fair trial. It acknowledges that DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.[27]  The US Department of State country report on human rights practices in Vietnam for 2020 also notes that there are significant human rights issues in Vietnam, including ‘unlawful or arbitrary killings by the government; torture by government agents; arbitrary arrests and detentions by the government; political prisoners; significant problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; serious restrictions on free expression, the press, and the internet… substantial interference with the freedom of peaceful assembly and freedom of association; significant restrictions on freedom of movement… inability of citizens to change their government peacefully through free and fair elections’, and ‘restrictions on political participation’. Freedom House’s 2020 Report on Vietnam referred to arrests, criminal convictions, and physical assaults against journalists, bloggers, and human rights activists having continued during 2019 and that Amnesty International reported an increase in the number of prisoners of conscience in Vietnam by roughly 33 percent over 2018.

[26] UK Home Office, Country Policy and Information Note Vietnam: Opposition to the State, September 2018; Freedom in the World 2020, Vietnam, Freedom House; World Report 2020, Human Rights Watch

[27] DFAT Country Information Report Vietnam 2019 – [3.56]

109.   However, having regard to the findings above relating to the applicant’s activities, profile  and commitment to future political activism, the Tribunal is not satisfied that he comes within any profile that would cause him to face a real risk of serious harm of the kind described above for reasons of his political opinion.  Specifically, it does not accept that he is a political or human rights activist, or that he would be engaging in political or protest activity upon return. 

110.   The Tribunal has considered information about the treatment of ex-soldiers of the South Vietnamese Army and their family members and acknowledges that there are reports that family members of former soldiers faced discrimination in the past, but this has lessened over time.[28]

[28] 'Vietnam: CI170217115230482 – South Vietnam Army – History – Treatment of Former Soldiers – Family Members', Country of Origin Information Services Section (COISS), 10 March 2017, CR8DFDCEA87; citing US Department of State Country Reports Vietnam – 2004-2010, with the later US DOS Reports referring to a lessening of such discrimination, to the point that the situation of persons associated with the pre 1975 government or their families are not mentioned at all by the 2010 Report.

111.   The Vietnam Human Rights Network report on human rights in Vietnam for 2019-2020 refers to Vietnam ‘still pursuing a policy of discrimination and stigmatization against supporters of the previous government’. The report indicates that the government continued to apply a profiling policy that ‘still creates great educational, political, and economic inequality, dividing people who supported the previous government and those associated with the victors’.[29] The report refers to a lack of educational opportunity for the majority of the children of former Republic of Vietnam military personnel and government officials, and to discrimination against disabled veterans of the Army of the Republic of Vietnam. The government was reported to have ‘adopted an opposite policy towards Communist cadres and veterans and their families’, with meritorious people enjoying ‘preferential policies due to their service to the revolution’.[30]

[29] 'Report on Human Rights in Vietnam 2019-2020', Vietnam Human Rights Network, 14 May 2020, p.66, 20200521115120

[30] 'Report on Human Rights in Vietnam 2019-2020', Vietnam Human Rights Network, 14 May 2020, p.67, 20200521115120

112.   The Tribunal acknowledges that it has been 40 years since the applicant left Vietnam.  He has a wife, children, siblings and significant extended family ties here in Australia.  Having regard to the above information, it acknowledges that he would feel apprehension and trepidation about returning to live in the SROV after all of this time.  At the same time, he also has a parent and siblings in Vietnam, and he would not be returning without any family support. Despite a prolonged period of incarceration, the applicant has an employment history in Australia and capacity to work in future.  While it accepts that he may face difficulties establishing himself and settling in, given the particular age and stage of life that he is at now, it finds the kinds of discrimination referred to above regarding lack of education and career opportunities are unlikely to lead him to face serious harm of the kind contemplated by that term.  It is not satisfied that the evidence supports a finding that he will be denied accommodation or access to basic services threatening his capacity to subsist; or that he will be denied the capacity to earn a livelihood of any kind for reasons of his association with the former South Vietnamese government, as a family member of a former south Vietnamese army soldier, his political opinion, as a returnee after a long absence, or any other specified reason.

Claims arising from applicant’s criminal convictions, illegal departure,  and as a failed asylum seeker

113.   The Tribunal has considered whether the applicant would face a real chance of being detained or mistreated, amounting to serious harm because of the manner of his original departure from Vietnam, fleeing to [Country 1] and eventually granted a humanitarian visa for Australia and then returning as a failed asylum seeker. The Tribunal has also considered whether the applicant will be subject to serious harm because of his criminal convictions in Australia.

114.   In considering these claims, the Tribunal accepts, given the correspondence sent by the applicant’s representatives to the Vietnamese Embassy in Australia, copies of which were provided with the application, that the authorities may be aware of the manner of his departure and political affiliations at that time and well as his criminal history in Australia and that he would be returning as a failed asylum seeker. 

115.   Country information before the Tribunal indicates that Vietnamese nationals who depart the country unlawfully, including without travel documents may be subject to a fine upon return amounting to between VND3 million (AUD187) and VND 5 million (AUD310).  In practice the implementation of this legislation varies depending on the person and circumstances of the illegal departure.[31] 

[31] DFAT Country Report on Vietnam December 2019, paragraph 5.27, p43

116.   Articles 120 and 121 of the Penal Code state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence.   Organisers of such movements face imprisonment of between five and 15 years, and those found to have committed particularly serious crimes can be imprisoned for 12 to 20 years, or life. Individual travellers face imprisonment of between three and 12 years, or between 12 and 20 years in serious cases.[32]  However, the same source indicates that DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia. The reports states that returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’. [33]

[32] DFAT Country Report on Vietnam December 2019, paragraph 5.28, p43

[33] DFAT Country Report on Vietnam December 2019, paragraph 5.29, p43

117.   The applicant returned to Vietnam on 10 previous occasions in the past and did not face adverse consequences arising from the manner of his original departure in 1981. The Tribunal notes, as indicated earlier, that Australian travel documents he held in the past indicated his nationality as Vietnamese, and he would have provided personal details when he applied for tourist visas to enter the country. 

118.   In light of this and the substantial time that has passed since then, the Tribunal is not satisfied there is a real chance he will suffer serious harm arising from the circumstances of his illegal departure from Vietnam in 1981.  The Tribunal is also not satisfied that he will face serious harm upon return as a failed asylum seeker on the basis of the DFAT information cited above, and specifically the 2016 Memorandum of Understanding.

119.   In relation to the applicant’s criminal convictions, the Tribunal notes the following information.  Article 6 of the Penal Code provides that people who have committed offences overseas, where the sentence has not been served, may be ‘examined for penal liability in Vietnam’.[34] However, country information suggests that in practice this is not enforced. In September 2011, the Department of Foreign Affairs and Trade (DFAT) consulted with the Vietnamese Ministry of Justice and provided the following advice: ‘persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subjected to further trial in Vietnam for the same crimes’. This is confirmed as the position in the current DFAT Country Report (2019).[35]

[34] Penal Code, Socialist Republic of Vietnam, 21 December 1999, CIS1CA3D8B430 

[35] VNM 12377 Return of a Vietnamese National with Criminal Conviction, Department of Foreign Affairs and Trade (DFAT), 15 September 2011, CX272689, DFAT Country Report on Vietnam December 2019, paragraph 4.10, p36 

120.   The applicant has served his sentence in relation to his criminal convictions.  Given this, and the information cited above, the Tribunal is not satisfied there is a real chance he will face serious harm in the form of double jeopardy, or otherwise, relating to his past criminal convictions. 

Consideration of claims cumulatively

121.   Above the Tribunal has concluded the applicant does not face a real chance of serious harm as a result of any of his individual claims relating to his past political activity in Vietnam, his political activity in Australia, his claimed conduct upon return, or on the basis of his associations with the former South Vietnamese government, his criminal convictions or as a long term returnee or failed asylum seeker. The Tribunal has also considered his claims together, and is not satisfied that he faces a real chance of serious harm on the basis of his cumulative profile arising from his claims.

122.   For the reasons given above, and considering his claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary Protection

123.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  On the basis of the findings above regarding the applicant’s background and profile, and its finding that he will not participate in political activities or activism upon return, the Tribunal is not satisfied there are substantial grounds for believing there is a real risk he will suffer significant harm, within the meaning of that term in s36(2A).  Even if he were to experience difficulties establishing himself and settling in after his long period of absence, the Tribunal is not satisfied that financial hardship or other challenges settling in constitutes significant harm as contemplated by s36(2A).  The Tribunal has considered the claim arising on the material before it, of psychological harm to him as a result of being separated from his spouse and children, however while acknowledging that separation would be difficult for him and his family, the Tribunal finds that mental harm resulting from the separation of a family member arising solely from the act of removal of an applicant from Australia to his receiving country does not constitute significant harm.[36]

[36] GLD18 v MHA [2020] FCAFC 2; SZRSN v MIAC [2013] FCA 751.

124.   Considering his claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Meena Sripathy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

at
[accessed 20 January 2021]

at (accessed 17

April 2017).