2013760 (Refugee)

2013760 (Refugee) [2021] AATA 2786 (16 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2013760
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Damian Creedon
DATE:16 May 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 16 May 2021 at 2:28pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – business affected by government affiliated business project – land acquisition – unfair compensation – loan shark – data breach – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65, 91, 424AA, 426A

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant, a citizen of Vietnam, applied for the visa on 30 June 2014. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant’s written claims for protection are contained in a Statutory Declaration[1] and can be summarised as follows:
a.he owned a [Business 1] and a [Business 2] company started [a] project close to his business. The applicant and other villagers objected to this project;
b.he attended a protest against the [project] and was attacked and assaulted by the police. He was arrested;
c.the [project] went ahead and caused damage to the applicant’s business. The applicant was not offered any compensation and his business closed;
d.after the [Business 2] project was completed, the applicant reopened his business. The police began harassing him and accusing him of anti-government opinions. They also extorted money from him from 2007 until 2012;
e.in December 2012, he confronted a group who had begun to load [material] from his business area in order to take it somewhere else for sale. The police attended and sided with the other group. He was beaten by the police. The next day he was accused of hindering a police officer and was threatened with jail;
f.he fears that the police will press criminal charges against him for fleeing Vietnam and because he supports government opposition groups; and
g.his personal information was inadvertently released in a 2014 data breach. This has caused Vietnamese authorities to visit his family, who were told that the Vietnamese government believed that the applicant left so that he could fight against them.
[1] The Statutory Declaration comprises four pages and is dated 12 June 2014; it includes an Interpreter’s Declaration to the effect that the document’s contents have been accurately and completely interpreted to the declarant.
On 21 April 2015, the delegate refused to grant the applicant the visa.
On 29 April 2015, the applicant sought review of the delegate’s decision before the Tribunal (as then established).
The applicant was invited to attend a hearing before the Tribunal, differently constituted, on 11 May 2016. He did not attend that hearing. The Tribunal proceeded to determine the application pursuant to s.426A(1A)(b) of the Act and affirmed the delegate’s decision not to grant the visa.
[In] September 2016, a Judge of the Federal Circuit Court of Australia (FCCA) remitted the matter, by consent, to the Tribunal for reconsideration as it was found that the Tribunal had fallen into jurisdictional error.
The applicant attended a hearing before the Tribunal, differently constituted, on 21 January 2019. He provided supporting documents to the Tribunal on 19 February 2019.
The applicant attended a further hearing before the Tribunal, as then constituted, on 4 April 2019. Further supporting documents were provided. The Tribunal made an oral decision affirming the delegate’s decision at the conclusion of that hearing. On 1 May 2019, the Tribunal provided a written statement of its reasons for decision.
[In] August 2020, a Judge of the FCCA again remitted the matter to the Tribunal for reconsideration as it was found that the Tribunal had fallen into jurisdictional error.
Reconsideration
The applicant was not represented in relation to the review before the Tribunal as presently constituted.
The applicant appeared before the Tribunal on 7 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
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 a protection 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 the applicant 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).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
Material before the Tribunal
Documentary evidence
The applicant provided a number of pieces of documentary evidence to the Tribunal in connection with his review. In particular, the Tribunal has read and had regard to the following material:
a.English translation (accompanying the original) of a “Certificate of Business Registration, Household Business, [Number]” issued by the “P.C. of Ky Anh District Division of Planning”, “Socialist Republic of Vietnam”;
b.Printout from “Google Maps” showing “[Ky Anh], Ha Tinh, Vietnam” and bearing the annotation, in English: “[Business 1]”;
c.Printout from “Google Maps” showing “[Ky Anh], Ha Tinh, Vietnam” and bearing the annotations, in English: “[deleted]” and “[Business 1]”;
d.“Certificate of Appreciation” dated [February] 2016 issued to the applicant by the “[Organisation 1]” for his “meritorious service and participation during the Tet New Year Celebration 2016”;
e.“Award of Excellence” dated [March] 2016 issued to the applicant by the “[Organisation 1]” “for invaluable contribution as a volunteer to the [Bush] Fire Appeal”;
f.“Certificate of Appreciation” dated [March] 2018 issued to the applicant by the “[Organisation 1]” for his “participation during the Tet New Year Celebration 2018”.
g.Several photographs, some annotated, showing the applicant’s [Business 1] building in Vietnam and the [Business 2] operations in the local area.
Oral evidence
The applicant’s oral evidence to the Tribunal broadly conformed with his written claims, however there were certain material changes and additions which will be discussed below.
The applicant stated that he is from [a village in] Ky Anh district, Ha Tinh province, Vietnam. His wife and children are resident in Vietnam; his two eldest children are now ‘grown up’; his youngest, [an age]-year-old son, is currently enrolled in [school] in Vietnam. The applicant has no family in Australia. He does not have working rights here and stated that he is not working.
The applicant left school in [year] after completing ‘year [grade]’ and entered compulsory military service for three years. After he left the military, he returned to his hometown where he worked [as] occupations before commencing his own [Business 1] business in 2003.
The applicant stated that in that year he opened a [Business 1] business at the premises shown in the photographs submitted to the Tribunal. When pressed, the applicant stated that the business was a ‘[a type of business] near [location]’ [details deleted].
The applicant stated that he ran the business successfully from its opening in 2003 until around 2006 when the land surrounding the business was compulsorily acquired by the local authority to facilitate ‘[Business 2]’ on and around the [area] adjacent to the [Business 1] premises. When pressed, the applicant stated that the building itself is still standing and the he remains the owner of the building and the land on which it stands.
The applicant stated that the direct effect of the compulsory acquisition of the land surround his business was the degradation of several improvements that he had made to the area, the destruction of his business and, with it, his livelihood. He stated that he was offered compensation of 22 million Vietnamese Dong[2] but that this amount in no way compensated for his loss.
[2] Approximately AUD$1,250.
The applicant stated that he was unable to appeal the compensation offer because of political corruption between the CEO of the [Business 2] company involved and the provincial government. In particular the applicant claimed that the CEO, upon leaving his position with the [Business 2] company, became the President of the provincial government.
The applicant claims to have protested his situation and to have been arrested by police and detained overnight.
In ‘late 2006’, after the closure of his business, the applicant stated that his loan account with the local bank became due. He claims to have attempted to refinance the loan with the bank, but that his attempts to do so were ‘opposed’ by the local authority and so he had to borrow money from ‘outside’ in order to repay the loan. He claims to have borrowed 100 million Vietnamese Dong[3] from ‘gangsters’ or ‘loan sharks’ in order to repay the bank. He claims the terms of the loan included ‘high interest’ repayments.
[3] Approximately AUD$5,700.
Between 2006 and 2012, in order to try to repay the debt to the ‘gangsters’, the applicant stated that he and his family ‘worked hard’; he ran a [business] from his home (some [number]m from the [Business 1]) and his wife ran [another] business. In 2009 he left Vietnam for a period of time to find work [in another country]. Upon his return he resumed his [business] from home.
By 2012 the [Business 2] operation had moved from the [area] adjacent to the applicant’s [Business 1] and had begun to operate close to, and to directly impact upon, the applicant’s village. The applicant and 11 other village residents raised a complaint with the local authorities. As a result of this action, the applicant claims to have been arrested. He claims to have been hit by police and then let go. He claims that the police threatened to investigate and prosecute him for alleged offences committed in connection with, as he put it, his ‘opposition to the local government’.
The applicant then resolved to travel to Australia. He stated in evidence that he left Vietnam for two reasons: firstly, his concern that he was named by police as a ‘ringleader’ of the opposition group to the [Business 2] operation; and secondly, his fear of the ‘loan sharks’. When pressed by the Tribunal as to this latter fear, the applicant claims that, despite his and his family’s efforts, he was unable to maintain payments to the ‘loan sharks’ and that he had been threatened with violence if he was unable to repay the debt due.
When further pressed by the Tribunal as to what he is afraid of should he return to Vietnam now or in the reasonably foreseeable future, the applicant stated in evidence that he is afraid of two things:
a.firstly, he claims that that the manner of his departure has caused the Vietnamese authorities, in particular the ‘Number 18 Special Police’, to allege that, given his opposition to the local government on land use issues, he is opposed to the national Government of Vietnam; his fear is that he would therefore be arrested and imprisoned upon his return; and
b.secondly, because of the debt he owes to the ‘loan sharks’; he claimed that they would make ‘serious trouble’ for him should he return to Vietnam.
Since arriving in Australia, the applicant claims three events onshore have heightened his claims for protection:
a.firstly, his personal information was inadvertently released in a 2014 data breach by the Department;
b.secondly, while a resident at the Yongah Hills Detention Centre he claims to have been visited and threatened by the Vietnamese ‘Number 18 Special Police’; and
c.thirdly, he has established a connection with the local Vietnamese community in [City 1] and has participated in community events here such that his profile may have been communicated via social media to the authorities in Vietnam and he may be considered a ‘traitor’.
Analysis, findings and reasons
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The events in Vietnam
Overall, the Tribunal found the applicant’s general claims as to his background in Vietnam, his education, employment and business history to be coherent and plausible, and to be consistent with generally known facts. His evidence to the Tribunal on these issues was consistent with his protection visa interview and, save in certain specific particulars which will be discussed, in giving it he did not convey an impression of concoction or recent invention. Where possible, the applicant supported his claims with documentary evidence.
In making its findings, the Tribunal has made allowance for the passage of time and given the applicant the benefit of the doubt where it is reasonable to do so. Accordingly, the Tribunal is prepared to accept that:
a.the applicant’s land and [Business 1] business (or at least the land surrounding and immediately adjacent to it) was compulsorily acquired by local authorities in his home district for [Business 2] activities;
b.as a direct consequence of this acquisition his business and livelihood were adversely affected;
c.he was offered inadequate compensation for the displacement he suffered and the losses to his business and livelihood;
d.the applicant borrowed money from ‘gangsters’ or ‘loan sharks’ at a ‘high’ interest rate in order to refinance an existing loan from the bank; and
e.the debt to the ‘gangsters’ or ‘loan sharks’ remains unpaid and that the applicant has received threats in this regard.
Analysis: land confiscation and loss of livelihood
In respect of the applicant’s claims related to land confiscation and the destruction of his business and livelihood, he gave no real insight into his intended future conduct if he returns to Vietnam, emphasising instead that it would be unsafe for him to do so.
Although the applicant claimed to have a fear of arrest, and by implication imprisonment and mistreatment, if he were to return to Vietnam, the only evidence of this having occurred previously are the two occasions when he claims to have been arrested for protesting the land confiscation and, on each occasion, detained overnight.
He claims to have been ‘hit’ by the police on these occasions, however he offered this evidence only after being specifically pressed by the Tribunal and he gave no further particulars beyond this bare claim. His evidence is that on the first occasion of his arrest, he was released with a verbal warning to not engage in similar behaviour in the future; on the second occasion, some six years later, he claims to have been told that his ‘case’ would be investigated, and that he may be ‘prosecuted’. Despite being pressed by the Tribunal as to why this would be the case, and on what grounds, the applicant stated only that he would be prosecuted for being ‘against the government’. The applicant provided no further or other particulars of his fears in this regard and the Tribunal found his explanation to be vague, speculative and unpersuasive.
The applicant’s claims under this integer relate to issues such as local corruption, land confiscations, and perceived shortcomings in Vietnam’s justice system and the rule of law. These reflect broad socio-economic, political and legal conditions in Vietnam of general application. The Tribunal finds that the applicant does not have a well-founded fear of persecution arising from such general conditions. It does not accept on the available material that he faces a real chance of serious harm; or that the essential and significant reason for any harm would be a reason set out in the Convention or the Act.
Analysis: unpaid debts to ‘gangsters’ or ‘loan sharks’
In respect of the applicant having borrowed money from, and having unpaid debts to, ‘gangsters’ or ‘loan sharks’, there appears to be no nexus between the persecution the applicant fears and the Convention or the Act. Without a link between one of the characteristics of an individual enumerated in the Convention and the Act, and the persecution they fear, a nexus between the persecution of that individual and the Convention is simply not established. Put differently, to fall within the ambit of the Convention and the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, political opinion or membership of a particular social group. None of these reasons apply to the applicant’s claim.
The harm the applicant fears arises from no reason other than his inability to repay his creditors the money he borrowed from them. To the extent that the applicant shares that characteristic with others in Vietnam, it is not an innate or immutable characteristic of the applicant or that group, nor is it fundamental to the applicant’s or any other person’s identity. It arises from the applicant’s own actions; not for what he is but for what he has done.[4] Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted arising from his debts to ‘gangsters’ or ‘loan sharks’.
The events in onshore
[4] See: Ram v MIEA (1995) 57 FCR 565 at 568-569.
Three aspects of the applicant’s time in Australia bear upon his claims for protection: firstly, a data breach by the Department in 2014; secondly, a visit by Vietnamese officials to the [Detention Centre]; and finally, the applicant’s activities as a member of the Vietnamese Community in [City 1].
Analysis: data breach
In respect of the data breach, there is no information before the Tribunal to suggest that details of the applicant’s protection claims were made public. Further, it appears that the information that was made available was publicly accessible for only a short period of time before being removed from online publication. While acknowledging that the data breach was undesirable, there is no evidence before the Tribunal that the breach has created, added or contributed to a risk of persecution of the applicant in his home country. Accordingly, the Tribunal considers the applicant’s fears regarding potential persecution as a result of the breach to be mere speculation not amounting to a well-founded fear.[5]
Analysis: the visit by Vietnamese officials
[5] MIEA v Guo (1997) 191 CLR 559 at 572.
In respect of the visit by Vietnamese officials to the [Detention Centre], the applicant claimed in evidence that these officials were members of the ‘Number 18 Special Police’ who deal with immigration matters. The applicant’s evidence is that, as a consequence of this visit, his family was in turn visited by the ‘local police’ in Vietnam and they were told that the applicant was on a ‘black list’ based on his previous protest actions, that he had now applied for refugee status and that he is a ‘traitor to the country’.
Balanced against this account, the Tribunal put to the applicant, under s.424AA of the Act, the information from the delegate’s decision record that the delegate could find:
…no evidence to indicate that Vietnamese officials undertook the interview process other than for the purpose of identity and nationality verification of those interviewed.
The applicant responded to this information at the hearing by restating his view of the events without further exposition.
Country information available to the Tribunal from the Department of Foreign Affairs and Trade (DFAT) states that, while articles 120 and 121 of the Penal Code of Vietnam provide that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence:
DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the [Vietnamese Ministry of Public Security], 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.
…
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours, and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[6]
[6] DFAT Country Information Report: Vietnam, published 13 December 2019, paras [5.29], [5.31].
Overall, the Tribunal considers the applicant’s account of his interview by Vietnamese officials at the [Detention Centre] to be mere speculation on his part. The applicant’s assertion that the Vietnamese officials were from the ‘Number 18 Special Police’ is uncorroborated and unpersuasive as against the information in the delegate’s decision record that the visiting officials interviewed the applicant only for purpose of identity and nationality verification.
The Tribunal considers that the applicant’s fear that such an interview, thus characterised, could result in prosecution as a returning refugee applicant or a ‘traitor to the country’ is unsupported on the evidence and runs contrary to the DFAT country information extracted above. The Tribunal does not accept the applicant’s uncorroborated evidence that, as a result of the visit of Vietnamese officials to [Detention Centre], his family were approached by ‘local police’ in Vietnam or that he was placed on a ‘blacklist’.
The Tribunal finds that the applicant does not have a well-founded fear of persecution were he to return to Vietnam now or in the reasonably foreseeable future arising from the visit of Vietnamese officials to the [Detention Centre].
Analysis: the applicant’s local community involvement in [City 1]
In respect of his claim to be an active member of the Vietnamese community in [City 1], the applicant stated in evidence that he first joined an organisation known as the ‘[Organisation 1]’ in 2014, and that he has participated in community activities, including the Tet New Year celebrations since that time. The applicant referred to the three written acknowledgements of his contributions to the Vietnamese community, being the certificates of appreciation and the award of excellence referred to at para [29] above.
When asked by the Tribunal to outline his fear of returning to Vietnam on account of his involvement with the Vietnamese community, the applicant stated that, because he attended community events, information about him including photographs would have circulated on social media and been available to the authorities in Vietnam. He stated his concern that:
If you join in the community overseas you fight against the Vietnamese Government.
When pressed as to the nature of his involvement in the community events he stated to the effect that he:
Stays in the back, helps [to] organise the parking and clean up afterwards.
The Tribunal accepts the applicant’s membership of and involvement with the Vietnamese community in [City 1], principally through events organised by the ‘[Organisation 1]’. On his own evidence, however, the applicant has maintained a low profile within the community. There is no suggestion in his evidence that he is either politically active or a vocal opponent of the Government of Vietnam, or that he would be perceived as such.
This, in the broader context of the country information referred to above, leads the Tribunal to conclude that any fear that the applicant holds in respect of his profile as a result of his participation in the Vietnamese community in [City 1] is mere speculation on his part, not amounting to a well-founded fear of persecution.
The cumulative effect of the events
Having considered each of the events in Vietnam and onshore individually, the Tribunal has also had regard to their potential cumulative effect.
Put succinctly, the applicant is seeking to establish a claim that, having twice been arrested by the local police in Vietnam on account of his opposition to the effects of the compulsory acquisition of land upon his business and livelihood (in 2006), and his residence (in 2012) he has been ‘black listed’ as an opponent of the ‘government’ in Vietnam. He claims that the offers of compensation he received were derisory relative to his losses, and that his attempts to seek adequate compensation were frustrated by local corruption.
He claims to have fled Vietnam for fear of being the subject of further investigation by the police and potential arrest because of his protests. Having now been onshore for some eight years the applicant fears that the data breach, the visit by Vietnamese officials and his involvement with the Vietnamese community in [City 1] may have ‘heightened’ his profile with Vietnamese authorities such that his protests are now perceived to be ‘traitorous’ to the country, or that he is an opponent of the government and at risk of prosecution therefor.
While the Tribunal is prepared to accept the applicant’s evidence as to his personal history in Vietnam, in particular the disruption to his business and livelihood as the result of the compulsory acquisition of his land, and his reaction thereto, there is no evidence that any opposition he mounted to these local events will have resulted in his being considered by the authorities to have been ‘against’ the government of Vietnam and at risk of prosecution as a traitor, nor does the Tribunal consider such a claim to be well-founded. For the reasons set out above the Tribunal considers the applicant’s claims in this regard to be mere speculation on his part, not amounting to a well-founded fear; any opposition he raised with authorities was in respect of a local and very narrow issue, not touching upon or concerning the national government of Vietnam by subject matter nor concerning his attitude(s) to the national government, or the perception thereof.
The Tribunal does not consider that the cumulative effect of the data breach, the visit of Vietnamese officials to [the] Detention Centre and the applicant’s involvement in the Vietnamese community in [City 1] will together have altered the character of the applicant’s behaviour (either in Vietnam or in Australia) during his time onshore, or the perception thereof, such that the DFAT country information set out at para [61] above would no longer apply to him should he return to Vietnam now or in the reasonably foreseeable future. The Tribunal finds, therefore, that any fear that the applicant holds in respect of the cumulative effect of these events is mere speculation, not amounting to a well-founded fear of persecution
The Tribunal has also considered the events onshore in the context of the debts owed by the applicant to the ‘gangsters’ or ‘loan sharks’. The applicant made no assertion that the events onshore have exacerbated or altered his situation in this regard, and the Tribunal cannot conceive of a plausible contention that they could have done so.
Conclusions
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that if he were to return to Vietnam now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
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). Having considered the applicant’s claims, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer ‘significant harm’, as that term is exhaustively defined in s.36(2A). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 criteria in s.36(2).

DECISION

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

Damian Creedon
Member

[2021] AATA 2786

16 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal