2014867 (Refugee)

[2021] AATA 579

2014867 (Refugee) [2021] AATA 579 (11 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014867

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Senior Member Dr N Manetta

DATE:11 February 2021

PLACE OF DECISION:  Adelaide

DECISION:

The Tribunal affirms the decision under review.

Statement made on 11 February 2021 at 4:47pm

CATCHWORDS

REFUGEE – Safe Haven Enterprise visa – Vietnam – religion – Roman Catholic – criminal conviction – applicant faced no interest from the authorities – fabricated claims – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

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 seeking a review of a decision made by a delegate of the Minister for Immigration on 29 September 2020 to refuse to grant the applicant, Mr [A], a Safe Haven Enterprise Visa (Class XE) Subclass 790 visa under s 65 of the Migration Act 1958 (“the Act”).

2. The applicant applied for the visa in August 2020. The delegate, whose reasons were before me, refused to grant the visa because, in essence, he or she disbelieved many of Mr [A]’s assertions of fact.

3. Mr [A] attended the Tribunal remotely from immigration detention via video link on 1 and 2 December 2020 to give evidence and make submissions. Mr [A] indicated expressly at a hearing on 10 November 2020 that he did not wish to secure the services of a lawyer or other representative to help him in the presentation of his case.  When the matter came on for hearing on 1 December 2020, Mr [A] initially indicated that, contrary to his earlier statement, he did want time to find a lawyer to represent him.  He then changed his mind and asked for the hearing to proceed as planned. 

4. I satisfied myself at the hearing that Mr [A] was clear in his own mind that he did not want to delay the hearing of the matter in order to seek to secure legal representation.  Having satisfied myself of that fact, I continued the hearing. The hearing was conducted with the assistance of an interpreter in the Vietnamese language.

5. As Mr [A] was self-represented, I shall express myself as concisely and plainly as possible.

   TRIBUNAL’S TASK

6. The Tribunal’s task is to decide whether to affirm the decision under review or whether to set it aside. The proceeding in the Tribunal is known, technically, as a de novo hearing on the merits.  That is, I must decide the matter afresh on the evidence before me. I may set aside the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding the absence of any discernible error in the decision under review; equally, I may affirm the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding an error in the delegate’s reasoning.

7. In this case I have decided to affirm the decision under review. I now set out my factual findings and my reasons for this conclusion.

   FINDINGS OF FACT

8. The gravamen of Mr [A]’s application is that he feared, and continues to fear, for his personal safety because he would be persecuted in Vietnam on his return there because of his religious beliefs.  Mr [A] is of the Roman Catholic faith.  His safety concerns stem from a police-sponsored attack he said took place upon his local Catholic church.  This was followed shortly thereafter by a summons from the police that he present himself at a police station for questioning.  These events occurred, he said, in July 2012.

9. Mr [A] was born on [date of birth] in [the] province Nghe An. He grew up in the village. His mother is still alive, he said, but his father died relatively recently, some months ago. He has [number of siblings]. The entire family lived together in the village for some time but his family has now separated and moved to other parts of the country.

10. Mr [A] was raised in the Roman Catholic faith. He was baptised when he was only a few days old. He attended primary school in the village, [a] Public School. He attended high school but left at the end of Year [number] in the middle of the school year, he said.  This took place at some point in the 1980s, but he was not sure when. He practised his faith regularly through prayers and attendance at Mass. He received the three sacraments of baptism, the eucharist, and confirmation.

11. Upon leaving school in the 1980s, Mr [A] helped his parents on their farm until he married in 1994.  He said that at that point he no longer helped his parents with farming their property. I understood his evidence to be that he worked his [own] farm after he was married – on land that had been given to him by his parents – from 1994 to 2004. His wife assisted him on the farm. They left the farm in 2004 because life was very difficult, he said, and he felt he had to go elsewhere. They moved within the same province in 2004 to the village of [Village 1] in [another] District.

12. Mr [A]’s wife is still alive and living in Vietnam. They have three children together, two boys and girls. The sons were born in [year] and [year] respectively, and his daughter in [year].   In [Village 1], Mr [A] sold [products] for a [living]. He rented a property which comprised a shed where the [product] could be stored. His wife and children all joined him in this enterprise in [Village 1]. He lived in this village, he said, from 2004 onwards.

13. I accept the foregoing account as truthful.

14. Mr [A] said that from 2011 onwards he began to conduct religious education classes for children.  He was elected to this position, he said, by local people because his family was considered to be a model of Roman Catholic family life. He said that he knew enough to teach the children.  The information he needed to impart is passed on from one generation to another, he said. He did not have any formal educational certificate before he began the teaching. He said there were many such teachers.

15. I accept Mr [A]’s account that he is of the Roman Catholic faith. I accept also that he taught religion to children in the village as he claimed.  Mr [A] was able to give a reasonable and coherent account of the essential features of the Roman Catholic faith, which corroborated his account.

16. Mr [A] gave evidence of an attack upon his local Catholic Church. He said that he and others who were involved in religious affairs of the parish had been meeting at the church in July 2012.  Mr [A] was adamant that this was the correct month and year. He did not remember the exact date on which the attack occurred in the month of July 2012, but he was clear that the attack did not occur in 2011, but occurred in July 2012.  

17. I make that point because the application for a protection visa submitted in August 2020 refers to an attack on the local church on [date] July “2001”, later clarified in correspondence by Mr [A]’s then lawyers as a typographical error for “2011”.  Mr [A] was quite clear, however, that the attack occurred in 2012, and that his lawyers had made an error. His evidence in this regard was unambiguous.

18. Mr [A] gave the following account of the attack. He and other parishioners were gathered in the church for a meeting when a group of criminal hoodlums – “gangsters” was the translation given by the interpreter – employed by the police burst into the church. They began to smash statues. He said they numbered some five to seven persons. They were carrying sticks. They began to beat the meeting participants gathered in the church. Mr [A] said he was hit by one gangster, but managed to escape through a window. He ran out and, as he was fleeing, he saw a group of police officers outside numbering 20 to 30. He knew they were police officers because he recognised their uniform and shields.  He was not arrested by the police.

19. Mr [A] said that a few days later he received a summons from the police. The summons required him to attend at the police station.  Mr [A] gave evidence that he feared for his life at this point because he believed the police would attack him if he presented himself at their station. He is sure that the police were involved in the attack on his church. He said that he stayed with his family for only a couple more days before he fled to his brother’s property. His brother was living a long way away, in Vung Tau, [he] said. He said he went into hiding there. He stayed with his brother, he said, between July 2012 and April 2013. In these months, he said he returned home only once, and only then for one night.

20. In the documentary evidence before me supplied on Mr [A]’s behalf is the translation of a Certificate of Training issued to him by the Roman Catholic authorities. The certificate records that Mr [A] completed a refresher course for religious trainers [in] August 2012. The certificate records an issue date of [date] August 2012.

21. I questioned Mr [A] about the certificate because the month in which the training is recorded as having occurred (namely, August 2012) is inconsistent with Mr [A]’s account that he was already in hiding after the attack on the church.  Mr [A] submitted that the certificate was in error. He accepted that it was issued [in] August 2012, he said, but the training had occurred earlier than August and before the attack upon the church. One critical question for me is whether I accept Mr [A]’s evidence in this regard.

22. Mr [A] gave evidence that he stayed with his brother and did not return to see his wife and children until September 2012. I asked him whether he had any contact with his wife in the months when he was away. He said he did have telephone conversations with her, but he never asked her, he said, whether the police had attended their home. I find it strange that Mr [A] would not ask his wife whether or not the police had come looking for him once he had failed to answer the summons that he said he received in July 2012. His explanation to me was that he did not believe his wife would tell him the truth and so he did not ask her.

23. Mr [A] further accepted that he worked in his brother’s [shop] next door to his brother’s home. “[Occupation 1]” is recorded in his application for a visa as an occupation he undertook from [July] 2011 until April 2013.  Again, I note the apparent error in the year, which should read “2012” on Mr [A]’s account.  Mr [A] was not picked up by the police from his brother’s home or business premises. Mr [A] evidently felt he could work openly in his brother’s shop for many months notwithstanding the threat he felt from the police at home.  That is a further strange aspect of Mr [A]’s account.

24. Mr [A] said that he left his brother’s house and returned to the family home in September 2012.  He informed his wife that he had decided to leave given the threat to his safety.  He took the decision not to take his family with him because he said he did not want them involved in the danger.  He said that he felt his wife could manage alone to continue to buy and sell  [product].  He said he stayed one night only before returning to Vung Tau, where he stayed until April 2013.

25. In making my findings of fact, I believe it is appropriate to allow Mr [A] the benefit of any reasonable doubt I might have about the veracity of this account.  I am prepared to assume that there was an attack on the local church as claimed by Mr [A] by hoodlums or gangsters. On his evidence, however, Mr [A] escaped the attack and was fleeing the scene before police arrived. I accept, however, that it is possible that the police, through their investigations, may have found out who was attending the church on that occasion.

26. That said, I do not accept that Mr [A] received a summons in July 2012 to attend a police station. The documentary evidence presented by Mr [A], namely the Certificate of Training, quite plainly contradicts Mr [A]’s evidence that he was in hiding from July 2012 onwards. Mr [A] would hardly have attended religious training whilst in hiding, and he did not suggest he had done so. I do not accept Mr [A]’s account that the certificate contains an error. The certificate clearly records that the training occurred in August 2012. 

27. I do not accept Mr [A]’s evidence that he left and hid at his brother’s because he feared for his life.  This assertion is inconsistent with his working in his brother’s [shop]. I bear in mind that on his account Mr [A] was a father and husband with family responsibilities. If, as claimed by Mr [A], he left his village to hide out at his brother’s home in Van Tau, it must have occurred to him that the police might come looking for him at obvious places (including his brother’s home). Nevertheless, on his account, he was willing to expose himself by working in the adjacent shop. In my opinion, this is inconsistent with his claim that his safety was under serious threat from the police at home.

28. Mr [A]’s account to me that he did not, while away, discuss with his wife over the phone whether the police had attended his family home is inexplicable given the account he gave of his fears for his safety.  I bear in mind that on his account, Mr [A] had fled his village fearing for his safety.  He must have believed that his wife and children could also be under threat. He did not make any arrangements for them to leave the village and, he said, he did not even inquire of his wife whether the police had attended even though this would have been at the forefront of any reasonable person’s mind, if that person were concerned about police brutality and the possibility of the police visiting his or her home.   If Mr [A] had genuinely feared the police would visit, he would have made this inquiry of his wife. 

29. The police did not track Mr [A] track down to his brother’s premises.  Furthermore, Mr [A] said he stayed with his wife only one day in September before returning to Vung Tau, where he stayed with his brother until April 2013.  In that month, he departed Vietnam for Australia on a false passport.  In the lengthy time from September to April, the police did not seek to arrest Mr [A] although he was working at his brother’s [shop], nor was his wife and family visited by police. These facts are not consistent with an active police interest in Mr [A]’s whereabouts.

30. When I consider all these troubling aspects together, I do not accept Mr [A]’s account, even allowing him the benefit of a reasonable doubt.  I accept the documentary evidence presented by Mr [A] is accurate despite his evidence to the contrary. I accept that he may well have moved to his brother’s home and worked as [an Occupation 1], but that move was not undertaken to escape a police threat at home.  I accept that when Mr [A] returned to his village and spoke with his wife, a decision was taken that Mr [A] would leave for Australia in due course. I rather suspect that this decision was taken because Mr [A] wished to secure residency in Australia and support his family from abroad. But whatever the reasons for his departure, I do not conclude that Mr [A] left Vietnam because he feared persecution. 

31. All in all, I have concluded that the version of events given to me by Mr [A] is implausible. As I have said, I have given Mr [A] the benefit of any reasonable doubt.  But I do not regard Mr [A]’s account as credible.

32. Mr [A]’s credibility was further undermined, in my opinion, by the evidence he gave in relation to his offending after his arrival in Australia. Mr [A] was convicted of a serious offence involving the unlawful cultivation of cannabis. Mr [A] disowned his responsibility for this offending in his evidence to me notwithstanding his conviction.  He said he had been duped by the owner of the premises and he did not understand, he said, that he was tending a drug crop even though many hundreds of plants were being grown inside premises, and not in the open air.

33. Had Mr [A] given honest evidence in this regard, I would still have found that his account of persecution in Vietnam was not credible; but I would note that the failure of Mr [A] to be frank to me about his offending in Australia has only served to reinforce my adverse view of the credibility of his account of the reasons for his departure from Vietnam.

    CRITERIA FOR GRANT OF A PROTECTION VISA

34. The conditions for the grant of a protection visa are set out in the Migration Act,1958.

35. Section 36(1A)(b) requires Mr [A] to satisfy the criteria in either s 36(2)(a) or s 36(2)(aa).   If Mr [A] does not satisfy one of these criteria, his application must fail.

36. Section 36(2)(a) requires me to be satisfied that Australia owes protection obligations to Mr [A] as a “refugee”, a concept which is defined in s 5H. On the evidence before me, however, Mr [A] does not answer the description of a “refugee” as defined. As I have rejected Mr [A]’s account, I do not accept that he fears being persecuted on account of his religion as he has claimed.    

37. Equally, I do not believe that there are any substantial grounds for my concluding that as a necessary and foreseeable consequence of his removal from Australia there is a real risk that he will suffer significant harm as defined in subsection (2)(aa). “Significant harm” is defined to mean the death penalty, torture, or being subjected to cruel and inhuman or degrading treatment or punishment. I do not believe Mr [A] meets this criterion.

38. In Mr [A]’s application for a visa, he refers to a fear that he would become a political prisoner because he has opposed the Government with his religious beliefs.  In response to my question as to what he would fear on return to Vietnam, Mr [A] said that he would be viewed as a traitor because of his Catholic activities and because he had escaped Vietnam.  This raises the question of whether I accept that the Vietnamese police or other Government authorities would victimise him on his return because of his Catholic beliefs.  I have already rejected Mr [A]’s submission of targeted or individual persecution. 

39. The most recent DFAT country information does not suggest that there is widespread or automatic repression of Catholicism or those identifying as Catholics.  The DFAT Vietnam country information report of 13 December 2013 summarises the situation as follows:

    “3.24 DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from authorities, although they may still face discrimination from local and provincial authorities. Adherents associated with independent religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.”

40. The Report does acknowledge individual instances where priests, for example, have been prevented from celebrating mass and attending homes for prayers.  That said, the Report’s overall conclusion is summarised in [3.24], quoted above.  I do not believe Mr [A] would face persecution in Vietnam were he to return there and continue instructing children in the essentials of the Catholic faith. 

41. I have also considered whether Mr [A] would face harm on his return as a failed asylum seeker.  This was not put forward to me explicitly by Mr [A] as a ground in support of his application, although I have noted that he said that he feared returning because he would be seen to be a traitor.  The most recent DFAT country information report on Vietnam suggests that Mr [A] would not face a real risk of significant harm as a failed asylum seeker were he to return to Vietnam. The position of failed asylum seekers on return to Vietnam is dealt with specifically at paragraph [5.24] to [5.35] of the Report in terms which do not suggest that there is any serious threat of persecution or harm.  I do not believe, therefore, that Mr [A]’s application to this Tribunal should succeed on this ground.

1. Given my conclusions, I find that Mr [A]’s application for a protection visa does not meet the eligibility criteria prescribed in the Act.

2. Finally, I would note that Mr [A]’s participation in the growing of a drug crop in Australia does not seem consistent with his professed Christian beliefs.  Nevertheless, I am conscious of the fact that even those with strong religious convictions may be drawn into illegal activity, especially where, as I suspect is the case here, earnings are being used to support a family in difficult circumstances.  I have not drawn any adverse inference about the sincerity of Mr [A]’s religious beliefs from the fact of his criminal behaviour in Australia; nor have I concluded from his criminal activity, which admittedly reflects poorly on his character, that his evidence to me about his experiences in Vietnam is less likely to be true for that reason.

3. Mr [A] made a heartfelt submission in closing that he wanted to stay in Australia and prove himself to be a worthy citizen. He begged pardon for his past offending. I accept the sincerity of that submission, but, as I said at the hearing, my decision does not involve the question of whether Mr [A] would, or would not, make a contribution to Australia in the future. My decision concerns only the question of Mr [A]’s eligibility for a protection visa under the Act.

   FORMAL DECISION

4. The Tribunal affirms the decision under review.

   Dr N Manetta
   Senior Member