2015144 (Refugee)

[2021] AATA 3229

2015144 (Refugee) [2021] AATA 3229 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015144

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jason Pennell

DATE:21 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

Statement made on 21 May 2021 at 9.52am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Christian – imputed political opinion – anti-government – failed asylum seeker – land dispute – home forcefully acquired by authorities – assaulted by gangs – Australian criminal record – involvement with people smuggler – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Liu v MIMA [2001] FCA 257
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Darboy [1998] FCA 931
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
Wang v MIMA (2000) 105 FCR 548
X v MIMA [1999] FCA 697

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 7 October 2020 to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (‘protection visa’) under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 30 April 2020. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. The applicant appeared before the Tribunal on 11 December 2020 and 21 January 2021 to give evidence and present arguments. The applicant was detained at [named] Immigration Detention Centre. As a result, the hearing was conducted via video conference using the Microsoft Teams program. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. As such, the hearing was held via conferencing facilities using the Microsoft Teams program.

4. The hearing was assisted by an interpreter in the Vietnamese and English languages.

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

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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 (‘the Department’), 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.

APPLICANT’S CLAIMS AND EVIDENCE

Identity and country of reference

1. The applicant stated in his application for a protection visa that he was born on [date] in Binh Thuan City, Phan Thiet Province, Vietnam.[1] The applicant arrived in Australia [in] April 2013 with two siblings without any documentation as to his identity, nationality and citizenship.[2]  On 2 June 2013 the Department conducted an entry interview with the applicant at which he stated his name, the date and place of his of birth and that he was a citizen of Vietnam consistent with that as stated in his application for a protection visa.[3] The applicant has subsequently provided the Department with a copy of his Australian Immigration Status Card (IMMI card) and a Queensland driver’s licence that lists his date and place of birth as stated in his application for protection. The applicant has not provided documentation in relation to his identity from Vietnam and has consistently maintained to the Department that he does not have any such documents.

   [1]    Protection visa application form, department file [number], Doc ID [no]

   [2]   Delegate’s Protection Visa Decision Record dated 7 October 2020 at p.2; Dept File [number], Doc ID [no]

   [3]    ibid

2. The Tribunal notes that the applicant has been charged with several criminal charges in Queensland for which he has been sentenced by the court. In addition, on 7 December 2018 this Tribunal (differently constituted) affirmed the delegate’s decision to cancel the applicant’s Class WE Subclass 050 (Bridging (General)) visa. The applicant has consistently used the same identity details as described in his protection application for all proceedings.   

3. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, based on the applicant’s own evidence, the Tribunal finds that the applicant is a citizen of Vietnam and that as such his protection claims will be assessed against Socialist Republic of Vietnam as the country of reference and his 'receiving country'.

Migration history

1. The applicant arrived in Australia [in] April 2013 via [location] as an unauthorised maritime arrival upon a vessel named [codename] and has not departed since. He was granted a Humanitarian Stay (Temporary) (class UJ) (subclass 449) visa on 18 September 2014 which ceased on 25 September 2014.[4]

   [4]    Department ICSE records

2. The applicant first lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) visa (‘SHEV’) on 5 October 2016 but withdrew the application on 15 June 2017 before a decision was made.[5]

   [5]    Department file [number], Doc ID [no]

3. The applicant lodged a subsequent SHEV application on 20 June 2017[6] and was granted an associated Bridging visa E (‘BVE’), which was cancelled on 22 November 2018 due to the applicant’s criminal convictions. The applicant lodged a review of the decision to cancel the BVE to the Administrative Appeals Tribunal (differently constituted), who affirmed the decision on 7 December 2018.[7] The Federal Court found the SHEV application to be invalid.[8]

   [6]    Department file [number], Doc ID [no]

   [7]    Tribunal decision record, case number 1835389

   [8]    DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

4. On 30 April 2020 the applicant lodged a further SHEV application,[9] which was refused by the delegate on 7 October 2020.  

   [9]    Department file [number], Doc ID [no]

5. Prior to arriving in Australia, the applicant has indicated that he has not travelled outside of Vietnam.

Applicant’s Evidence

1. The applicant was born on [date] in Binh Thuan City, Phan Thiet Province, Vietnam. The applicant claims that he can speak, read and write in Vietnamese. In his application for a protection visa he claims to be of Vietnamese ethnicity and a Catholic.[10]

   [10] Protection visa application form, department file [number], Doc ID [no]

2. The applicant’s evidence was that his mother remains living in Vietnam. He has two brothers who now reside in [Australia]. The applicant indicated that he has no contact with any relatives outside of Australia. The applicant claims that his father is deceased and his mother, from whom he is estranged, has re-married and resides in Vietnam. In his application the applicant claims to have a spouse or de-facto partner who is an Australian citizen.[11] The applicant made no mention of any spouse or de-facto partner during the hearing.

   [11] SHEV application, department file [number], Doc ID [no]

3. He claims that after he left school, he tried looking for work in the construction industry as a labourer. His evidence was that he worked as a fisherman in Vietnam prior to departing for Australia in 2013. Since arriving in Australia, he has worked [in a range of fields]. The applicant has stated that he completed middle school level education in [year] in Vietnam.[12]

   [12] Protection visa application form, department file [number], Doc ID [no]

4. The applicant claimed that he lived in Vietnam with his parents in a village known as [name] Village in the [name] District for approximately 12 years. However, the applicant’s evidence was that after his father died his mother remarried and went to live with her new husband. He was not able to tell the Tribunal where she lived. As a result, the applicant was left alone with his two brothers. They continued to live in the house until such time as they were forced out by the authorities.  

5. The applicant claims that in or about 2012, the house they were living in was dismantled and taken by others for the purpose of clearing the land. His evidence was that the house belonged to his mother and father, but when his mother left, she took all the papers. The applicant’s evidence was that three men came to the applicant’s home asking him to sign a document as compensation for the land. He refused and as a result he claimed that he was beaten by a gang hired by the police. He claims that three men pinned him down on the ground and one of them used a club to hit him on the leg. The applicant’s evidence was when he was away on a fishing trip the authorities dismantled the home and turned it into a road. The applicant and his brother did not receive any compensation. He claims that he wrote a complaint to the authorities but did not receive a reply.

6. The applicant claims that if he returns to Vietnam he will be harmed by the authorities. The applicant claims that he abused the police officer in charge of the village, known to the applicant as [Officer A], over the telephone. As a result, he claims that the police officer will harm him if he returns to Vietnam. The applicant claims that if he is returned to Vietnam, he would have to return to obtain the identification papers for the land. As a result, he would be identified by the authorities and harmed by those who took the property including the officer in charge, [Officer A].   

7. The applicant’s evidence was that he came to Australia because life in Vietnam was difficult. He claimed that he came to Australia because of his religion as a Christian. The applicant’s evidence was that it was difficult to attend Church because it was a long distance from his village. As a result, he attended bible classes in a local house. He claimed that most of the people in his village were Buddhist. As a result, a lot of pressure was placed on him not to attend his bible classes. He claimed that the authorities stated that they were not allowed to meet and as such they were beaten. He claims that eventually his classes were stopped by the village members.

8. He claims that if he returns to Vietnam the Officer in charge in his village will not leave him alone. 

9. The applicant claims that he converted to Protestantism in or about January 2020.

10. The applicant claims that he will be harmed if he is returned to Vietnam because he left the country illegally. He claims that the authorities will want to know how he got the money to travel to Australia and will want him to pay them money as a bribe. Otherwise he claims that because he arranged and encouraged his brothers to come to Australia with him, that he will be charged with the crime of organizing, brokering illegal emigration[13] or forcing another person to illegally emigrate under the Vietnamese Criminal Code.[14] 

    [13] Article 349 of the Criminal Code Vietnam

    [14] Article 350 of the Criminal Code Vietnam

Claims for protection and supporting documentation

1. The applicant first submitted claims for protection when he applied for a SHEV on 5 October 2016.[15] The applicant’s claims are as follows:

   [15] Protection visa application form, department file [number], Doc ID [no]

   Why did you leave that country (or countries)?

   ‘The government forcefully took our family house and demolished it without our consent for the purpose of developing the area for the public. I was threatened and beaten by gangs hired by the local police in order to make us give up our home. Because my mother ran away from me and my brothers, we were left without any legal documentation that gives us authority to live in our house. Now that they have destroyed our house, my brothers and I have nowhere to go.  

   What do you think will happen to you if you return to that country (or countries)?

   ‘I fear that the government will put me and my brothers into prison and harm us for having illegally travelled overseas. Please see statutory declaration to be prepared with my lawyer for further details.’

   Did you experience harm in that country (or countries)?

   ‘Yes. I was physically assaulted by gangs hired by the police and threatened me to vacate our family home. There were about four of them. Three of the men pinned me down on the ground and one of them used a club to hit me on my leg. Prior to my house getting demolished without our consent, I had to attend several interviews with the authorities. During these interviews, I was threatened. They said that if my brothers and I do not vacate the house, they would use force against us and that our refusal to comply with their demands will mean we are acting against the law. Please see statutory declaration to be prepared with my lawyer for further details.’

   Did you seek help within the country (or countries) after the harm?

   ‘No. As the government authorities were causing the harm against me, I could not seek help from anyone. My brothers and I did not have anyone else to ask for help as we only have each other. We also could not get any help from the community as we did not have the money to bribe them. Please see statutory declaration to be prepared with my lawyer for further details.’

   Did you move, or try to move, to another part of that country (or countries) to seek safety?

   ‘No. My brothers and I did not have anywhere to go as there were no family members or friends capable of helping us. We also did not have the money to seek help from others in the community or move to other parts of the country. Please see statutory declaration to be prepared with my lawyer for further details.’

   Do you think you will be harmed or mistreated if you return to that country (or countries)?

   ‘Yes. I fear that I will be placed in jail because I left the country illegally with my two brothers. The authorities will use violence against me once they take me away. Please see statutory declaration to be prepared with my lawyer for further details.’

   Do you think the authorities of that country (or countries) can and will protect you if you go back?

   ‘No. The government will not protect me because they are the ones who have taken away my home and have caused harm against me and my brothers. I tried to negotiate with them, but they insisted on telling me to move. Please see statutory declaration to be prepared with my lawyer for further details.’

   Do you think you would be able to relocate within that country (or countries)?

   ‘No. My brothers and I cannot relocate because the authorities will track us down upon our arrival to Vietnam. I am aware that there are gangs that secretly work for the police to track down returnees. They do not wear uniforms and there are many of them dispersed around the country. Please see statutory declaration to be prepared with my lawyer for further details.’

2. The delegate summarised the applicant’s claims as follows:[16]

   [16] Department decision record, Tribunal file, Doc ID no: 7735513

   ·The applicant was born in [location], Vietnam.

   ·When he was 18 or 19 years old his father died, and two years later his mother left, after remarrying. He has two younger brothers.

   ·After his mother left the family home the applicant needed to support his two younger brothers. He continued to work as a fisherman, a job he had done since he was 15 or 16 years old.

   ·After his mother left, the middle brother also worked in Ho Chi Minh city. The youngest brother was a student at school.

   ·The applicant’s youngest brother was doing well at school but was bullied due to their religion (Catholic Christian), and because people thought he was gay.

   ·In Vietnam Christians are discriminated within society, and he believed his youngest brother was not treated fairly because of his religion, despite doing well.

   ·His brother later became sick and needed to stay at home.

   ·In around 2009 or 2010 the police came to their house over a dispute regarding their land. The land was to be taken for public use.

   ·They were told they must vacate the house, and were offered 25 million dongs, about AUD 2000 as compensation.

   ·This was not enough money for them to move to another place and the applicant was barely making enough money to look after his brothers.

   ·In 2010, when they refused to move out, they were sent letters to report to the authorities.

   ·When he reported he was told if they did not vacate the authorities would use machinery to demolish the house.

   ·The police would come to the house and measure it. The applicant tried to stop them, however whenever the applicant got in the way they would beat him with batons.

   ·The applicant believed that they could not live under such oppression.

   ·He had heard of people departing the country by boat. He gathered all the money he had and borrowed some money from the owner of the fishing boat where he used to work and raised 30 million dongs. This was not enough, however.

   ·The applicant needed to beg the people to allow him and his brothers onto the boat, offering to cook and work on board.

   ·The applicant states they would have been unable to relocate elsewhere in Vietnam as they would have faced the same discrimination anywhere, they went.

   ·They would need to present their identity cards anywhere they moved to and the authorities would know about their backgrounds. He also had no kind of family or support elsewhere in the country.

   ·The applicant fears he will be arrested if he returns to Vietnam as they have experienced harm from the local police in the past.

   ·He has heard from neighbours that had left the country and returned as failed asylum seekers that they were arrested and assaulted when they were detained.

   ·The applicant fears the same thing will happen to him if he returns, that is being arrested and tortured because they left the country illegally. Returned asylum seekers are treated badly by the government although the government denies this.

   ·The applicant states he has never had any identity documents as far as he knows. His mother may know where his documents are, but he has not had contact with her since she abandoned them.

1. The applicant has provided the following material to the Department:[17]

   (a)Applicant’s Evidence of Immigration Status Card, date of expiry: August 2019.

   (b)Applicant’s Queensland driver license, date of expiry [November] 2018.

   (c)Country information relating to Vietnam from the US Commission on International Religious Freed Annual Report 2017.

   (d)A statutory declaration made by the applicant, declared on 15 June 2017.

   [17] Department file [number], Doc ID [no]

2. The applicant’s migration agent provided the following additional material to the Department via an email on 20 September 2020:[18]

   [18] Department file [number], Doc ID [no]

   (a)Country information reports on Vietnam by Open Doors dated 20 September 2020 relating to the persecution of Christians in Vietnam.  

   (b)Letter of support made by Senior Pastor [B] of [Church 1] dated 19 September 2020.

   (c)World Report 2019 by ‘Human Rights World’ including country information relating to Vietnam.

   (d)An article from Christianity Today titled ’10 Persecuted Christians Chosen by the State Department to Share Their Stories with the World’ accessed on 20 September 2020.

   (e)An article from Mission Network News titled ‘Christians face increased persecution in Vietnam’ dated 24 October 2017.

   (f)An article from ABC News titled ‘No Anzac Day ceremony at Vietnam’s Long Tan memorial this year, DFAT says’ dated 9 March 2017.

   (g)An article from ABC News titled ‘Long Tan: Vietnamese authorities cancel 50^th anniversary commemoration event’ dated 18 August 2016.

   (h)An article from The Guardian titled ‘Vietnamese asylum seekers forcibly returned by Australia face jail’ dated 24 May 2016.

   (i)An article from Shira Sebban titled ‘Interview with SBS to launch our latest campaign to help a Vietnamese failed asylum seeker family’ published 2 August 2018.

   (j)An article from ABC News titled ‘Asylum seekers who came on boats to Australia jailed in Vietnam, advocacy group says’ posted 14 November 2016.

   (k)An article from The Sydney Morning Herald titled ‘Turned back by Australia, Vietnamese recognised as refugees in Indonesia’ dated 11 June 2017.

   (l)An article from Global Briefing Report Human Rights Feature titled ‘Despite Assurances, Vietnam Arrests Returned Asylum Seekers’ accessed 20 September 2020.

   (m)Articles of the Criminal Code of Vietnam dated 27 November 2015.

   (n)DFAT Country Information Report for Vietnam dated 13 December 2019.

3. The applicant’s submission outlining his protection claims on 1 October 2020[19] was summarised by the delegate as follows:

   [19] Department file [number], Doc ID [no]

   (a)The applicant is at risk of facing criminal charges as he made his two younger brothers leave Vietnam illegally and travel to Australia.

   (b)The applicant contacted the boat owner and paid money for his brothers so that they can be on board to Australia.

   (c)He did not have enough money to pay for his trip, so he offered working on the boat because he has sea experience working as a fisherman.

(d)The applicant has experienced past harm due to his former Catholic religion. The government has prevented the applicant and other Catholics from gathering to practice their religion.

(e)On one occasion the applicant was hit by local authorities whilst practicing his religion.

(f)As a Born-Again Christian, he submits the Vietnamese government controls and causes difficulty to Christians practising their religion.

(g)The applicant fears harm from a local government officer, [Officer A].

(h)During the land dispute in 2008, the applicant was offered a low compensation amount by the government for the land. The applicant refused to move from the house and police came with a group of hired gang members who threatened the applicant. He was assaulted during the encounter.

(i)During the scuffle between the applicant and police, the applicant pushed one of the group members. [Officer A] threatened to put the applicant in prison for obstructing public officers.

(j)While in Australia, the applicant needed identity documents to submit to the Department. He asked old neighbours in Vietnam, but they refused.

(k)The applicant contacted the local police officer, [Officer A], asking for the issuance of his identity documents. However, this was refused. In anger, the applicant verbally offended [Officer A] which he later regreted. [Officer A] told the applicant that the moment the applicant sets foot back in Vietnam “his life is gone”.

(l)If the applicant is returned to Vietnam:

·        The government will send him back to his previous local authority where they have his record.

·        If the applicant wants to relocate, he needs to obtain identity documents and will face [Officer A] who oversees the residential area.

·        The applicant will need to ask for compensation for the demolition of his house because the applicant and his brothers are entitled to that money. However, this may cause problems for him.

·        The applicant faces harm for his illegal departure from Vietnam.

·        He faces criminal charges for forcing other persons to illegally emigrate from Vietnam.

·        He fears harm for being a Christian.

·        He fears harm from local government officer, [Officer A].

COUNTRY INFORMATION

1. In accordance with the Ministerial Direction No. 84 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’). The Tribunal has referred to the DFAT report on Vietnam dated 13 December 2019 (‘DFAT Report’) to those parts of the DFAT Report reproduced in Annexure ‘A’ herein.

ASSESSMENT OF CLAIMS AND FINDINGS

1. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Act.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In this case the applicant appeared before the Tribunal via video link to give evidence. Nevertheless, the Tribunal is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. 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. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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 the statutory elements are made out. A decision-maker is not required to make the applicant's case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[20] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[21]

   [20] s.5AAA Migration Act 1958.

   [21]   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.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[22] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[23] However, such a benefit should 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 Accepted facts

[22]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at 482

[23]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

1. Having considered the applicant’s claims and the relevant country information the Tribunal accepts and finds that the applicant:

   (a)was born on [date] in Binh Thuan City, Phan Thiet Province, Vietnam.

   (b)has two brothers with whom he arrived in Australia [in] April 2013.

   (c)father is deceased. His mother has remarried and is estranged from the applicant.

   (d)the applicant worked as a fisherman in Vietnam.

Refugee

Applicant’s Relevant Grounds

1. The applicant’s claims fall within the scope of s.5J(1)(a) of the Act.[24] That is, by reason of his race, religion, nationality, membership of a particular social group or political opinion. The applicant submits that he will be persecuted if he returns to Vietnam by reason of his religion as Christian. The applicant’s religious activities as claimed potentially may give rise to an imputed anti-government political opinion. Further by reason of the applicant’s claimed land dispute and of being a failed asylum seeker may give rise to him being imputed with an anti-government political opinion. 

   [24] Applicant’s submission dated 29 July 2020

2. The applicant claims to hold a well-founded fear of persecution by reason of his religion as a practicing Christian.[25]

   [25] The applicant claims as a Christian include him being a Catholic and his involvement in a Protestant church

3. The scope of ‘religion’ was considered in MIMA v Darboy,[26] within the context of the Convention. In this case the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

   The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

   [26] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22]).

4. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[27] as:

   ‘71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’

   [27] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]-[73] >

   The Tribunal accepts that the applicant’s religion falls with the scope of s.5J(1)(a) of the Act. The applicant claims that because of his religion and because of the land dispute, he will be imputed as holding an anti-government political opinion. For the purposes of s.5H(1) and s.5J(1) of the Act a political opinion need not be an opinion that is actually held by the refugee. It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor.[28] In Saliba v MIMA the Court held:

   ... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[29]

   [28]   MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416, 433.

   [29]   Saliba v MIMA (1998) 89 FCR 38 at 49.

5. In Applicant A v MIEA Gummow J distinguished ‘political opinion’ from the other four refugee grounds, noting that those of a particular race, or nationality, or who are adherents of a particular religion, might be said in each case to be members of a particular social group, but that a person may not be a member of any group but still fall within the definition by reason of the fear of persecution for reasons of political opinion:

   Political opinions ... may be diverse, imprecise, and even idiosyncratic. Thus a refugee may be classified as such if that person is outside the country of nationality owing to a well-founded fear of being persecuted for reasons of political opinion and, owing to such fear, may be unwilling to avail himself or herself of the protection of the country of nationality. That refugee may not be a member of any group but still fall within the definition by reason of the fear of persecution with a view to repression or extirpation of the political opinion adopted by that person.[30]

   [30]   Applicant A v MIEA (1997) 190 CLR 225 at 284. See also X v MIMA [1999] FCA 697 at [32].

6. In this case, for the reasons expressed below, the Tribunal has some reservations about the applicant’s evidence concerning his claimed land dispute. Nevertheless, the Tribunal accepts that as a result of the land dispute be may have been imputed as holding an anti-government sentiment as claimed and as a failed asylum seeker pursuant to s.5J(1)(a) of the Act as claimed. Although for the reason expressed below the Tribunal has rejected his claims and found that there is no reach chance that he would be seriously harmed by reason of being imputed with any political opinion as claimed.  

Applicant’s well-founded fear

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

2. In Chan v MIEA[31] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[32]

   [31] (1989) 169 CLR 379 at 396.

   [32] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.

4. To hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[33] stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [33]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

5. In MIEA v Guo, the Court stated that:[34]

   ‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [34]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

6. In this case, the Tribunal accepts the applicant’s evidence that he departed Vietnam illegally by boat. Therefore, in such circumstances and the fact that he has made multiple SHEV applications, the Tribunal accepts that he holds a subjective fear of persecution if he is returned to Vietnam. However, having considered the available country information and the applicant’s own evidence to the Tribunal, for the reasons expressed below the Tribunal does not accept that the applicant has a well-founded fear of persecution if he is returned to Vietnam on an objective basis.

Applicant as a Catholic

1. The applicant’s evidence to the Tribunal in relation to his faith was vague and lacking in any specific details. Nevertheless, he has claimed that he experienced harm in Vietnam because of his Catholic religion. In addition, he claims that the Vietnamese government controls and causes difficulty for Christians to practise their religion. He claims that he was prevented from meeting with other Catholics for the purposes of attending Church and practicing their religion. He claims that on one occasion he was hit by local authorities while attempting to attend Church. The applicant did not provide any specific details as to how and when he was prevented from attending services or meeting with fellow Catholics. In addition, he did not provide any specific details as to when or how he was assaulted as claimed.

2. The country information reports Catholics are generally able to practice freely at registered churches.[35] It is reported that Vietnam has the fifth largest Catholic population in Asia, (after the Philippines, India, China and Indonesia) constituting approximately 7.0% of the total population.[36] The country information reports that due to the inconsistent enforcement of national laws in remote and/or areas with large minority ethnic population, there has been an increase in the number of independent ‘house churches.’ This appears not to be relevant to the applicant’s province of Bình Thuận which is located on the southeast coast in Vietnam (close to Ho Chi Minh City). Its local Catholic diocese of Phan Thiêt, has approximately 147,000 Christian believers (13.3% of the population), 80 priests and 64 parishes.[37]

   [35] DFAT Report at p.22

   [36] factsanddetails.com/southeast-asia/Vietnam/sub5_9d/entry-3378.html

   [37] >

   Nevertheless, the country information states that the authorities do not permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytization.[38] Nevertheless, its reported that the Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances and environmental disasters.[39] Several Catholics who have been involved in political activism have been arrested while others have left the country.[40] In addition it is reported that during 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, it was reported that there was a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by the Vietnamese authorities.[41] The Catholic community has also been affected by incidents of land appropriation and destruction of property claimed by the Catholic Church.[42]

   [38] DFAT Report at p.22

   [39] ibid

   [40] ibid

   [41] Op Cit at p.23

   [42] ibid

1. Nevertheless, the country information[43] states that Catholics who belong to registered churches who are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the government and are politically active are said to face a moderate risk of harassment from authorities, while Catholics belonging to house churches are likely to come under surveillance by authorities. In this case there was no evidence for the applicant that he was politically active. For the reasons expressed below the Tribunal does not accept that the land dispute as claimed would constitute the applicant being politically active so far as his faith is concerned. The applicant’s evidence was that he had challenged officials who had attended his premises for the purposes of removing him and his brothers from their home. In addition, he claims that he has attempted to obtain the title deeds of the property for the purposes of seeking compensation from the government. While his actions to attempt to save his home may have placed him in direct conflict with the authorities, it is not evidence of him being politically active in the name of his religion. That is, there is evidence that on behalf of his faith he had challenged the policies or authorities of the government. As such as a practicing Catholic belonging to a registered church who was not politically active, based on the available country information, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Vietnam.

   [43] ibid

2. However, the applicant’s evidence was that he had been assaulted by local Buddhists and blocked from attending church gatherings for the purposes of his religion. As a result, he claimed that he attended a house church at which he attended bible readings. For the reason expressed below the Tribunal does not accept that the applicant was assaulted and blocked from attending church by locals Buddhists. Nevertheless, accepting that he did attend the house church as claimed for bible readings, then based on the available country information, the Tribunal finds that he will likely come under surveillance by the authorities as a result of attending the house church bible readings. However, as a person who has no political connections or agenda and has not been politically active, based on the available country information, the Tribunal finds that there is no real chance that he will be seriously harmed by the authorities. As such, based on the available country information Tribunal finds that there is no real chance that the applicant will suffer serious harm from the authorities if he is returned to Vietnam because of his Catholic faith.

Applicant as a member of the Vietnamese United Revival Ministry Inc

1. The applicant now claims that he is born again Christian having joined the Vietnamese United Revival Ministry Inc (VURM) while in detention. The delegate’s decision[44] notes that the applicant now claims that he is a born again Christian and that he has a burning desire to share his faith with others. The applicant confirmed to the Tribunal that he had become a member of VURM and that he had a desire to express his Christian faith. The applicant did not provide any evidence to the Tribunal as to how he would express his faith in Vietnam, although he did claim that he would try and help others who were on the wrong path.The applicant provided a letter from Senior Pastor [B] dated 19 September 2020[45] in which the Pastor states that the applicant studies the bible each week and attends a church prayer meeting Sunday Service online. Therefore, based on the applicant’s own evidence and the letter by Senior Pastor [B] the Tribunal accepts that the applicant has joined the VURM as claimed. Senior Pastor [B]’s letter makes no mention of the applicant’s desire to express his Christian faith as claimed. There was no evidence of the applicant proselytising his faith prior to his departure for Vietnam or upon his arrival in Australia. In addition, the applicant did not provide any evidence that he would proselytise his faith upon his return to Vietnam. As such the Tribunal finds that the applicant would not express his faith in Vietnam in a way that would bring him to the attention of the authorities.

   [44] Delegate’s Protection Visa Decision Record dated 7 October 2020 at p.7; AAT file Doc ID No.: 7735513

   [45] Letter for Senor Pastor [B] dated 19 September 2020

2. The country information[46] states that members of official protestant churches are generally able to conduct religious activities without significant government inference.  It is reported however in provinces such as Quang Binh, Bac Giang, Bac Ninh, Ha Giang and Hoa Binh the authorities have prevented several officially recognised Protestant groups from registering their organisations.[47] A number of local authorities in the Central Highlands of Vietnam (provinces of Gai Lai and Kon Tum) have pressured newer and smaller congregations to join larger and more well established congregations. This has been thought to be unreasonable as many of the small congregations involve certain ethnic groups which have differing cultural practices.[48]  In addition some independent protestant groups have reported harassment from local authorities to cease religious activities on the basis that they do not comply with the registration requirements. It is reported that in April 2018 police in Nghe An Province disrupted a Hmong worship group of the government sponsored Evangelical Church Vietnam on the basis that it was not property registered. In addition, in June 2018 Ministry of Public Service sent an order to the police in Tra Vinh Province not to allow independent protestants to worship or practice baptism. In this case the applicant has provided a letter from Senior Pastor [B] which indicates that the applicant has joined the VURM. It was not made clear to the Tribunal what involvement the VURM had in Vietnam. There was no evidence that it was a registered Church in Vietnam. Therefore, as a member of the VURM, the Tribunal accepts that if he is returned to Vietnam, the applicant would attend an independent protestant church. The country information[49] reports that adherents to independent protestant churches face a moderate risk of harassment from the authorities which is likely to include surveillance. Those who are perceived to have challenged authority or the interests of the government (particularly through activism) face a moderate risk of harassment from the authorities, which may include arrest or violence.  Save for the land dispute, there is no evidence that the applicant has been politically active or been perceived as challenging the authority or interests of the government. Therefore, based on the available country information the Tribunal accepts that the applicant will face moderate chance of harassment if he returns to Vietnam which will include surveillance but not arrest or violence. As such the tribunal finds that the any harassment the applicant faces because of being a member of an unregistered protestant church would not amount to significant physical harassment as required by s.5J(5) of the Act. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Vietnam as a result of being a member of an unregistered protestant church or as a result of being a member of VURM.

Societal discrimination against the applicant as a Christian

[46] DFAT Report at p.23

[47] ibid

[48] ibid

[49] ibid

1. Finally, the applicant claims that as a Christian he and his family suffered societal discrimination within the community. He claimed that a lot of people in his village were Buddhists who placed pressure on him not to practice his faith. He claimed that because it was some distance to Church and because of pressure from local Buddhists, he attended bible classes in a local house.

2. The applicant did not provide any specific evidence as to how the local Buddhists placed pressure on him as claimed. However, the Tribunal notes that the country information that refers to the fact that the Constitution of Vietnam officially provides for freedom of religion however, in practice the government imposes a range restrictions on the practice of religion such as registration requirements, control boards and surveillance. All religious groups must seek approval and register with the government, including the Buddhist religion. For example, the government controls the number of Buddhist monks and requires that they be approved by and work under the officially recognized Buddhist organization, the Vietnam Buddhist Sangha (VBS).[50] Therefore, while the Tribunal is prepared to accept there may be some societal discrimination in Vietnam, the Tribunal was not able to find any country information which indicated that Christians were subjected to discrimination by other religious groups. The country information reports[51] that there are no known reports of interfaith societal discrimination or violence based on religion in Vietnam,[52] For example its reported that in Ho Chi Minh City and other Vietnamese cities, it's common to see ecumenical dialogues among leaders of disparate religious communities.[53] While the Communist Government of Vietnam is suspicious of religion, it is reported that the Vietnamese people have a long held tolerance toward religious groups and that there have been only a few cases of anti-religion violence, most of which involved Government's issues. It is reported that Christians, Buddhists, Hòa Hảo, Cao Đài, Muslims, Pagans and Hindus often cooperate on social and charitable projects.[54]  Therefore, based on the country information, while the Tribunal accepts that there may be some societal religious discrimination, it does not accept that Christians are discriminated against within society as claimed by the applicant. [55]  As such the Tribunal does not accept the applicant’s evidence that he was pressured by the Buddhists to not attend church as claimed.

   [50]  "World Report 2020: Rights Trends in Vietnam". Human Rights Watch. 2019-12-16. The National Catholic Review. Report from Vietnam ‘The struggle between religion and government,’ dated 29 February 2016 Thomas J. Reese, Mary Ann Glendon

   [51] UCANews ‘Religious tolerance' grows in Vietnam’ 14 June 2011 w.ucanews.com/news/religious-tolerance-grows-in-vietnam/20596#

   [52] AMERICA JESUIT REVIEW ‘How Vietnam respects and protects religious freedom has implications beyond its own borders’ 18 Feb 2016 Thomas Reese Mary Glendon

   [53] ibid

   [54] ibid

   [55] Applicant’s Statutory Declaration dated 15 June 2017 at para 12

3. Finally, the applicant referred to the fact that his brother was bullied at school because of his religion. It was not clear to the Tribunal how this was relevant to applicant’s claim. In any event, while the Tribunal accepts that there may be minor discrimination based on religion within the community, based on the available country information the Tribunal does not accept the applicant’s evidence that his brother was bulled at school due to his religion to the extent that it represented serious harm.

4. As such the Tribunal finds that there is no real chance that he would be seriously harmed if he was returned to Vietnam by reason of societal discrimination based on his religion as a Christian as claimed. 

Applicant’s land dispute

1. The applicant claims that he and his brother were the subject of a land dispute over their home in Vietnam. He claims that in or about 2010 or 2011 the house in which he and his brother were living was confiscated by the authorities for the purposes of developing a road. The Tribunal notes the applicant’s evidence was that the land was confiscated by the authorities prior to him departing Vietnam. The applicant’s evidence of the associated issues with the confiscation of the land included his opposition to the confiscation, his interaction with the authorities and resulting harm, as well his homelessness if he is returned to Vietnam.

2. Notwithstanding that the applicant’s evidence in relation to the land dispute was relatively vague and lacking in detail, the Tribunal notes that his claim in relation to the land dispute has been consistent since his arrival interview in 2012.  As such, the Tribunal is  prepared to accept that the authorities did confiscate the applicant’s home in or about 2012 for the purposes of developing a road.

3. The applicant claims that the government offered only low compensation for the land which he refused. As a result, the applicant was threatened and assaulted by a group gang member, hired by the police, during which he was pinned to the ground and clubbed. During the incident he claims that he pushed one of the group members and as a result an officer known to the applicant as [Officer A] threatened to put him in jail for obstruction. The applicant evidence was that in or about 2012, the house was dismantled and taken for the purpose of building a road. He claims that he did not receive any compensation.

4. There was no evidence that the authorities were pursuing the applicant as a result of anything that happened at the time he was confronted by the gang at his home, including pushing [Officer A]. The house having been dismantled and a road constructed on the site, there appears to be little or no reason for the authorities to maintain any interest in the applicant. However, he claims he is entitled to compensation, but fears that by pursuing the matter with the authorities he will be harmed because of having pushed an officer. Given the passage of time, in the event that the applicant is able to make a legitimate claim for compensation then the Tribunal does not accept he would be harmed as a result of having pushed an identified officer at the time his house was being demolished approximately 10 years ago. The Tribunal notes that the applicant’s claim for compensation is a personal matter and is not related to any issue pursuant to s.5J(1) of the Act. As such, the Tribunal finds that there is no real chance he will be seriously harmed because of having pushed an officer as claimed.

5. The applicant maintains that he remains fearful of [Officer A]. He claims that that in or about 2016 while he was in Australia, he asked his neighbours to help him obtain title documents of his home from his former neighbours in the village. The evidence was that out of frustration he contacted [Officer A] and insulted him on the telephone, in response to which [Officer A] told him that the moment he sets foot back in Vietnam ‘his life is gone.’ The applicant claims that people in Vietnam are required to present their identity cards and as such the authorities will know where he is at any time. As a result, he claims that [Officer A] will know that he is in the country and will harm him. However, the Tribunal notes that the phone call to [Officer A] occurred approximately four years after the land was confiscated. That is approximately 5 years ago from the date of this decision. In circumstances where the applicant has unexpectedly called [Officer A] and insulted him out of the blue it is perhaps not surprising that he was met with an abrupt reply. However, given the passage of time and the limited interaction between [Officer A] and the applicant as claimed, the Tribunal does not accept that the applicant’s evidence that he would be seriously harmed by [Officer A] if he was to return to Vietnam, even in circumstances where he was able to locate the applicant through the use of his ID card. As such, the Tribunal finds that there is no real chance that the applicant would be seriously harmed by [Officer A] as claimed if he was returned to Vietnam. 

6. The applicant claims that because of his home being confiscated, he will be without employment and homeless. The applicant claims that he has no family in Vietnam as his father died in or about 2008, he is estranged from his mother and his two brothers remain in Australia. The Tribunal accepts that the home in which he lived in Vietnam has been demolished and that he has no family upon which to rely in Vietnam.  However, it does not accept that the applicant will suffer serious harm by reason of his economic circumstances. The applicant has experience as a fisherman and working a member of a boat crew in Vietnam. While the Tribunal accepts that it will be difficult for him to find employment, the applicant has, in the past, displayed the necessary personal characteristics to be able to find work and support himself and his brothers. As a result of his past work experience the Tribunal is satisfied that he has the necessary skills to be able find work in Vietnam. As a result, it is satisfied that he will be able to support himself and provide adequate housing for himself upon his return to Vietnam. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed as a result of his economic circumstances if he is returned to Vietnam.  

7. The applicant claims that if he is returned to Vietnam, he would seek to obtain the identification papers for the land. As a result, he claims that he would be identified by the authorities and harmed by those who took the property including the officer in charge, [Officer A]. However, it was not clear to the Tribunal the basis upon which he would seek to claim compensation for the authorities. His evidence was that his mother had the title deeds and had taken them when she left to be remarried. Accordingly, it was not clear to the Tribunal if the applicant was the owner of the land and able to make a claim for compensation as claimed. If the applicant was entitled to compensation and he made a claim for such, there is no evidence that he would be harmed by the authorities for making such a claim. In addition, the Tribunal does not accept that after such a period that he would be harmed by [Officer A] as claimed.  Even accepting that the officer would be able to locate him, the Tribunal does not accept that after a period of what is now many years he would be prosecuted or harmed for what appears to be relatively minor incidents of pushing an officer and insulting [Officer A] on the telephone. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by [Officer A] if he is returned to Vietnam. 

Applicant’s illegal departure.

1. The applicant maintains that he departed Vietnam illegally by boat and without any identity documentation. Based on the applicant’s evidence the Tribunal accepts that his departure from Vietnam was illegal and that if he is returned, he will be considered a failed asylum seeker.

2. Article 23 of the Vietnamese Constitution[56] provides that that citizens can ‘freely travel abroad and return home from abroad in accordance with the provisions of the law.’ However, it is reported that in practice the government imposes limits on the movement of individuals, in particular overseas travel by high profile political activists or critical journalists. Passports are often confiscated or denied for people who the government deem to be a threat.[57] It is reported that irregular maritime movement does occur in Vietnam, including to Australia, primarily from ports in Binh Thuan Province in the south and Quang Binh, Nghe An and Ha Tinh Provenice in the North.[58] The DFAT Report[59] states that it is not aware of authorities being involved in facilitating illegal departures.

   [56] DFAT Report at p.42

   [57] ibid

   [58] ibid

   [59] ibid

3. The applicant claims that he will be harmed if he is returned to Vietnam because he left the country illegally. He claims that the authorities will want to know how he got the money to travel to Australia and will want him to pay them money as a bribe. The country information states Vietnamese nationals who depart the country unlawfully, including travel documents, may be subjected to a fine upon their return. Article 17 of the Decree on Sanctions of Administrative Violations in Social Security, Order and Safety, prevention and Fighting of Social Evils, Fire and Domestic Violence mandates a fine of between VND3 million (AUD187) and VND5 million (AUD310). For crossing a national border without undergoing official exit procedures, evading, organising or helping others to leave illegally. It is reported[60] that in practice the implementation of this legislation varies depending on the person and the circumstances of the illegal departure.  The country information[61] states that there are generally two groups of people who commonly exit Vietnam illegally, poor labourers and dissidents. It is reported that the punishment for poor labourers leaving illegally would "not be serious" and would most likely be able to return to Vietnam without any punishment while, dissidents (i.e. those who oppose official policy) may face a ‘high level’ of punishment, including jail.[62]

   [60] DFAT Report at p.43

   [61] Immigration and Refugee Board of Canada, Vietnam: Consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas, 6 March 2014, VNM104803.E, available at: 17 May 2021]

   [62] ibid

1. While the applicant claims that he has ‘spoken out’ against the local authorities for confiscating his own home, there was no evidence which suggested that the applicant had been active in protesting against the government’s policies in the sense that he would be considered a dissident by the authorities. The applicant’s evidence was that he was poorly educated and worked as a fisherman. As such, the Tribunal finds that he would be considered a poor labourer returning to Vietnam rather than a dissident who is actively raising support and speaking out against the government. Accordingly, based on the country information, the applicant is likely to receive a minor fine because of having departed the country illegally. There was no evidence to suggest that the applicant would not be able to pay a minor fine if he was returned to Vietnam. In fact the country information was that given his circumstances he was most likely to receive no punishment.[63] Accordingly, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he is returned to Vietnam as a result of having departed the country illegally.

Applicant’s claims as a failed Asylum Seeker

[63] ibid

1. In addition the applicant claims that because he arranged and encouraged his brothers to come to Australia with him, that he will be charged with the crime of organizing, brokering illegal emigration[64] or forcing another person to illegally emigrate under the Vietnamese Criminal Code.[65] The applicant’s evidence was that he paid money to the boat owner for his brothers for the trip to Australia but did not have enough money to pay for his trip. As a result, as a fisherman with sea experience, he offered his services as crew on the boat as payment for his passage to Australia. While the applicant did work as the crew it was as payment for his passage and not as a member of the people smugglers operations. As such there is no evidence that the applicant has engaged in organizing, brokering illegal emigration. The mere fact that he has paid for his brothers’ passage to Australia does not mean that he has been engaged in, organized, or brokered illegal emigration for the purposes of the criminal code. If this was the case every person who has helped another family member to board such a boat for the purposes of leaving the country would be able to be prosecuted under these provisions. As such the Tribunal does not accept the applicant’s evidence that he would be charged with organizing, brokering illegal emigration[66] or forcing another person to illegally emigrate under the Vietnamese Criminal Code as claimed. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed as a result of being charged under the Criminal code as claimed.

   [64] Article 349 of the Criminal Code Vietnam

   [65] Article 350 of the Criminal Code Vietnam

   [66] Article 349 of the Criminal Code Vietnam

2. Articles 120 and 121 of the Penal Code states that ‘fleeing abroad or defecting to stay overseas with a view to opposing the peoples’ administration is a criminal offence.[67] However, DFAT reports that it is unaware of any cases where these provisions have been used against a failed asylum seeker returned from Australia.[68] Australia usually returns people to Vietnam on the understanding that the person will not face charges as a result of having made an application for protection. The Memorandum of Undertaking signed between Vietnam and Australia in 2016 provides a formal framework for the return to Vietnamese citizens with no legal right to enter or remain in Australia, including those intercepted at sea.’[69]

   [67] DFAT report at p.43

   [68]  ibid

   [69]  >

   It is reported that all individuals involved in people smuggling operations are held by the authorities for questioning on their return. It is reported that the interview process for those individuals returning from Australia takes between one or two hours and focuses on obtaining information about the movement of the people smugglers. DFAT reports that it is not aware of any person having been held overnight.[70] DFAT understands that people who have attempted to emigrate from Vietnam who have used people smugglers do not face an administrative fine.[71] DFAT assessed that the government in Vietnam views people who paid money to people smugglers as victims of criminal activity rather than as criminals themselves.[72] It assessed that the long term detention investigations and arrests are only conducted in relation to those suspected of having conducted a people smuggling operation. The Tribunal has found that based on the applicant’s own evidence he was not involved in such an activity but merely a person seeking the services of the people smuggler for which he paid for both in cash and in kind. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed because of being a failed asylum seeker if he is returned to Vietnam.

   [70]  DFAT Report at p.43

   [71]  ibid

   [72]  DFAT report at p.44

3. Finally, the applicant claims that there are gangs that secretly work for the police to track down returnees. He claims that they do not wear uniforms and there are many of them dispersed around the country. However, as a returnee the applicant will be faced with the authorities at the time he arrives back in Vietnam. The country information states that returnees for Australia are questioned by the authorities on their arrival in Vietnam, and it is reported that the interview process takes approximately one to two hours and focuses on obtaining information about illegal movement of people. Therefore, based on the available country information the Tribunal does not accept his evidence that as a returnee he would be detained by gang member working for the police. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed by gang members working for the police if he is returned to Vietnam as claimed.    

Applicant’s Criminal Convictions.

1. [In] August 2018 the applicant was charged and convicted of contravention of a police protection notice and possession of dangerous drugs for which he was fined $900. [In] September 2018 he was charged and convicted of contravention of a domestic violence order and fined $900.[73] [In] November 2018 he was again charged with contravention of a domestic violence order (aggravated offence), possession of utensils or pipes etc for use and three common assault domestic violence offenses, for which he received a sentence of 12 months’ probation.[74]

   [73]  Department file [number], Doc ID [no]

   [74] Department file [number], Doc ID [no]

2. In arriving at its decision, the Tribunal has considered only those matters relevant to determining if the applicant is owed protection obligations pursuant s.36(2) of the Act. In this case the mere fact that the applicant has a criminal history is not a relevant issue to the Tribunal’s consideration as to whether there is a real chance, or a real risk of the applicant being seriously or significantly harmed if he is returned to Vietnam.[75]  However, it was open to the applicant to claim that he may be persecuted if he is returned to Vietnam by reason of him having a criminal history in Australia. However, according to the Ministry of Justice,[76] the principle of double jeopardy applies in Vietnam. That is, 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. The principle of double jeopardy is regulated in the Vietnamese Constitution, Penal Code and Criminal Code (2015).[77] It is referenced in the Law on Mutual Assistance (2008)[78] between Australia and Vietnam.[79] However, Article 6 of the Penal Code[80] provides ‘that Vietnamese citizens who commit offenses outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code.’ Therefore in circumstances where the applicant has been convicted of criminal offences in Australia and has served the penalty imposed, the Tribunal finds that there is no real chance the applicant will be seriously harmed in Vietnam by reason of having been convicted of a crime in Australia.

Applicant’s brother’s imputed homosexuality

[75] s.36(2)(a) & s.36(2)(aa) of the Act.

[76] ibid

[77] DFAT Report at p36

[78]  Chapter 4 Treaty on Mutual Legal Assistance in Criminal Matters between Australia and the Socialist Republic of Viet Nam; JSCT › Report147 › ch.

[79]  ibid

[80]   type="1">

The applicant claimed to the Department[81] that his brother was doing well at school but was bullied because of his religion as a Catholic and because he was a homosexual.  As to the applicant’s claim that his brother was bullied because he was Catholic, the Tribunal has already made a finding that there is no real chance the applicant will be seriously harmed if he is returned to Vietnam by reason of him being Catholic . As to the applicant’s claim that his brother is homosexual, the applicant did not provide any evidence in relation to his brother’s sexuality. In addition, he did not say how he had a well-founded fear of persecution by reason of his brother’s sexuality.  The country information[82] reports that same sex relationships are legal in Vietnam provided that they comply with other legislation also applicable to heterosexual activity and are consensual between adults. Therefore, based on the country information the Tribunal finds that there is no real chance the applicant will be seriously harmed if he returns to Vietnam by reason of his brother’s sexuality.

[81] Applicant’s SHEV Application; Dept File [number] Doc ID [No]

[82] DFAT Report at p.32

The Tribunal has considered the applicant’s evidence, the available country information and has had regard to the applicant’s circumstances and profile including his claim as a Christian, threats arising out of a land dispute, his alleged involvement with the people smuggler, his level of education, his Australian criminal record, his economic circumstances upon his return to Vietnam and any threat of being charged or detained upon being returned to Vietnam. Having considered these matters individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing there is a real chance the applicant will be seriously harmed in the event that he returns to Vietnam by reason of any land dispute or consequential threats by an official, his religion or by reason of his membership of a particular social group as a failed asylum seeker. As such the Tribunal finds that there is no real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act in the receiving country.

As such, the Tribunal finds that the applicant is not a refugee as defined in s.5H of the Act and the criteria in s.36(2)(a) of the Act is not satisfied for this reason. Accordingly, 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

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 will suffer significant harm.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruelty, inhumane and degrading treatment or punishment.  In particular, the applicant claims that there is a real risk he will suffer significant harm for the reasons detailed in his application for a protection visa as expressed above.

1. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[83] It therefore follows, for the reason expressed above, the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm in Vietnam by reason of his political opinion or his religion or as a  returned asylum seeker or as a person with criminal convictions.

   [83]    MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

2. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.

3. At no stage did the applicant advance any other reason, in either his written or oral claims, for Australia owing the applicant protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

4. Having regard to all the circumstances and findings above, considered individually and cumulatively, 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 to Vietnam, there is a real risk he will suffer significant harm as required by s.36(2)(aa).

CONCLUSION

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

2. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) based on 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

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

Jason Pennell

Senior Member

Appendix ‘A’

RACE/NATIONALITY[84]

[84] DFAT Report at p.17

3.5 There is considerable overlap between ethnic, religious, and political issues affecting minority communities, particularly in rural areas. In-country sources report that ethnic minorities at provincial and village levels tend to experience greater official harassment due to their religion, compared to other Vietnamese exercising their freedom of religion (see Religion). DFAT assesses that, in cases where minorities experience discrimination, it is likely to be the result of numerous contributing factors rather than a single causative one. This section should therefore be read in conjunction with other relevant sections.

RELIGION[85]

[85] Op Cit at p.19

3.16 Officially, Vietnam is an atheist state. Article 24 of the Constitution states, however, that all people have the right to freedom of belief and religion, including the right to follow any religion or to follow no religion; that all religions are equal before the law; and that no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the law. These constitutional rights are conditional on law and The Penal Code (2015) establishes penalties for practices that, in the view of authorities, undermine peace, national independence and unity.

3.17 According to the 2019 Annual Report of the United States Commission on International Religious Freedom (USCIRF), government-recognised religions/faiths in Vietnam numbered 43 religious organisations from 16 religious traditions, representing more than 25 million followers in total. These traditions included: Buddhism, Hoa Hao Buddhism (see Buddhists), Catholicism (see Catholics), Cao Dai (see Cao Daists), Protestantism (see Protestants), Islam, the Baha’i faith, Mormonism (Church of Jesus Christ of Latter-Day Saints), Khmer Brahmanism, Hieu Nghia Ta Lon Buddhism, Vietnam Adventist Church; as well as Buu Son Ky Huong, Tinh Do Cu Si Phat Hoi, Tu An Hieu Nghia, Phat Duong Nam Tong Minh Su Dao, and Minh Ly Dao Tam Tong Mieu (the last five are all domestic practices); and officially atheist. Three additional groups – the Assemblies of God, Ta Lon Dutiful and Loyal Buddhism, and Vietnam Full Gospel Church – are ‘licensed for religious operation’ but are not recognised as official organisations. Differing slightly, the Vietnam Government’s National Report to the 2019 HRC UPR process noted its recognition of the legal status of 42 religious organisations affiliated with 15 religions. These statistical differences may be attributed to the Government recognising in addition one dharma practice (a set of spiritual practices); the Vietnam Adventist Church being included within the Protestant tradition; and the time-lag between applying for registration and licencing. As noted in 2.7, other religious groups present in Vietnam include small communities of Hindus, Falun Gong followers, Muslims, Jehovah’s Witnesses and a mostly foreign Jewish population.

3.18 Some Buddhist, Protestant, Hoa Hao, and Cao Dai communities choose not to participate in officially recognised religious organisations and instead belong to independent organisations that also claim to represent the religion. There is a considerable difference in the treatment by authorities of official and independent religious groups. For the most part, religious followers belonging to officially recognised religious organisations are able to practise their faith without significant interference, regardless of which particular religion they may follow. Those associated with independent organisations, however, are less likely to be able to do so (as outlined in this section). There is also a difference in treatment according to location: whereas religious followers in urban, economically developed areas are generally able to exercise their religion or belief freely, religious communities in rural parts of some provinces are more likely to face restrictions and/or harassment. This is particularly the case for religious followers in ethnic minority areas, where ethnic, political, and religious issues frequently overlap (see also Race/Nationality).

3.19 USCIRF has classified Vietnam as a ‘country of particular concern (CPC)’ since 2002, which defines it as ‘a country that commits systematic, ongoing, and egregious violations of religious freedom’. Human rights observers reported an overall decline in the situation for religious groups in 2017 and 2018, particularly for followers of independent religious groups. Religious leaders representing independent groups have reportedly faced various forms of official harassment, including physical assaults, arrests, prosecutions, monitoring, travel restrictions, property seizure or destruction, and denials of registration and/or other permissions. Followers of independent religious groups have reportedly been subjected to public criticism, forced renunciation of faith, detention, interrogation, torture, and imprisonment. International observers also reported an increase in acts of violence against religious groups (including registered groups) in 2017 and 2018 by police and plainclothes individuals, including some working closely with or representing authorities.

5.35 DFAT assesses that the government typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves. Such individuals are unlikely to be subjected to the penalties allowed in the law for illegally departing Vietnam. DFAT assesses that long-term detention, investigation, and arrest is generally conducted only in relation to those suspected of involvement in organising people-smuggling operations.

DOCUMENTATION[92]

[92]  Op Cit at p. 44

Birth and Death Certificates

5.36 Under the Law on Civil Status (2014), Vietnamese citizens have rights and obligations to register civil status events including births, marriages and deaths. The Ministry of Justice manages the national Civil Registration and Vital Statistics (CRVS) system. The office of the justice clerk in every commune maintains a civil and vital event register to record births, deaths, and marriages of commune residents, which are then reported to district, provincial and central levels. Applications for birth registration of a Vietnamese child born overseas, or the reissuance of original birth certificates for Vietnam-born citizens based overseas, can be processed through the relevant Vietnamese embassy. It is unclear whether replacement identity cards can be issued overseas.

5.37 Article 15 of the Law on Civil Status stipulates that births are required to be registered within 30 days. Article 13 of the Law stipulates that certificates be issued by the local (commune) authority where the mother is living or registers her permanent address. The application for certificate requires evidence to prove the birth of the child; a marriage certificate for the parents (if any); family residence book or temporary residence certificate of the mother; and an identity document for the person who registers the baby. The application is free and is generally processed within a day, but applications can reportedly be expedited by payment of facilitation fees to the processing officer. Birth certificates are required to access public services, including education and health care.

5.38 UNICEF estimated in 2016 that 359,000 children under five years of age in Vietnam did not have birth certificates, with most living in remote areas. International observers have reported that some parents, particularly from ethnic minorities, have chosen not to register their children; while there have also been instances of local authorities preventing some parents from registering the births of their children to discourage migration. Victims of human trafficking also often lack birth certificates. MOLISA reported in 2014 that there were approximately 150,000 to 176,000 orphaned or abandoned children in Vietnam who may also lack birth certificates. Others potentially in this category include children born outside of marriage, to parents with HIV/AIDS, or as the third child (under the previous two-child policy), as their parents may not approach authorities for fear of social stigma, official discrimination or other consequences in these circumstances.

5.39 Rates for the reissue of a birth certificate vary between localities. The rate in Hanoi is reportedly VND5,000 (AUD0.31) at the Communal Peoples’ Committee, and VND50,000 (AUD3.10) at the District People’s Committee. DFAT is aware of claims that unofficial facilitation fees are often required, but does not have any information in relation to this. There have been some reports that the Public Security Bureau, which provides background checks before birth certificates are issued, may offer individuals the option of providing community service, for example being a neighbourhood guard, in lieu of paying for a birth certificate. DFAT does not have any specific information in relation to how common this practice is.

5.40 All deaths are required to be registered within 15 days. The registration of deaths through the CRVS system is dependent on whether and how family report information about the death of their relatives to the commune justice officers. As such, the information on death certificates is often incomplete or poorly recorded.

5.41 The government has taken steps in recent years to enhance its CRVS system, and further improvements have been included in the National Action Plan for the implementation of the 2030 sustainable development agenda. These include providing legal identification, including birth registration, by 2030 for all citizens, with a particular focus on ethnic minorities, migrants, and those living in mountainous regions. The government is also progressively rolling out a nationwide electronic civil status database to be used in all registration offices.

Citizen Identification Card (CIC)[93]

[93] Op Cit at p.45

5.42 The Law on Citizen Identification (2014) governs Citizen Identification Cards (CIS). Since January 2016, citizens over 14 years of age have been required to obtain a CIC, which contains a 12-digit personal identification number and replaces earlier identity cards. Identity cards issued before January 2016 remain valid until their date of expiry, and all valid papers issued on information from such cards remain valid until 31 December 2019. From 1 January 2020, the new national identification database will be made available online and citizens will use their citizen identification cards for all administrative transactions. Individuals lacking official identification are subject to a VND200,000 (AUD12) on-the-spot fine. This digital transition marks a change from the previous physical household residence book (ho khau) and national identity card system.

5.43 CICs are used to carry out administrative transactions to access basic legal, social and economic rights in Vietnam, including to apply for birth certificates, register vehicles, or own property. They must be replaced when the cardholder reaches the ages of 25, 40 and 60, or within a two-year window prior to the age limits being reached. The front of the card displays: the cardholder's photo; a 12 digit national identification number; the surname; middle name and first name provided in the birth certificate; date of birth; gender; nationality; place of origin; permanent residence; and an expiry date. The back of the card includes: the cardholder’s fingerprint; date of issue; the surname; middle name and first name, designation, and signature of the issuer; and the card issuing authority’s stamp with the national emblem.

Household Registration[94]

[94] Op Cit at p.46

5.44 The Law on Residence (2006) establishes the system and policies for household registration (ho khau) and is administered by the Police. Under the law, there are two categories of registration (reduced from four under the previous law): temporary and permanent. Household registration requires citizens to register their permanent residence in only one district in Vietnam. To gain permanent residence status in a new district, citizens must either marry into a family already holding permanent residence, purchase land, or live in rental housing with an official lease and a minimum amount of liveable space.

5.45 The government revised the law in 2013 in response to concerns raised by the MPS over rapid urbanisation in major cities, which had seen more people changing their status to permanent after one year of residence (previously three years). The revisions tightened the requirements for permanent residence from one year to two years of continuous residence. In recent years, both Hanoi and Danang have enacted local laws to increase the restrictions on household registration changes.

5.46 Household registration is initially obtained through the registration of a person’s birth with the village or provincial administrators. Officials use the registration system to determine the levels of services provided to villages and provinces, linking a person’s right to access government health care, education and other services to their place of residence. Household registration is also essential for obtaining employment with the government or in state-owned enterprises. Furthermore, household registration provides benefits for low-income families, including reduced electricity rates.

5.47 Although health care facilities can be accessed anywhere in Vietnam in emergency cases, there have been reports of public facilities turning away non-life-threatening cases where the person is not properly registered. Access to schools is determined by household registration and administration fees may apply to children not registered in an area zoned for a particular school. For members of minority groups, household registration is essential to access development-related entitlements in rural and regional centres. This may include additional language training or employment related training. Citizens can request the issuance or reissuance of a household registration book, a certificate of temporary residence or other residential papers from local authorities.

5.48 As noted above, under government resolution 112/NQ-CP issued 31 October 2017, the household registration book will be abolished in 2020 and replaced with a new online database, removing some previously time-consuming administrative procedures. Personal administrative procedures going forward will be linked to an individual’s 12-digit personal identification number and updated on the national database.

Passports[95]

[95] Op Cit atƒ p.49

5.49 Passports are obtained by application to the Immigration Department of the MPS, at either the Central level (in Hanoi) or the Central-City level (in Hanoi, Danang and HCMC). Applicants outside these three cities can apply by post. Applicants must provide their identity card or birth certificate (for children under 14 years of age), an application form and two recent passport photos. MPS reviews the application in consultation with authorities in the province who verify the applicant’s identity. The process officially takes five working days at the Central level and eight working days at the Central-City level. Ordinary passports are valid for 10 years for individuals aged 14 years or over, and for five years for children under 14 years of age. Passports are issued for children aged under 14 years with the signature of parents or guardians and using their birth certificate.

5.50 Vietnamese passports do not currently use biometric information. Article 7 of the draft law on the entry and exit of Vietnamese citizens, developed in December 2018, outlines a new system for biometric electronic passports. All official, diplomatic and ordinary passports would be embedded with a microchip that stores the holder’s personal information, fingerprint scans, ID photo and a digital signature from the issuing agency. The biometric e-passport system would also link to the online national identification database. Applicants will be able to apply either online or at police municipal and provincial immigration offices.

5.51 The draft law also proposes replacing the current travel document (giay thong hanh) with temporary passports, which would be valid for one year and be used when a Vietnamese citizen travels to a foreign country while their passport is lost or expired, or otherwise exits a foreign country (either voluntarily or involuntarily) when the host country does not allow residency. It is expected that travel documents, which are currently valid for one year, could still be issued for Vietnamese citizens travelling to bordering countries, or any country involved in an international agreement to which Vietnam is a party. The bill, if adopted by the National Assembly, is expected to come into effect in July 2020.

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

Legal Concepts

• Judicial Review

• Procedural Fairness

• Statutory Construction

• Jurisdiction