2018327 (Refugee)

2018327 (Refugee) [2023] AATA 2636 (9 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Phuong Tran (MARN: 1801018)
CASE NUMBER:  2018327
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Joseph Lindsay
DATE:9 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 June 2023 at 10:32am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic Christian – organised youth group campaigning for religious freedom and human rights – detained, beaten, threatened and monitored, and church services disrupted – grandparents’ land appropriated and no compensation paid – returned failed asylum seeker – credibility – vague and inconsistent claims and evidence, and unsatisfactory explanations – no post-hearing submissions provided – country information – very low risk profile – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulation 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 December 2020 to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Vietnam, applied for the visa on 11 August 2020. The applicant appeared before the Tribunal on 28 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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.
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).
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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
In his SHEV application, the applicant provided a statutory application stating as follows:
1. I was born on [Date] in [Ward], [Village], Nghe An Province, Vietnam. I was baptised on [Date] at home.
2. My ethnic is Kinh group and I am Catholic.
3. I arrived in Australia at Darwin port [in] April 2013. The boat number is [Number]. I was first transferred to [Immigration Detention Centre 1] until May 2013. Then, I was moved to [Immigration Detention Centre 2] until early 2014 before taken to [Immigration Detention Centre 3]. After that I was placed in community detention in [Suburb 1] at an accommodation organised by the Department of Home Affairs. I stayed at this place for around 1 month before moving to [Address 1], and then [Address 2]. From 2016 to 2017, I lived at [Address 3]. Then, I moved to [Address 4]. l am currently living at [Address 5].
4. On [Date], l was married to [Ms A] at [Church]. Our common [child] was born on [Date] in [Hospital]. Our marriage broke down and we officially divorced on [Date]. My [child] is currently living with my ex-wife, thus [s/he] is not included in my application for this application for a Safe Haven Enterprise Visa Subclass 790 visa.
5. I had previously made an application for a Subclass 866 visa on 31 August 2017 which was advised invalid on 23 July 2020.
6. On 6 August 2020, I received a notification for making an application for SHEV or TPV. I have decided to make an application for a SHEV (Subclass 790) visa.
7. In my entry interview with the Department ln Australia upon my arrival, I might have provided inaccurate dates of birth for my family members as I had guessed and estimated when I did not remember their exact details and I was not in a clear state of mind after a traumatic period of time travelling by sea. Especially, my date of birth was wrongly declared as [Date]. So, I would like to correct my date of birth which is as per the provided birth certificate.
8. My reasons for seeking protection from Vietnam are as below:
i. I was born a Catholic, same as my whole family who are still living in Nghe An, Vietnam. Since I was young, l witnessed my family was being always treated unfairly by the government authorities as the current regime does not support our Catholic religion. In Viet Nam, Catholics are often targeted by Vietnamese authorities and denied the rights to freely practice our religion and we do not have freedom of religion. It is very common for the Vietnamese authorities to try and stop people from praying in public and/or holding meetings and gatherings in churches. They often distort the true purposes of our religious practices by labelling our religious gatherings as political activities against the current government. I remember that when I was young, I witnessed the Vietnamese authorities confiscated lands owned by the Catholic church in our village and destroyed the statues inside the church.
ii. Our family went through many major events in the past especially around 2012 and 2013 just before I ran away:
• In or around 2008, when I was around [Age] years old, my friend and I helped to organise a youth group that campaigned for religious freedom and human rights. This group was named [Name] - after the Catholic saint named Saint [Name], I remember that the Vietnamese authorities did not support Catholic youth groups, such as [Name], and they tried to stop the young people from organising the activities within the church.
• In around 2009, when l was [Age] years old, I was arrested by Vietnamese police because my friends and I organised a prayer vigil that was in part critical of Vietnamese authorities. The prayer was about to pray for all Vietnamese to have the freedom of religion and to ask the government to stop mistreating the Vietnamese Catholic community. The prayer took place at [Location] Catholic church in our village. I did not know how the local authority knew about our prayer vigil before, but they turned up at the church during the prayers and arrested myself and around 10 other people.
• After being arrested, we were taken to the local police station where we were all detained ln a large room inside the police station, whilst I was held in the room, I was beaten by a number of police officers. They beat all over my body and my head with their batons. I recalled that I was so badly beaten that blood came out of my mouth. When they were beating me, they kept telling me that I should stop being a catholic and going to church or else my family and I would continue to have troubles. I also believed that they beat everyone who were arrested at the same time with me. Young or old, we were all beaten badly by the police officers.
• After that, I was taken to another room for further interrogation during which they told me that l should stop being a catholic and that I should give up on my religion as it was just a front of my political intention against the Communist party. Also the police officer tried to force me to “turn other members of my group in” and join the Communist party. They told me that if I did that, I would receive undisclosed privileges and I would be protected. However, I refused their request and told them that I was proud to be a catholic and I and other members of my group were simply practising our religion without any political intention. They got angry then and hit me again. Also, the police officer told that as I refused to do what they asked, my name would be recorded on a watch list and I would be monitored from then on. After interrogation, I was returned to the large room and I was held there for about 5 days. During that time, the police officers came everyday to threaten me and other detainees, as they tried to force us to admit that our religious activities were organised with intention to do harms to the Communist party and we should give up on Catholicism. However none of us did what we were forced to do.
• After I was released from police station, l came back to my home. However, the police officer told me that from now on, I would not be allowed to leave the village without getting permission from the local authorities. In reality, the only way to leave the village was to leave secretly. After being released, l had to stop going to school and I started working with my mum on our farm. I always knew that each and every movements of mine were being monitored as l was followed by unknown men and women. I believe that these individuals worked for the Vietnamese authorities and were monitoring me because of my religion, my criticism of the authorities openly and my refusal to “co-operate” with the police to work for the Communist party.
• I always felt threatened while I was living in my country and I did not feel safe because there were always strict rules imposed on us from the government. When I practised my religion at the church or gathering with other Catholics at our religious group, we were always under the watch of the local authorities, and we never had the freedom of speech and expression to defend and protect ourselves. If we spoke up, we would be subject to sentencing to jails under other criminal charges which we had nothing to do with.
• Between 2009 and 2013, I tried to apply for a number of identity documents such as a passport and driver license. However, I was refused by the Vietnamese authorities. They did not want me to have these identification for fear that I would escape.
• In 2010, my grandparents had their land repossessed by the Vietnamese authorities, The Vietnamese authorities came to our village and told my grandparents that they needed the land to build a road. They promised to give my grandparents a small amount of money as compensation for having to move, but my grandparents were never paid and the road was never built. The fact that my grandparents were forced to leave their home without compensation made my family and myself very angry. My grandparents organised a small protest in our village in which our whole family attended. During the protest, I was beaten and hit on my chest and head by the police officers with their batons. While we were bleeding and need medical attention, the police officers stopped us from going to the hospital because we were Catholics protesting against the current government and alleged that we disturbed the good order and safety of the community with our malicious political intention which we never did. We had to seek medical helps from a small clinic run by the church during that time. I believe that we were treated with cruelty and unfairness by the law enforcement force of the Vietnamese government when they denied us of the right to seek medical attention.
• This protest became a regular occurrence with my family and I had to report to the local authority every week. Sometimes, the police would come in my grandparent's house and beat me inside with their baton if I did not answer the questions the way they wanted me to answer. They would tell my family and me that we should slop protesting against the authorities and that we should join the Communist party and leave Catholicism. On at least one occasion, the authorities also beat my grandparents and kicked them even though they were old. Following this assault, my grandfather was admitted to the local hospital for lungs injury. Despite the threats and beating, I continued protesting with my family until I left Viet Nam to come to Australia.
• In March 2013, I decided to leave Viet Nam and come to a free country where I could enjoy the freedom of religion and speech. ! wanted to live in a country where I could freely practice my religion and not be punished for being a Catholic. Therefore, I took a boat to [Country] and then on to Australia.
9. My fears of returning to Viet Nam
i. If l come back to [Ward], I am scared that I will be arrested, detained, harmed, beaten, tortured and/or killed by the Vietnamese authorities because I left the country illegally and because I would be returning to the country as a failed asylum seeker. I believe that the Vietnamese authorities will condemn me to commit treason by leaving the country illegally and that I have been disloyal to the Vietnamese authorities. l worry that they may detain me in the prison for a long time period and that I would be unable to support my family.
ii. If I return to [Ward, l am scared that I will be arrested, harassed, tortured and/or killed by the Vietnamese Communist Party and/or the Vietnamese authorities because of my refusal to join the Communist Party. As I repeatedly refused to join the Communist Party and did not give into pressure from the authorities in Viet Nam before, I believe that if I returned to Viet Nam, I would again face pressure to join the party. I always do not wish to join the Communist party because l am not a communist and I do not agree with their attitude and treatments towards the catholic community. I worry that if l do not follow the communist party, I would once again be denied access to basic rights, freedom and identity documents. I believe that without these documents, it would be difficult for me to live freely, safely and legally anywhere in Viet Nam and that I may not be able to find work and/or basic access from government services such as healthcare and education. I am also concerned that my name might be removed from my family's household registration book (Ho Khau) because I left Viet Nam Illegally and without this document, I will have no identity documents and no access to new ones.
iii. If I return to [Ward], I am scared that I will be unable to freely practise my religion. During my time in Viet Nam, I was repeatedly discriminated against, beaten, harmed and threatened by the Vietnamese authorities because of my religious beliefs and my refusal to leave Catholicism. Since coming to Australia, I have been able to safely and freely practise my religion. I am worried that if I returned to [Ward], I will be forced to stop from going to church and that I will be detained, and/or beaten again for standing up for religious freedom and my own religious beliefs.
iv. I was in detention [in] January 2014 and my information was affected by the data breach. l am scared that the Vietnamese government had accessed to my records and will know that I am an asylum seeker in Australia. I am scared that they will suspect that I have made complaints against the Vietnamese government. I am also scared that this breach of my privacy puts me at a greater risk of being known to Vietnamese government.
v. l am also worried that without accessing to Identity documents such as National ID card, driver license, passport and/or a family household registration book, I will be unable to relocate legally to another part of Viet Nam. l understand that when people move to another area, he or she must register with the local authorities. I believe that if I was to be denied to access to identification documents then I would be unable to legally relocate anywhere in Viet Nam and this would make it difficult to find adequate employment, shelter and/or food for me and my family. I would only register in another area if I have a letter from the local authorities. However, I do not believe that the authorities would provide me such a letter because I left the country illegally, would be returning as a failed asylum seeker and I refused to join the communist party.10. I do not believe that it will be possible for me to safely relocated to another part of Viet Nam and to live there safely and openly as a catholic. I believe that wherever I live in Viet Nam, I would be at risk of being monitored, followed, harassed, discriminated against, arrested, detained, beaten, interrogated and/or harmed by the Vietnamese authorities because I am Catholic, I left Viet Nam illegally and I previously refused to join the Communist Party. I believe that wherever I would try to live in Viet Nam, the Vietnamese authorities would be able to harm me.
11. I do not believe that the Vietnamese authorities could or would protect myself if I was to be returned to Viet Nam as failed asylum seeker. I believe that the Vietnamese authorities would likely be the organisation responsible for harming me, I believe that the Vietnamese authorities would not protect me because I am catholic, I refused to join the Communist Party and I left Viet Nam illegally and would be returning to Viet Nam as a failed asylum seeker.
12. I can't come back to my country as I still feel threatened and risks to my health and safety. I left the country illegally and if I return I will be sentenced to prison and will be undoubtedly treated very badly if I continue practising my religion.
13. Since the day I set foot on Australia, I have always felt something about life here that is totally different from what I used to experience ln Viet Nam. Then I realise that it is the freedom and the human rights that the Australian Government provides to its citizens and residents. Thanks to democracy in Australia, I can freely practise my religion as being a catholic and express my beliefs without any fear. If it was in Viet Nam, the local authorities would give me heavy fines or even lock me up in prison for several years without reasonable explanation for doing similar things.

In the hearing, the applicant said he came to Australia when he was [Age] years old. He said he came to Australia by boat. When asked why he did that, he said he left Vietnam “due to religion” and he did not have “freedom of speech.” He said he was a Catholic. He said he had been baptised and confirmed in the Catholic faith. He said he grew up in a Catholic family. He said he had no other relatives in Australia other than his [Child], who is around [Age] years of age. He said his [Child] lives with [her/his] mother but will sometimes visit him on the weekends. He said he got married to a Vietnamese citizen in around [Year] but that he got divorced in around [Year]. He said his ex-wife has since remarried. He said he was only married for about two years. He said he separated because he could not find anything in common with his ex-wife. He then said he got married because he got his ex‑partner pregnant. He then said he lived with his ex-partner for less than a year.
When asked what happened to him in Vietnam that caused him to decide to leave Vietnam, he said he had to “run away from the authorities” in his home village of [Town] in Nghe An Province. He said he grew up in Nghe An Province and he went to school there. He said his parents and all of his relatives are there in Nghe An Province. He said [Town] is on the coast of Vietnam.
When the Tribunal asked what happened to him, he said in 2008, when he was [Age] years old, he was a member of a group that protested for “free religion” and “free speech” but the authorities “cracked down” on the protests.
When again asked why he left Vietnam, he said he had “some problems” with the authorities and so he left Vietnam when he was [Age] years old. He said he left Vietnam by boat from Vung Tau where he went to [Country].
He then said he was actually [Age] years old when he attempted to travel to Australia by sea. When asked why he would do this, he said “for my safety reasons.” He said his mother paid money to arrange for him to come to Australia, but he travelled to Australia by himself without friends or family members.
He said when he left Vietnam, he was “under the surveillance of the authorities” who “observed his movements.”
When asked what he meant when he said he was “under the surveillance of the authorities,” he said he was a member of “young Catholics” who “fight for freedom” and that due to his activities the authorities “summoned” him and charged him for being “a rebel” even though he did not “do anything.” He said that all he did was protest against the government. He said the Vietnamese authorities harmed him and hit him and prosecuted him and put him under surveillance.
When asked if he was convicted of anything when he was in Vietnam, he said he was not convicted. He then said “they captured” him and put him “in custody.” He said they warned him that if he ever “tried to do this again” they would put him in prison.
When asked what he was doing in Vietnam that caused him to have an issue with the authorities, the applicant said he was a member of “young Catholics” who prayed and “protested peacefully.”
When asked what his group was called, he said “[Group name].”
When asked to explain exactly what he claimed to have done that drew the ire of the Vietnamese authorities, he said he was “planning” to set up a “group meeting” to “pray” and to ask the Vietnamese government to return “our land” and also to provide the freedom to practise religion. He said that the authorities saw him as being part of a group “against the government.”
When asked why he would get involved is such activities given he was so young at the time, the applicant said that in his home town he lived in “that kind of environment” where everyone from “young to old” all get together to fight for “our land” and to protect “our land.”
When asked what he meant when he said “fight for” his land, he said he was referring to the land that belonged to his grandparents. He said the authorities came and took the land. He said the authorities came to his grandfather’s house in 2010 and wanted to take the land. He said the authorities hit his grandfather and he was taken to hospital. He said this also happened to “all the other families.” He said that the authorities also took “the church land.” He said the authorities wanted the land to “do something” but he did not know what.
When asked if he was present in 2010 when the authorities came and took the land, he said “yes, I was there.” When asked exactly where he was, he said he was at “the main square” where his grandfather’s land is. When asked for an address or location of the land, he said “in [Village].” When asked what happened, he said “it was in the afternoon when the authorities came to my grandfather’s house.” He said the authorities offered a small amount of money in exchange for the piece of land but his grandfather declined the offer. He said the authorities told his grandfather that if he did not accept the offer, he would have to “face the consequences.” However, he said he could not remember exactly when in 2010 this happened. He said he could not recall any further details about the alleged incident.
He said that at the time he was living at his parents’ house but he was “not far” from his grandfather’s house.
When asked why the authorities wanted his grandfather’s house, he said he did not know why.
The applicant then said that “in the eyes of the Vietnamese authorities, whatever we do is not accepted.”
When asked what he meant, he said he was not able to pray or worship freely and openly.
When it was put to him that there were Catholics and Catholic churches in Vietnam, the applicant said he acknowledged that there were Catholics and Catholic churches in Vietnam. However, he said he did not feel that he could speak freely about his Catholic faith in Vietnam.
When asked what his grandfather did when his house was taken, the applicant said his grandfather was an ordinary fisherman. When asked if his grandparents were alive, he said that on both his mother’s side and father’s side his grandparents had passed away. He claimed that the authorities hit his grandfather “in the lungs” and that his grandfather died when the applicant was in Australia.
The applicant admitted that he regularly spoke with his mother and father. He said his parents were doing okay. He said his father is a fisherman. He said he did not think he himself would become a fisherman. He said he only finished to Year 5 of school, and he does not have much education at all. He said he was helping his mother with housework. When asked why he did not go to school, he said he did “some jobs” doing building and construction work, and not fishing. However, he said whenever his father returned, he would help his father unload the fish.
When asked if his claims were that the authorities took his grandfather’s house and that he was involved in protests for free speech, he said “yes.” He said prior to the incident, he was involved in groups that fight for human rights and freedom. He said he had been “captured” by the authorities who were “worried” about his activities, when he was a teenager.
He said that in his group, it did not matter whether you were old or young. He said that as long as you had faith, you could join the group and “do your task.” When asked what the “task” was, he said “praying” and “protest in peace.” He said that he was “against the government” and “against the authorities.” He said he would pray for “political prisoners” and “fight for human rights.” When asked if he could give examples where he had protested and fought for human rights in Vietnam, he said the protests would often be held on almost every Sunday because on the weekdays there would just be “gatherings, plannings and praying” but on Sunday everyone would have their days off work so they could go to a Catholic Mass and then protest.
When asked to provide more information, the applicant said that normally after Sunday Mass they would go into a room and pray, and then they would go outside of the church. He said in the backyard of the church, they would gather, pray and talk. He said that because they were under surveillance, the authorities would often come there to “check on” them. He said the authorities told them they were not allowed to gather and demanded they break up. He said this happened “on Sunday.” When asked if he could recall any specific dates of these instances, he said it happened every Sunday and, in fact, it would happen every Sunday for years and years. He said it would happen “all the time” from 2008–2013, which was up to the time he left the country. He indicated that from the age of [Age] to about the age of about [Age], the Vietnamese authorities would come to the church every Sunday and tell him not to protest. He said that was all the Vietnamese authorities did – just tell him not to protest. However, he said that he would keep protesting anyway. He said he didn’t do anything wrong.
When asked if he had ever been harmed when he was in Vietnam, he said he once had been “locked up for 5 days.”
When asked when this alleged incident occurred, the applicant said it happened sometime in 2010 or 2011. However, when it was put to him that he had previously told the Tribunal he had not been convicted of anything, he said he did not harm anybody. He then said the authorities had hurt him. When asked how the authorities hurt him, he said “they hit me and they said to me I’m not allowed to do the gathering or talk about anything anymore.” He then said “they” had a rod and they hit him on his back and all around his body. He said that he was then let go. He said they told him he was not allowed to go outside of the village. However, he said he continued to protest anyway up until the time he left Vietnam in 2013, but that he did this in secret.
When asked if there were any further claims he wanted to make about what he claimed happened to him in Vietnam, he said after he left Vietnam he was told the authorities were looking for him and he was afraid to return to his country. He said he was afraid of being persecuted if he returned to Vietnam because he left Vietnam without permission. He said he was classified by the Vietnamese authorities as a “person against the country.”
When asked what he would do if he returned to Vietnam, the applicant said he would not know what to do. He said he would not know what would happen to him. He said he did not have any documents to return to Vietnam.
When asked who he feared in Vietnam, the applicant said he feared the authorities. He maintained his assertion that he was only ever hurt by the authorities on one occasion when he was in Vietnam.
After the break, the Tribunal discussed with the applicant the submissions he had provided. The Tribunal put to the applicant that there appeared to be a lot of details that he had not spoken about with the Tribunal regarding what he claimed happened to him in Vietnam.
The Tribunal put to the applicant that there were a number of details the Tribunal wanted to discuss with him. The Tribunal put to the applicant that he had provided a statutory declaration setting out a number of his claims. The applicant clarified that he was only applying for protection on behalf of himself only, and not in regard to his [Child].
The Tribunal spoke to the applicant about what appeared to be potential differences in his oral evidence and in his written claims. The Tribunal put to the applicant that he had told the Tribunal about his protest activities in Vietnam, and he said that the authorities came to his grandparents’ house, and that there was only one occasion he was harmed when he was in Vietnam and that this happened in either 2010 or 2011. In response, the applicant confirmed that this was what he had told the Tribunal.
The Tribunal spoke to the applicant about the incident in which he claimed he had been harmed. The Tribunal put to the applicant that he had told the Tribunal he was harmed in either 2010 or 2011, but in his statutory declaration he stated the harm happened in 2009 (Tribunal emphasis). In response, the applicant said he could not recall the time it happened because it happened a long time ago.
The Tribunal spoke to the applicant about his evidence where he stated in his statutory declaration that the police officer tried to force him to turn other members of his group in and join the Communist party (Tribunal emphasis), but that this was not what he told the Tribunal at the hearing. In response, the applicant said:
Yeah, that was a long time ago, and I could not be able to remember and to be honest I don’t want to remember because I remember that they came and they told us that we should join the Communists.
The Tribunal spoke to the applicant about his evidence where he said that he had worked in building and construction, but in his in his statutory declaration he stated that when he stopped going to school he started working with his mother on their farm – which is different to what he said in the hearing about his employment history. In response, the applicant said:
Yes, I actually worked in the farm as well to help my mother. I worked in the building site and also in the farm for my mother.
The Tribunal spoke to the applicant about his evidence in the hearing where he said that the Vietnamese authorities took his grandparents’ property in 2010, and that the police had hit his grandfather, but in his statutory declaration he stated that:
-his grandparents had organised a small protest in their village in which the whole family attended;
-during the protest, the applicant claimed he was beaten and hit on his chest and head by the police officers with their batons.
The Tribunal put to the applicant that the evidence in respect to this claim appeared to be inconsistent between what was written in the statutory declaration compared to what he had said in the hearing. In response, the applicant said:
There were different occasions. The time when they came to my grandparent’s house to demand to take over the land, my grandfather was hurt by the authorities. And another occasion where they organise the protest to keep the land of the church. They also hit my grandfather as well.
The Tribunal spoke to the applicant about his evidence in the hearing where he said that he and his friends would protest every Sunday at church, but that in his written claims this was not what he indicated. The Tribunal put to the applicant that in his statutory declaration he indicated that the protests, that he claimed had been organised by his grandparents, were a regular occurrence, that he had to report to police every week, and that sometimes the police would come to his grandparents’ house and beat him (the applicant) with a baton. The Tribunal put to the applicant that this appeared to be different from what he had told the Tribunal because in the hearing the applicant claimed that the authorities had taken his grandparents’ property, and that he (the applicant) had claimed that he was only ever harmed once – and not that he was subjected to other instances of harm as he had claimed in his written claims. The Tribunal put to the applicant that, due to the inconsistencies between his oral and written evidence, the Tribunal may find that the applicant had not given credible information in respect to his claims. In response, the applicant said:
I would just like to say that my grandparents wasn’t the ones who organised the protests. They got the authorisation from the father of the church. But as time when I got beat by the police was the time I attended to my grandparents house, while they came in and demand for the land, and they hit my grandfather, and I just tried to protect my grandfather and I got hit as well, but that is the one time. The second time, or the other time, when I was peacefully protesting and they captured me, they locked me up and they hit me. The two separate occasions.
The Tribunal put to the applicant that in the hearing the Tribunal had asked him about his protest activities, and in the hearing the applicant did not say that he was undertaking protests with his family, but rather he had indicated that it was just he and his friends who had protested. In response, he said “yes.” The Tribunal put to the applicant that this was not what he had previously said, and that what he previously said is that it was him and his family members. In response, he said:
When I referred to the family protests, we protest to keep our land. When I refer to my friends and I protest, that activity is a peaceful protest for human rights for our freedom of speech and our Catholic faith.
The Tribunal put to the applicant that in the hearing, the applicant never made any mention about refusing to join the Communist party, or anything about that, but in the statutory declaration he did make such claims. The Tribunal put to the applicant that there appeared to be inconsistencies between what the applicant said he did in Vietnam in respect to opposing the Vietnamese authorities – such as joining the Communist Party or not, or protesting for human rights. The Tribunal put to the applicant that in his written claims, he expressly referred to the issue of being opposed to the Communist Party and attempts or pressure being placed on him by the Vietnamese authorities to get him to join the Communist Party – claims that he had not made at the hearing. In response, he said:
I just only mentioned that they prevent us from gathering and from doing our activities.
The Tribunal put to the applicant that, in respect to the delegate’s decision record, the applicant appeared to have told the delegate that he had attended 5–6 protests relating to land confiscation (Tribunal emphasis) when he was in Vietnam, but that this was not what he had told the Tribunal, and that he had said to the Tribunal that he was protesting at the church every Sunday for human rights. The Tribunal put to the applicant that, due to the inconsistencies between the information he had provided to the delegate compared to the information he had provided to the Tribunal, the Tribunal may find that the applicant had not given credible information in respect to his claims. In response, the applicant said:
Yeah, I attended to the land confiscation protests. Those are different. But every Sunday the protests in our group, that’s also different. One is a protest for the land. And also the other one is a protest for the human rights.
The Tribunal put to the applicant that in the hearing, the applicant said he had been held by the authorities for five days, but he had previously claimed he had been held by the authorities for three days. In response, the applicant said:
That was quite long ago, I’m not sure. Maybe three or five.
The Tribunal spoke to the applicant about what he alleged was unauthorised access to his personal information in a “data breach” in 2014. In response, he said that his information was leaked and there was a “breach of confidentiality.”
The Tribunal put to the applicant that he said that he was never interviewed by any Vietnamese officials when he was in detention in Australia. The applicant in response confirmed that he was never interviewed by any Vietnamese officials when he was in detention in Australia.
The Tribunal put to the applicant that he had previously provided a copy of a “family registration book.” He agreed he had provided a copy of the book.
The Tribunal spoke to the applicant about the DFAT Country Information Report for Vietnam dated 11 January 2022 (hereafter referred to as the ‘DFAT report’) in respect to the prevalence of fraudulent documents. The Tribunal put to the applicant that it may find that the documents he had provided in respect to his protection claims are fraudulent documents. In response, the applicant said the Vietnamese authorities only report anything for themselves to make themselves look good. He said that the information “they put out there” is only to make “themselves look correct.”

The Tribunal spoke to the applicant about the DFAT report in respect to conditions for returnees. In response, the applicant questioned the information and indicated that he feels he would still face problems on his return to Vietnam.
The Tribunal put to the applicant that, given the country information, the Tribunal may find that the applicant would not face either a real chance of serious harm or a real risk of significant harm should he return to Vietnam in the foreseeable future. In response, the applicant said he left Vietnam when he had been “blacklisted” and “under surveillance” by the Vietnamese authorities. He said that if he were to return to Vietnam, he would be in “serious trouble” because he breached “the conditions.” He said even if he was not put in prison, he would be mistreated and would have difficulty in obtaining “paperwork and services and so on.”
The Tribunal put to the applicant that given the preliminary concerns about the credibility of his claims, as discussed with him in the hearing, the Tribunal may find that he had not given credible information in respect to his protection claims and may find that his claims were not credible. In response, the applicant said he was concerned about his safety if he returned to Vietnam, in that he was worried the authorities would put him in prison. In addition, he expressed concern that his [Child] would not have him around if he went back to Vietnam.
The Tribunal put to the applicant that if the Tribunal were to find that he had previously been involved in protest activities or that his grandfather’s property had been seized, that given he was a very young person when he left Vietnam, and he left Vietnam many years ago, the Tribunal may find that the applicant would reasonably have a very low risk profile and a very low chance that the Vietnamese authorities would have any interest in him should he return to Vietnam in the foreseeable future. In response, the applicant said he really could not comment. Then he said he thought that the Vietnamese authorities would not worry about whether you were young or old, but if they thought a person was involved in those activities they would be “blacklisted.” He said he thought that the Vietnamese authorities might view young people as potentially causing trouble in the future.
The Tribunal asked the applicant if there was anything further that he wanted to talk about that had not already been discussed in the hearing, and in response, he said “no.”
The Tribunal spoke to the applicant’s representative. The applicant’s representative indicated that she thought there was confusion. She said that the applicant organised protests, gatherings and praying, which are different to his claims about land confiscation. The applicant’s representative referred to a government decree about the Vietnam government acquiring land. The applicant’s representative indicated, in respect to the inconsistency in the applicant’s claims about how long he had been detained, that he had been consistent about being detained.
The Tribunal asked the applicant’s representative whether she wanted to provide written submissions to the Tribunal, and in response, she said she would provide written submissions by close of business Monday 5 December 2022. The applicant’s representative agreed that this was sufficient time to provide the submissions.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence before the Tribunal. As at the time of this decision, the applicant’s representative has not provided post‑hearing written submissions to the Tribunal. There has been more than sufficient opportunity for written submissions to be provided, and the Tribunal has decided to make a decision based on the available information.
The Tribunal accepts that the applicant was born on [Date] in [Ward], [Village], Nghe An Province, Vietnam. The Tribunal accepts that the applicant is a citizen of Vietnam. The Tribunal accepts that the applicant’s ethnic group is “Kinh.” However, the applicant did not raise any specific claim of harm to him as a result of his ethnicity. The Tribunal therefore does not accept that the evidence supports any reasonable finding that the applicant would either face a real chance of serious harm or a real risk of significant harm due to his ethnicity should he return to Vietnam in the foreseeable future.
The Tribunal accepts that the applicant’s religion is Catholic.
A significant part of the applicant’s claim for protection is that he claimed he had been persecuted in Vietnam because he was a Catholic.
Specifically, the Tribunal has considered the claim that in or around 2008, when he was around [Age] years old, his friend and himself helped to organise a youth group that campaigned for religious freedom and human rights. He claimed the Vietnamese authorities tried to stop the young people from organising the activities within the church.
In the hearing, the Tribunal spoke to the applicant about this particular claim. However, the Tribunal finds that the information he gave in respect to this claim was vague and lacking in detail – to the point where the Tribunal is unable to be reasonably satisfied that the applicant’s claim in this respect is credible.
The applicant’s explanation as to exactly what he did that drew the ire of the Vietnamese authorities – that he was “planning” to set up a “group meeting” to “pray” and to ask the Vietnamese government to return “our land” and also to provide the freedom to practise religion – was not persuasive. In response to further questioning, the applicant’s response appeared to simply morph into a discussion about fighting for land rather than specifically the issue of “religious freedom and human rights” as he had claimed.
Accordingly, the Tribunal is not satisfied that the applicant’s claims in this respect are credible. The Tribunal therefore does not accept that in or around 2008, when he was around [Age] years old, his friend and himself helped to organise a youth group that campaigned for religious freedom and human rights or that the Vietnamese authorities tried to stop the young people from organising the activities within the church at this time.
The Tribunal has considered the applicant’s claim that in around 2009, when he was [Age] years old, he was arrested and harmed by Vietnamese police. It is a significant event in his written claims and he provided a significant amount of detail in respect to this incident in his written claims. In his written claims, he stated that he had been arrested along with around 10 other people. He specifically stated that:
-After being arrested, he and the others were taken to the local police station where they were all detained in a large room inside the police station.
-Whilst he was held in the room, he was beaten by a number of police officers (Tribunal emphasis).
-The police beat him all over his body and his head with their batons (Tribunal emphasis).
-He was so badly beaten that blood came out of his mouth (Tribunal emphasis).
-The other people who were detained were also all beaten badly by the police officers (Tribunal emphasis).
-After he was badly beaten, he was taken to another room for further interrogation during which the police told him that he should stop being a Catholic.
-The police tried to force him to turn other members of his group in (Tribunal emphasis).
-The police tried to force him to join the Communist party (Tribunal emphasis).
-The police told him that if he stopped being a Catholic, turned other members of his group in and joined the Communist Party, he would receive undisclosed privileges and he would be protected but he refused their request (Tribunal emphasis).
-The police got angry then and hit him again (Tribunal emphasis).
-The police told him that his name would be recorded on a watch list and he would be monitored from then on (Tribunal emphasis).
-After the interrogation, he was returned to the large room and he was held there for about 5 days (Tribunal emphasis) and during that time the police officers came every day to threaten him and the other detainees.
-After he was released from the police station, he went home.
-The police told him that he would not be allowed to leave the village without getting permission from the local authorities.
-He left school and started working with his mum on their farm.
On any reasonable view, this is a substantial and detailed claim of alleged harm.
In the hearing, the Tribunal discussed preliminary concerns in respect to what appeared to be an inconsistency between the applicant’s evidence that he provided at the hearing in relation to his written claims. The applicant’s response as to why he claimed the incident happened sometime in 2010 or 2011, and not in 2009 as he had claimed in his written claims, raised concerns for the Tribunal as to the credibility of the applicant’s claims. Even though the alleged incident happened a long time ago, the Tribunal would have reasonably expected that the applicant would have an accurate recollection as to which year such a significant incident allegedly happened. The Tribunal’s concerns in this respect were reinforced by the lack of detail the applicant provided about the alleged incident. Whilst the Tribunal acknowledges that the applicant said he was hit with a rod on his back and all around his body, the Tribunal would have reasonably expected the applicant to have provided more detail around such a significant incident in which he and others were allegedly detained for days and brutally beaten. It was also concerning that in his account provided at the hearing, he did not initially speak about the other alleged actions by the Vietnamese police, where he alleged in his statutory declaration that the police officer tried to force him to turn other members of his group in and join the Communist party (Tribunal emphasis). The Tribunal is not satisfied by the applicant’s explanation as to why he failed to provide sufficient details at the hearing about the police officer who allegedly tried to force him to turn other members of his group in and join the Communist party (Tribunal emphasis). Given this appears to be a key aspect of the applicant’s claim, that he was harmed by the Vietnamese authorities for political and religious reasons, the applicant’s failure to provide sufficient details at the hearing in relation to this aspect of his claims causes significant concerns for the Tribunal in respect to the credibility of the applicant’s claims. In considering the evidence as a whole, the Tribunal is not satisfied that the applicant has given credible information in respect to his claims of harm by the Vietnamese police.
It is also a concern for the Tribunal that the applicant maintained to the Tribunal during the hearing that he was only ever harmed on one occasion when he was in Vietnam. However, this is also not consistent with his written claims, where in his written claims he also claimed to have been beaten by the Vietnamese police in 2010 during a protest that he claimed was organised by his grandparents. In his written claims, the applicant indicated that in the alleged 2010 incident he received serious injuries at the hands of the Vietnamese police because he stated that he was bleeding and needed medical attention. He claimed he was denied the right to seek medical attention. Yet at the hearing, the applicant made no such claims. Also in his written claims, he indicated there were further incidents where he was allegedly beaten by the police, where he stated:
Sometimes, the police would come in my grandparent's house and beat me inside with their baton if I did not answer the questions the way they wanted me to answer.
The Tribunal did question the applicant about why there was such an inconsistency between his evidence at the hearing compared to his written claims. However, the Tribunal is simply not satisfied by the applicant’s explanation for the inconsistency. In the hearing, he said he was only ever harmed once in Vietnam, but that is not consistent with his written claims where he claimed he was harmed in 2009, and again in 2010, and again in further undated incidents at his grandparents’ house. Even though the alleged incidents allegedly happened a long time ago, the Tribunal is not satisfied by the applicant’s explanation about the inconsistency in his evidence in regard to the alleged claims of harm.
The Tribunal’s concerns about the applicant’s credibility are reinforced by the applicant’s evidence at the hearing where he claimed that normally after Sunday Mass they would go into a room and pray, and then they would go outside of the church (Tribunal emphasis). He said, in the backyard of the church, they would gather, pray and talk (Tribunal emphasis). He said that because they were under surveillance the authorities would often come there to “check on” them (Tribunal emphasis). He said the authorities told them they were not allowed to gather and demanded they break up (Tribunal emphasis). He said this happened “on Sunday.” When asked if he could recall any specific dates of these instances he said it happened every Sunday and, in fact, it would happen every Sunday for years and years (Tribunal emphasis). He said it would happen “all the time” from 2008–2013 (Tribunal emphasis) which was up to the time he left the country. The applicant’s evidence at the hearing is not consistent with his written claims in his statutory declaration in this respect. His written claims relate to a protest involving his grandparents and alleged repossession of their land by the Vietnamese authorities – not about the applicant’s alleged protest activities at a church every Sunday from 2008–2013. His explanation for the inconsistent information has not satisfied the Tribunal.
In considering the totality of the evidence and claims of harm by the applicant, the Tribunal is not satisfied that the applicant has provided any credible information in respect to his claims of harm that he was allegedly subjected to when he was in Vietnam. Specifically, the Tribunal does not accept that the applicant was ever involved in protest activities of any kind when he was in Vietnam. The Tribunal does not accept that the applicant was ever arrested or detained or harmed at any time for any reason by the Vietnamese authorities. The Tribunal finds that the applicant’s claims of harm at the hands of the Vietnamese authorities are not credible in their entirety. The Tribunal does not accept that the applicant was ever subjected to harm of any kind for any reason, including any political or religious reason, when he was in Vietnam.
The Tribunal however has considered the applicant’s chance or risk of harm on the basis that he is a Catholic should he return to Vietnam in the foreseeable future. The Tribunal has considered the DFAT report that states:
3.16 The Government recognises 38 religious organisations linked to 16 religious traditions, including Buddhism, Islam and Catholicism (Tribunal emphasis).
…
Catholics
3.22 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.
3.23 The Catholic Church is, by definition, united and can deal with the Government at a national level across Vietnam. Provincial authorities might also have relationships at the diocesan level; sometimes local relationships are better than the national level relationship. In general, relationships between the Government and the Church are cordial. Individual parishes need to be registered.
3.24 Most Catholics worship in churches as part of parishes. Some communities, particularly outside of cities, worship in homes of believers. These activities may be limited by authorities in some cases, but this differs from place to place. In general, Catholics in cities worship freely in churches.
3.25 Some Catholic communities are growing in size with evangelism or welfare efforts. This can occur especially where the local Catholic communities have good relationships with the Government. Some sources report that Catholic missionaries and officials have had difficulty reaching more remote parts of the country in recent years, which might be related to COVID‑19 restrictions. Written materials, such as newsletters, websites and social media materials exist, but their maintenance, distribution and promotion do not appear to be a priority for Catholic leaders.
3.26 There have been Catholic political movements that attract negative attention from authorities. The distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.
3.27 The ‘Red Flag Association’, a militant pro-Government movement allegedly under the direction of local governments, was reported to have disbanded in 2018. Red Flag Association activity included protests outside Catholic churches. In-country sources told DFAT that these protests have not occurred in the last two years and that such activity is now more likely to be online.
3.28 Land disputes have been reported, including the seizure of Catholic land and buildings. A particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished and the land sold. Appropriated land might be sold to the private sector for development. Conversely, much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades. That process continues, including during the COVID-19 pandemic, reportedly in return for cooperation of the Church with authorities during the pandemic.
3.29 Church officials do not have official relationships with the Catholic Church overseas (except perhaps the Vatican), but in-country sources told DFAT that individual Catholics or communities have relationships with the diaspora overseas, including in Australia, and these relationships are generally unhindered.
3.30 In-country sources told DFAT Catholics generally do not experience societal discrimination (Tribunal emphasis). Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination (Tribunal emphasis).
3.31 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment (Tribunal emphasis). In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation (Tribunal emphasis). Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.
In consideration of the country information above, the Tribunal is not satisfied that the applicant will face either a real chance of serious harm or a real risk of significant harm should he return to Vietnam in the foreseeable future – purely on the basis of him being a Catholic.
The Tribunal has also considered the applicant’s concerns he raised about the level of interest that the Vietnamese authorities might have in him due to the 2014 data breach, now nearly a decade ago, or his concern about whether the Vietnamese authorities may become aware that he claimed asylum in Australia. The Tribunal accepts that the applicant said that he was never interviewed by any Vietnamese officials when he was in detention in Australia. In considering the information before the Tribunal, the Tribunal is not satisfied that the Vietnamese authorities have any particular interest in the applicant. The Tribunal does not accept that the applicant is “blacklisted” by the Vietnamese authorities or that the Vietnamese authorities are looking for him.

The information in the DFAT report further supports the Tribunal’s findings in this respect:
Conditions for returnees
5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures (Tribunal emphasis).
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose (Tribunal emphasis).
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34 Being a failed asylum seeker is not generally stigmatised (Tribunal emphasis). Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship (Tribunal emphasis).
5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals (Tribunal emphasis). Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum (Tribunal emphasis). This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.
The Tribunal accepts that the applicant may, at most, receive an administrative fine on his return to Vietnam. The Tribunal accepts that the applicant is unlikely to be stigmatised on the basis of being a failed asylum seeker should he return to Vietnam in the foreseeable future. The Tribunal accepts that the applicant is likely to seen by the Vietnamese authorities as a victim and not as a criminal.
The Tribunal has considered the applicant’s concerns about his access to identity documents such as National ID card, driver licence, passport and/or a family household registration book. The Tribunal accepts that the applicant had previously provided a copy of a “family registration book.” However, the Tribunal has considered the information in the DFAT report in respect to the prevalence of fraudulent documents:
5.42 Document fraud is common in Vietnam. DFAT understands from sources that fraudulently obtained genuine documents are more common than documents that were fake in the first place. This is sometimes facilitated through corruption, but could also depend on where the document is issued and the skill and experience of the issuing officer. Another common practice is to exit Vietnam on a genuine document then use non-genuine documents once airside or upon arrival at a port at another country. The opposite is also reported by sources: people will exit via a land border crossing (which may be subject to less stringent checks) and then use their genuine passport once outside Vietnam.
5.43 Source identification documents are held at the local level but might be paper‑based, which can make fraudulent documents easier to use. CICs are now issued with a 12‑digit number that is linked back to a database, but old, paper-based documents continue in circulation. The new cards can be checked against the database and fraud is more difficult to undertake.
5.44 Another common form of fraud is to doctor documents using applications like Photoshop that are then uploaded onto online systems. Fraudulent documents of this type are easily detected, especially when the original is later presented and it does not match the doctored copy uploaded to the system.
The Tribunal finds that the documents that he had provided in respect to his protection claims, including the copy of a “family registration book” without the applicant’s name – ostensibly to show that the applicant has been removed from the family book and he is no longer recognised as a resident in Vietnam – to be fraudulent documents. Accordingly, the Tribunal places no weight on the copy of a “family registration book” or any other documents that the applicant provided in respect to his protection claims.
The Tribunal accepts that the applicant may be concerned about his [Child] if he returned to Vietnam. Whilst the Tribunal accepts that his contact with his [Child] would be a reasonable concern to the applicant, the issues raised in this respect do not reasonably cause the Tribunal to find that the applicant would face either a real chance of serious harm or a real risk of significant harm, for this reason, should he return to Vietnam in the foreseeable future. The applicant’s [Child] is not a party to this protection application.
In considering the totality of the claims and evidence, the Tribunal is not satisfied that the applicant would face either a real chance of serious harm or a real risk of significant harm, for any reason, should he return to Vietnam in the foreseeable future.
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).
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).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2636

9 June 2023

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