2100304 (Refugee)
[2024] AATA 2882
•10 July 2024
2100304 (Refugee) [2024] AATA 2882 (10 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Khanh Hoang (MARN: 2015332)
CASE NUMBER: 2100304
COUNTRY OF REFERENCE: Vietnam
MEMBER:Paul Windsor
DATE:10 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 July 2024 at 10:36 am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – anti-government protests – particular social group – illegal departure – attacks on church buildings and priests – fear of detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347Any 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 22 December 2020 to refuse to grant the applicant a Class XE Safe Haven Enterprise) subclass 790 (Safe Haven Enterprise) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 23 August 2020.
Previous application for a Safe Haven Enterprise visa
According to Departmental records, the applicant arrived in Australia by sea without a valid visa at the Territory of Ashmore and Cartier Islands in April 2013, on a boat from Indonesia codenamed [name]. At the time, this was thought to make him an unauthorised maritime arrival (UMA).
The Tribunal notes that the applicant previously made an application for a Safe Haven Enterprise visa on 19 June 2017.
On 23 July 2020, the Department wrote to the applicant advising him that, as a consequence of the judgement by the Full Federal Court in DBB16 v MIBP (2018) 260 FCR 447, made on 6 August 2018, he is not an UMA, as previously was thought to be the case, and his application made on 19 June 2017 is invalid and cannot be considered.[1] At the time, the Department considered that the application was invalid due to the operation of s 91K of the Act.
[1] See the Departmental file.
Accordingly, the then Minister determined under s 91L that s 91K would not apply if the applicant made a further visa application, and he was invited to make another application. The applicant made the current Safe Haven Enterprise visa application on 23 August 2020. As no decision had been made on the previous application, there was no s 48A bar against the making of a further protection visa application in Australia.
The Tribunal notes that in MICMSMA v CBW20 [2021] FCAFC 63, made on 4 May 2021, the Full Federal Court found s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. This means the applicant’s initial Safe Haven Enterprise visa made on 19 June 2017, on which no decision was made, was not invalid due to the operation of s 91K.
Current application for a Safe Haven Enterprise visa
In reviewing the decision of 22 December 2020 refusing to grant the applicant a Safe Haven Enterprise visa, the Tribunal has also taken into consideration the material contained in the previous application and supporting documents.
The Tribunal notes that the applicant provided a statutory declaration sworn on 16 June 2017 in support of the initial application. The content of this statutory declaration was replicated in an unsworn statement dated 21 August 2020 included with the current application.[2]
[2] Ibid.
In his application, the applicant indicated he was born on [date] in [his home town] in [District 1] of Nghe An province, Vietnam. He stated he is ethnic Kinh, of the Catholic faith and has never married. He indicated he departed Vietnam illegally by boat, without a passport, [in] March 2013 and arrived at Darwin, Australia [in] April 2013.[3]
[3] Ibid.
In the attached statement, the applicant indicated he fled Vietnam because he feared he would be harmed by the Vietnamese authorities because of his Catholic religion, his involvement in an anti-government protest and because he departed Vietnam illegally.[4]
[4] Ibid.
The delegate refused to grant the visa on the basis that she did not accept the applicant had been involved in protest activities in Vietnam and found that country information indicates that Catholics who are not involved in protests or political activities are not being systematically targeted by the Vietnamese government or police due to their religious beliefs and activities.
The applicant sought review of this decision on 11 January 2021. He provided the Tribunal with a copy of the delegate’s decision record.[5]
[5] See the Tribunal file.
The applicant appeared before the Tribunal on 12 April 2024 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 (the Department), 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
Claims
The applicant’s claims for protection were set out in a statutory declaration made on 16 June 2017 included with his initial Safe Haven Enterprise visa application, and replicated in the statement dated 21 August 2020 included with the current application.[6] His claims from this statutory declaration are summarised as follows:
[6] See The Departmental file.
·He fears that, if he was to be returned to Vietnam, he will be detained and harmed by the Vietnamese authorities because of his Catholic religion, involvement in an anti-Government protest in 2012 and because he fled Vietnam illegally. He will not be able to practise his faith freely.
·He fled Vietnam because the police were pursuing him and he fears that if he returns, the authorities will continue to pursue him and will hurt him.
·He has practised his Catholic religion all his life. He attended a local parish in Nghe An where he was a youth member. His uncles, [Uncle A] and [Uncle B] also attended this church.
·The church youth group had weekly meetings which involved religious discussions, singing religious songs and dancing. He also attended mass on Sundays with his family.
·At school he was treated differently and received harsher punishments because he was a Catholic.
·The Catholic people started to have problems in Nghe An in 2012 because police began to attack the churches in their area. He doesn’t think it happened to the church he attended, but it happened to several churches in the nearby area.
·In one case, police tried to use a tractor to pull part of one of the churches down. That church was about two hours’ drive from his house. Priests who tried to defend the churches were attacked. He saw a photograph that had been taken by his uncle, [Uncle B], of priests being attacked by a group of police with batons just outside a church. He heard about police coming to churches and smashing religious statues.
·After these events, Catholic people in his area were very angry, so a number of protests were organised. These occurred in around June and July 2012. He joined in two of the protests and held up anti-government banners stating that what the government was doing was wrong.
·About two weeks after the protest the police sent a warrant to his house asking that he report for questioning about causing a disturbance at a public place. His two uncles received similar warrants. They were scared because the police have a very bad reputation in Vietnam.
·He had heard stories from his parents and his parish priest, a man named [Father A], that the local police arrest people and then beat and torture them once they are in custody.
·About a week later, he received a second warrant. His family decided that he and his uncles should flee Nghe An province to avoid being arrested. They left a few days after the second warrant arrived.
·He left his family home in Nghe An on [a date in] August 2012 and travelled to Binh Duong province with his two uncles, where they stayed at a relative’s house. He was [age] years old at the time (note: as he was born on [date], he would [been an older age then]).
·His mother told him that within the first 3 months after he left to go to Binh Duong the police came to their home twice asking after him. They knew they could not stay in Binh Duong forever because eventually the authorities would find them, so they decided to leave Vietnam.
·One night in March or April 2013, he and his two uncles travelled by car to the shore where they got on a boat which took them to a larger boat which then travelled to Australia, taking about [number] days. This was all organised by his uncles. He believes he arrived in Australia on approximately [a date in] April 2013.
·Because he has been away, he would have been removed from his family’s Ho Khau (household registration).
·The government would know he has not been in the country. He is at risk of being punished because he left Vietnam illegally.
·He is also scared because of the Departmental privacy breach which may have revealed that he was in Community Detention on 31 January 2014.
·He cannot seek state protection because it is the government that he fears would harm him.
·He cannot relocate because the police have networks all over the country. He would find it difficult to find work outside of Nghe An province.
While the applicant’s statement of 21 August 2020 was almost identical to his statutory declaration of 16 June 2017, he did raise an additional matter, commenting that he has continued to practise his religion in Australia and attends a Catholic church in [a town] in Victoria.[7]
[7] Ibid.
Also included with the initial application was an undated ‘Country Information Package’ prepared by the Asylum Seeker Resource Centre. This included country information regarding Christians and Buddhists in Vietnam; political activists/protesters; failed asylum seekers; women; state protection; relocation and household registration.[8]
[8] See the Departmental file
The Departmental file also includes a copy of a report prepared by the Australia Human Rights Commission in 2017 (AusHRC 118) titled Nine Vietnamese men in Immigration detention v Commonwealth of Australia (DIBP). This documents the AHRCs investigation of a complaint made on behalf of nine Vietnamese men in immigration detention who alleged that the Department allowed Vietnamese officials to interview the men without ensuring proper arrangements were put in place to minimise the risk of disclosure of facts concerning their claims for protection. The report found that in eight cases interviews were conducted in a way that amounted to a failure to respect the complainants’ humanity and inherent dignity and to protect their privacy, contrary to articles 10 and 17 respectively of the International Covenant on Civil and Political Rights.[9]
[9] Ibid.
The delegate’s decision record indicates that the applicant raised the following additional matters at the interview held with the delegate on 23 November 2020:[10]
·He participated in protests at [Town 1] church. It is two hours away by bus from where he lived. He participated in two protests there with other youth group members.
·He was punished at school for taking Christmas day off to attend mass. He had to clean the toilet. He was bullied by other students regarding his Catholic religion.
·He fears having to do compulsory military service as he may be treated badly because he is a Catholic.
[10] Ibid.
On 26 November 2020, the applicant submitted to the Department copies of two summonses, dated [in] July 2012 and [August] 2012. These ‘request’ that the applicant present at the Police office of [Town 2], [District 1], at 1430hrs sharp on [a day in] July 2012 and [a day in] August 2012 respectively, to meet with [Officer A], [Position 1] of the Police Office of [Town 2]. The reason given was: ‘Investigating into the issue relating to the public order disturbance’.
On 10 April 2024, the current representative provided a pre-hearing submission in support of the applicant’s claims for protection.[11] This indicated that the applicant continues to rely on his statutory declaration of 16 June 2017 and statement of 21 August 2020 to support his claims, as well as the submissions made to the Department. The following additional matters were raised in the submission:
·During 2011 to 2012 a large number of Catholic activists were arrested in Vietnam. They were sentenced and imprisoned for terms of between 3-20 years for distributing anti-government leaflets and ‘propaganda’ against the government.
·The local police maintain an interest in the applicant’s whereabouts. They visited his home in Vietnam in around 2018-19 inquiring about his location.
·In June 2022, the government published a draft decree under the Law on Belief and Religion that would tighten control and suppression and punishment for registered religious activities.
[11] See the Tribunal file.
The representative also submitted a copy of a photograph, purportedly of police visiting the applicant’s home in around 2018-19. She also made reference to and included copies of the following additional country information:
·An article dated 22 May 2012 by Human Rights Watch regarding the arrest of four Catholic activists during 2011-12.
·The 2024 OpenDoors World Watch List report regarding religious freedom for Christians in Vietnam (indicating Vietnam scored 68.3 out of 100).
·An article dated 4 October 2024 by Christianity Today regarding the impact of Decree 95 of the Law on Belief and Religion, which it is claimed will give the government more oversight and control over churches.
Evidence from the hearing
At the hearing, the applicant indicated he has his parents and [specified family members] still living in [Town 2], [District 1] in Nghe An province, Vietnam. He said his father, who is now [age] years old, is [an occupation 1]. He indicated his mother, who is [age] years old, used to sell [products] but has stopped working now. As outlined in his application, he said he has [specified family members] living in Vietnam. When asked, he indicated his [specified siblings are] married and live separately from his parents. He said his brother is [an occupation 1], like his father, while his sister is [an occupation 2]. He indicated his [another sibling] is still at school.
As indicated in his application, the applicant acknowledged that he was still at school (in [grade]) when he left Vietnam in March 2013, and was [age] years of age at the time. He said he had never worked while he was in Vietnam.
The applicant indicated that he has worked [in specified occupations] in Australia, having done the latter for the past three years. He indicated he does not have formal qualifications, but learnt from the people he worked for.
The applicant indicated he has a girlfriend in Australia but no children.
The applicant confirmed he travelled to Australia with [two uncles]. He said he is still living with his [uncle].
When asked about his family’s religious activities in Vietnam, the applicant said his whole family participated in church activities. He said both his mother and [one sibling] are teachers of religion for people at their church while his father looked after the church and organised religious activities.
When asked about his religious activities, the applicant said he was a member of the church youth group which met twice a week, on Fridays and Saturdays for 1-3 hours at a time, depending on the scheduled activities. He indicated that they studied the bible as well as undertook leisure activities. When asked, he indicated he was ‘Confirmed’ in the Catholic faith and took the name [name] as his Confirmation name. He also indicated he was baptized after he was born and took the sacrament of Confession (which he referred to as ‘declaring his sins’) between the age of 7-10 years.
When asked about his claim to have been discriminated against when he was at school because of his Catholic faith, the applicant said he was treated differently to other pupils by the teachers because of his faith. When asked in what ways he was treated differently, the applicant said he needed to go to church on Christmas Day but it was not a public holiday in Vietnam so he had to lodge an application to have his absence from school on that day approved. He said his teacher refused his application and told him that, if he stayed away, his ‘ethics’ score would be reduced, affecting his ‘behaviour’ assessment.
The Tribunal observed that the DFAT Country of Information Report advises that, while Vietnam is officially an atheist state, Article 24 of the Constitution guarantees a right of freedom of belief and religion; the 2020 US Department of State International Religious Freedom Report estimates, based on census data, that 14 per cent of Vietnamese have some religious faith, with 6 per cent of the population Catholic and 5 per cent Buddhist; and, while Catholics reside in most districts, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh provinces).[12]
[12] DFAT Country Information Report, Vietnam, 11 January 2022, sections and 3.13 and 3.22.
Given the country information, the Tribunal asked the applicant if there were other Catholics in his class. He said there was no Catholic school and indicated there were no other Catholics in his class, which comprised around 45 students. When asked where his [siblings] went to school, the applicant said they went to the same public primary and junior secondary school as him, but a different high school. When asked, he said the problems he faced were at his high school. He indicated there were 600-700 pupils of whom approximately 40 were Catholics. He said the Catholics at his high school all experienced the same problems because they were a minority and no-one protected them.
When queried that he had indicated at his interview with the delegate that he was punished by being made to clean the toilet, the applicant indicated that was in addition to being marked down on his ethical grade.
When asked for other examples of how he was discriminated against, the applicant indicated that the perception of the Catholic students that the school discriminated against them gave them ‘no mood’ to study and consequently a high proportion of Catholics quit school as they had no motivation to continue. When asked for examples of things that caused the Catholic students to feel this way, the applicant said there are many religious days but they were never allowed to take absence from school for their religious activities, otherwise they were marked down on their ethical grades and given punishments like cleaning the toilet and sweeping rubbish. He said he thought that was unfair, adding that the school had employees to do those things.
The Tribunal observed that he indicated [one] sister is [an occupation 2], commenting that is a professional role requiring tertiary level studies. He acknowledged that is the case. When queried whether his sister experienced the same discrimination as he claims he did, the applicant commented ‘not at university’. When queried that she must have done well enough at high school to be accepted into university, he said he was not sure.
When asked to tell the Tribunal what happened in July and August 2012, the applicant said in early July 2012 he joined his uncle at a demonstration along with his uncle in-law. He said they gave out leaflets showing their priest being beaten and handcuffed by the Vietnamese authorities. The Tribunal asked the applicant when this incident occurred, commenting that it did not recall him saying that his parish priest, [Father A] was beaten and handcuffed by the authorities. The applicant said it was not [Father A] he was referring to but was [Father B], of the [Town 1] Parish, which is where they went to demonstrate and ‘despatched’ leaflets.
The Tribunal queried whether he was holding banners, as stated in his statutory declaration, or handing out leaflets, which he did not mention in his statutory declaration. He said when they first arrived he was holding a banner but then his uncle gave him a bunch of leaflets to hand out, and these showed [Father B] being beaten and handcuffed by the authorities. He added that his uncle had these photos on a USB stick which he brought with him to Australia.
When asked, the applicant said the photos were taken in early July 2012, a day or two before the demonstration, which was held at [Town 1]. When asked, he said he attended the second demonstration where he distributed the leaflets. He said his uncle took the photographs at the first demonstration and then made copies which they took to the second demonstration which happened roughly on [a day in] July 2012. The Tribunal commented that it was a bit confused, and sought clarification that he was saying that there were some photos taken of the priest being beaten and handcuffed and [a few] days later he attended a demonstration. The applicant said at the first demonstration, his uncle took some photos of people being ‘suppressed and the priest being beaten and handcuffed. He said his uncle then made A4 photocopies of the photos which they ‘despatched’ to people at the second demonstration to show what had happened in the first demonstration. The Tribunal queried the applicant that he is saying the two incidents were just a couple of days apart and were both at [Town 1]. He indicated that was the case.
When asked, the applicant said he did not participate in any other demonstrations because he and his uncle and uncle-in law ‘fled away’ after the second demonstration.
The Tribunal observed that the delegate’s decision record indicates he told the delegate at his interview with her (held on 23 November 2020) that the second protest took place three-four weeks later. The applicant commented that this may have been a mistranslation by the interpreter as people from Nghe An have a different accent which may have made it difficult for the interpreter to understand what he said at the time.
When asked, the applicant indicated that both of his uncles attended the demonstrations, commenting that they [assisted people to attend] the demonstrations.
The Tribunal asked the applicant how they were alerted that the first demonstration was to happen. He said his uncles told him on the day and asked him if he wished to accompany them. He added that they wanted to have as many people attend as possible to put pressure on the authorities and to protect their parishes. The Tribunal asked the applicant why they felt there was a need to hold a demonstration that day. He said they had received information from the Father of [Town 1] Parish calling for people to come and support them to protest against the authorities for wrecking their church. The Tribunal asked the applicant when it was that the authorities wrecked the church at [Town 1]. He replied, ‘in early July’. The Tribunal commented that it is getting confused because he is saying the first demonstration was in early July. The Tribunal asked if he is saying there was an incident, before they went to the first demonstration, at which the church was attacked and wrecked. He said he was [age range] years old at the time and was told about it by his uncle who told him to come along so he went with him to protect their faith.
The Tribunal asked the applicant if there were any other big protests in Nghe An around that time. He said he doesn’t know. The Tribunal asked if there were other protests by Catholics in July 2012. He said he doesn’t know.
When asked, the applicant indicated he was not harmed at the protests he attended. He added that after that he was summoned by the authorities.
The Tribunal observed that country information drawn from various media sources at the time indicates that there was an incident on [an earlier day in] July 2012 at a Catholic Chapel in [Town 1], which had been established on land donated by a parishioner and used for religious activities from April 2010, which the authorities did not approve of. The country information indicates that when the parish priest, [Father B variant], came to the Chapel to celebrate mass on [the earlier day in] July 2012, a mob of police, thugs and security agents forced their way into the chapel, ridiculed and beat clergy and parishioners, ransacked and smashed furniture and other assets and smashed [a fixture].[13] When news of this spread, a large number of parishioners came to support those affected. The Tribunal observed that the country information it has seen doesn’t indicate there were further protests at [Town 1], but indicates that there was a huge protest in Vinh City, the capital of Nghe An province, on 15 July 2012, involving tens of thousands of Catholics. The Tribunal commented that it is surprised he does not know about that, given that the country information indicates that, at the encouragement of the Bishop of Vinh, Catholics from 178 parishes in the diocese of Vinh participated.
[13] [Deleted]
The applicant commented that they did not attend the huge protest in Vinh because he and his uncles ran away after the second protest at [Town 1]. The Tribunal observed that this comment is inconsistent with his earlier evidence, including the copies of the summonses he provided to the Department. The Tribunal noted the two summonses are dated [in] July 2012 and [August] 2012, well after the mass protest on 15 July 2012, and his written statements indicated that it was after they received the second summons that they decided to flee to Binh Duong province. The applicant commented that, after the second [Town 1] demonstration, they each received a summons from the police, before the huge 15 July protest. He said on receipt of these they were afraid of what would happen to them so they hid somewhere locally and then when they received a further summons they fled to Binh Duong province.
The Tribunal reiterated that the copies of the summonses he submitted to the Department were dated [in] July 2012 and [August] 2012, after the big protest on 15 July 2012, and he has consistently said in his statements that it after they received the second summons that they fled. The applicant responded that other protesters had received summonses about two weeks before they did, so they were afraid they would also receive the same so hid somewhere in the locality and did not stay at home.
The Tribunal observed that those incidents were a long time ago and country information seems to indicate that the situation for Catholics in Nghe An province has improved dramatically since that time. The Tribunal commented that country information indicates that, while there were further clashes between Catholics and government authorities in Nghe An province over land ownership in 2013, normal Catholic church activities were reported in Vinh diocese in 2014.[14] It was reported in September 2014 that the Bishop of Vinh diocese said that since the September 2013 clashes, ‘dialogues have helped address the situation’.
[14] ‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia, 10 September 2014, >
The Tribunal also mentioned the following, drawn from the current DFAT report:[15]
·The Law on Belief and Religion came into effect on 1 January 2018. It established a role for the state in protecting religious freedoms and established legal personhood for religious groups. It requires such groups to register with the Government.
·The Government recognises 38 religious organisations linked to 16 religious traditions, including Catholicism.
·Registered groups worship with limited or no Government interference.
·In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations and Catholics generally do not experience societal discrimination.
·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.
·In general, relationships between the Government and the Church are cordial.
·DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. 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.
[15] DFAT Country Information Report, Vietnam, 11 January 2022, sections 3.14, 3.16, 3.21-3.31.
The Tribunal asked the applicant, given the relevant country information, what he fears now should he have to return to Vietnam. The applicant commented that his fear is based on what happened in the past. He said Catholics want to protect their faith and if similar things happened again in the future, he would stand up to protect his faith and fight against ‘suppression’, including if the conflict is over land ownership between the church and the authorities. He added that he feels there is a good chance this will happen in the future. The applicant also commented that, while the information in the media looks good, only the Catholic people know what is really going on in Vietnam and it is not as good as it appears in the media.
The Tribunal asked the applicant about the concerns he had raised previously about having to do military service. The Tribunal observed that the DFAT report indicates military service in Vietnam is compulsory for men aged between 18-25 years,[16] and asked if his brother had done it. He replied, ‘not yet’. When asked how old his brother is, the applicant said he is [over that age] (note: he had indicated in his application that his brother was born on [date], which would make him [over that] age). When asked how his brother has avoided doing military service, the applicant said his brother was studying and working and so was exempt. When queried, the applicant acknowledged that he is now outside the age bracket required to do compulsory military service. When asked if he had any continuing concerns regarding compulsory military service, he indicated he does not because he is now outside the service age and therefore is exempt.
[16] DFAT Country Information Report, Vietnam, 11 January 2022, section 3.110.
The Tribunal also discussed with the applicant the Departmental data breach, which occurred in February 2014 when a report released on the Department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. The Tribunal observed that the advice given to him by the Department (which he declined to sign), indicated what information it might have been possible for people to access, and the Tribunal acknowledges that it may have been possible for the Vietnamese authorities to access that data, but the data was limited to biographical data such as names and dates of birth regarding people who were in immigration detention. The Tribunal added that the information did not indicate that the person had applied for protection or the basis on which they had sought protection, noting that not everyone who was in immigration detention would have made a protection visa application. The applicant commented that he received a summons from the police while he was in Vietnam so they have his details and his concern is that now, because of the data breach, they would know he is living in Australia and has applied for protection in Australia. The Tribunal commented that the Vietnamese authorities would not know this for sure from the data breach but acknowledged that they may think he could have sought protection in Australia.
In relation to his claims that he would have been removed from his family’s household registration book (Ho Khau), the Tribunal observed that country information indicates that the household registration book was to be abolished in 2020 and replaced with a new online database.[17] Personal administrative procedures were to be linked to an individual’s 12 digit personal identification number, held on a national database. Permanent residence registration would be deleted if a person was absent for more than 12 months without registering their temporary residence in other places. People could, however, re-register their former place of residence when returning to their locality.[18] The applicant acknowledged this was the case.
[17] DFAT Country Information Report, Vietnam, 13 December 2019, section 5.48.
[18] ‘Management of citizen residence to be digitalized’, Vietnam Law and Legal Forum, 25 May 2020, Management of citizen residence to be digitalized (vietnamlawmagazine.vn).
The Tribunal observed that the DFAT report indicates that document fraud is common in Vietnam, both fake documents and fraudulently obtained genuine documents.[19] The Tribunal commented that this means a document could be fake and therefore the Tribunal needs to be cautious regarding what weight it gives to documents submitted in support of claims. The applicant did not have any comments he wished to make on this advice.
[19] DFAT Country Information Report, Vietnam, 11 January 2022, section 5.42.
The Tribunal also shared with the applicant advice drawn from the current DFAT report regarding people who had departed Vietnam without a passport, and therefore had departed illegally, and who would be returning as a failed asylum seeker. The DFAT report indicates that, while there are penalties in the Penal Code relating to instigating illegal emigration for the purpose of opposing the People’s Government’, DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia. DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. DFAT states 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. DFAT indicates it 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. They comment that being a failed asylum seeker is not generally stigmatised, noting that migration, particularly internal migration, has been a feature of Vietnamese lives for decades and is very common. DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals.[20]
[20] DFAT Country Information Report, Vietnam, 11 January 2022, sections 5.29-5.35.
The applicant commented that if he has to return he fears that if something happens in Vietnam there will be further suppression. He reiterated that he would then feel compelled to stand up and protest to protect the Catholic faith. He said he would then face the same problems as occurred in relation to [Town 1 variant] in 2012.
When asked, the applicant indicated there were no other matters he wished to raise. The representative indicated she did not wish to make any further oral or written submissions.
Findings and reasons
Identity
On the basis of the uncertified copies of his Vietnamese birth certificate, family registration booklet and Victorian driver’s submitted to the Department,[21] and noting his consistent evidence in relation to his identity and the delegate’s findings regarding this matter, the Tribunal accepts that the applicant is a national of Vietnam and that his identity is as claimed. The Tribunal accepts that Vietnam is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[21] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Assessment of claims
Background
The Tribunal finds the applicant is [an age] year old ethnic Kinh man of the Catholic faith from [Town 2] in [District 1], Nghe An province, Vietnam as claimed.
The Tribunal accepts that the applicant and his family members, including his parents, siblings and his [Uncle A] and uncle-in-law [Uncle B], were active in practising their Catholic faith in their local parish, where [Father A] was the parish priest.
The Tribunal accepts that the applicant was a member of his parish Catholic youth group and attended weekly religious studies and leisure activities as part of this group.
Claim to have been discrimination against at high school due to his Catholic faith
The country information cited above indicates that, while Vietnam is officially an atheist state, the Constitution guarantees a right of freedom of religion and belief. Catholics represent 6 per cent of the population, which is estimated to be about 100 million people,[22] with the highest concentration being in provinces in central Vietnam, including the applicant’s home province of Nghe An.
[22] DFAT Country Information Report, Vietnam, 11 January 2022, section 2.4.
The Tribunal accepts that there was no Catholic school that the applicant could attend and that Catholic religious festivals such as Christmas are not public holidays in Vietnam. The Tribunal accepts the applicant’s claim that he was discriminated against by teachers at his high school because they would not grant him permission to be absent from school to participate in religious activities, such as attending mass, during school hours on Christmas Day and other days marking significant Catholic religious festivals. The applicant has indicated that, on one occasion, he was punished by being made to clean the toilet, and was marked down on his behaviour assessment, for taking unapproved leave of absence for religious reasons. He indicated such punishments were de-motivating for the Catholic students and resulted in many of them leaving school early. Apart from not being permitted to take leave of absence from school for their religious activities, when asked, the applicant did not provide any other examples of how he and other Catholic students were discriminated against.
The Tribunal accepts that the applicant suffered low-level discrimination from teachers/school officials due to his Catholic faith as claimed, but finds that this does not amount to persecution involving serious harm. As discussed with the applicant, DFAT indicates that in-country sources report Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations (such as Nghe An province), and Catholics generally do not experience societal discrimination. There is no evidence that the applicant was stopped from engaging in faith-based activities outside of school hours, nor was he prevented from attending school. He did not leave school early but was in [grade] at high school when he departed Vietnam in 2013. He also indicated that his sister, who was active at their local church, attended university and now works as [an occupation 2].
Claimed involvement in protest activities
The Tribunal accepts that there were tensions between local government authorities and members of the Catholic community in Nghe An province in 2011-2013. The country information cited above indicates that the incident at the chapel in [Town 1] on [an earlier day in] July 2012 was a very significant incident in Vinh diocese during this time. The country information indicates that [in] July 2012, the diocese of Vinh reported to all cardinals and bishops in Vietnam that the attack on [the earlier day in] July 2012 was the peak of harassments against Catholics in the region. In response, the diocese called for massive protests to demand an end to ongoing persecution by the local government and the immediate halt to the ongoing propaganda and defamation campaign against Catholics in the state media. Reporting indicates that, in spite of a massive police presence and the cancellation of ferries, tens of thousands of Catholics took to the streets on 15 July 2012 to protest the local government’s attacks on the [Town 1] parish community.
Given the above, the Tribunal accepts there was a very significant incident at a Catholic chapel in [Town 1] on [an earlier day in] July 2012.
The Tribunal finds, however, that the applicant’s evidence regarding his claimed involvement in two protests or demonstrations in response to this indicant, and what occurred as a consequence, is vague and inconsistent. In his statutory declaration, the applicant stated that protests occurred in June and July 2012 and he joined in two of the protests. He stated he ‘marched with the protesters’ and ‘held up anti-government banners’. He stated that about ‘two weeks after the protest’ the police sent a ‘warrant’ to his house asking him to report for questioning and about a week later, a second ‘warrant’ was sent. He stated that a ‘few days after’ he received the second warrant, his family decided that he and his uncles should flee Nghe An. He stated ‘I left my family home in Nghe An on [a date in] August 2012’ and travelled to Binh Duong province with his two uncles.
The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that he told the delegate at interview with her on 23 November 2020 that he attended two protests at [the Town 1] church, after travelling there by bus. He indicated there were many other buses carrying protesters from other parishes. The decision record indicates that he said he helped distribute leaflets on the bus, of pictures of uniformed police smashing statues in the church, and stood around the church holding banners while the police, who did not hurt them, sought to prevent them from entering the church. He stated the second protest was also at [Town 1] and took place three-four weeks later. He said it was similar to the first protest but there were more protesters and police/security and the situation was more tense.
Given the country information indicates the triggering incident at [Town 1] occurred on [an earlier day in] July 2012, and resulted in a massive protest in Vinh on Sunday 15 July 2012, the Tribunal sought at the hearing to get a clear understanding of the applicant’s involvement in these events. This proved difficult, however, as the applicant’s evidence was vague and inconsistent in relation to how many protests he actually attended, the timing of those protests and what happened afterwards. The applicant was also unaware of the massive protest held in Vinh on 15 July 2012, just two weeks after the attack on the chapel at [Town 1] on [the earlier day in] July 2012.
The applicant said when he first arrived at the protest he held a banner but then his uncle gave him leaflets to hand out, which showed [Father B] being beaten and handcuffed by the authorities (rather than police smashing statues as he indicated to the delegate). He said the photographs were taken by his uncle in early July a day or two before the demonstration (presumably on [the earlier day in] July 2012, when the chapel was attacked). He then referred to the ‘second’ demonstration as being on [a day in] July 2012. When queried that he was saying the two demonstrations were only a few days apart and were both at [Town 1], he indicated that was the case. He indicated he did not participate in any other demonstrations. This suggests the applicant only participated in one rather than two demonstrations, because he indicated that at the demonstration he handed out A4 photocopies of photos which he said had been taken by his uncle a few days earlier at a previous demonstration (which he referred to at the hearing as the first demonstration).
When queried further regarding the timeline of events and asked why they did not participate in the huge protest on 15 July 2012, the applicant initially said it was because he and his uncles ran away after the second protest in [Town 1] (that is after [the day in] July 2012). When queried that this is inconsistent with his previous written evidence (his statutory declaration and the summonses dated [in] July and [August] 2012) and his oral evidence to the delegate (as recorded in her decision record), the applicant initially maintained that they received summonses before the 15 July protest. When it was pointed out that the copies of the summonses he provided to the Department are dated [in] July and [August] 2012, the applicant altered his evidence. He then claimed that other protesters received summonses two weeks before they did, and when that happened, he and his uncles went into hiding locally. The applicant had never raised this previously and the Tribunal does not accept it is the case. The applicant’s statutory declaration makes no mention of his having immediately gone into hiding locally and states that he left his family home in Nghe An on [a date in] August 2012, a few days after receiving a second summons (which was dated [earlier in] August 2012). He made no mention of going into hiding locally in his oral evidence to the delegate (as recorded in her decision record). Accordingly, the Tribunal finds that the applicant left his family home on [that date in] August 2012.
Furthermore, when queried that he told the delegate at interview with her that the second protest he attended was held three-four weeks after the first, the applicant disputed this and commented that it must have been a mistranslation due to his ‘Nghe An’ accent. The Tribunal has listened to the section of the recording of the interview relating to the claimed protests and ensuing events, and does not consider there were any apparent issues with the interpreting or the delegate’s written record of what was said at the interview. Nor have any concerns been raised previously regarding these issues.
Consequently, the Tribunal has significant doubts that the applicant ever attended any protests at [Town 1] in July 2012 and that he received summonses dated [in] July and [August] 2012 requesting that he report to the local police for questioning. In relation to the summons documents, the Tribunal notes the DFAT advice regarding the prevalence of fake and fraudulently obtained genuine documents in Vietnam and, therefore, affords little evidentiary weight to the copies of the two claimed summons documents submitted to the Department after the interview with the delegate.
Affording the applicant the benefit of the doubt, and assuming he did attend at least one protest at the [Town 1] Chapel in July 2012, the Tribunal notes that the applicant was not harmed or arrested at the protest(s) or subsequently. He has not indicated that a warrant was ever issued for his arrest. If he was summonsed on [in] July and [August] 2012, the copies of the summonses provided indicate that he was only requested to come for questioning. He was only [age] years of age at the time of the incident and there is nothing to indicate or suggest he was an instigator of the protests, would be considered an activist as opposed to one of many participants from many parishes, or was otherwise of serious concern to the authorities. If that was the case, it would be expected that he would have been arrested at or after the protest; or once he failed to report as requested on [a day in] July or [a day in] August 2012; before he left his home on [a date in] August 2012. He has claimed that his mother told him police inquired about his whereabouts in the first three months after he left his home, but has not indicated that a warrant had been issued for his arrest at any time. Given this, the Tribunal considers that, if a summons was issued as claimed, police simply wanted to ask him a few questions and perhaps warn him not to participate in further protest activity. The Tribunal does not accept that he would have been detained, beaten and/or tortured as he claims he feared.
The applicant’s representative asserted in her submission of 10 April 2024 that ‘a large number of Catholic Activists’ were arrested in Vietnam in 2011 to 2012 and sentenced to imprisonment for between 3 to 20 years for distributing anti-government leaflets and conducting ‘propaganda’ against the government. The Human Rights Watch article dated 22 May 2012 she submitted in support of this assertion, however, calls for the immediate release of ‘four Catholic activists’ who were allegedly distributing pro-democracy leaflets.
The Tribunal finds that the circumstances of these four activists are not comparable to those of the applicant. DFAT indicates that Vietnam is a one-party state and opposition parties are effectively illegal. DFAT indicates that calls for democracy are sensitive and threats to the legitimacy of the Communist party of Vietnam (CPV) are not tolerated.[23] The Tribunal finds that the applicant, who may have attended one or two non-violent protests at the [Town 1] Chapel as [an age] year old, along with many other people, and has not been involved in any political or protest activities in Australia, cannot be considered to be an activist or to have been engaged in pro-democracy activities, either in Vietnam or in the more than 11 years he has been in Australia since April 2013.
[23] DFAT Country Information Report, Vietnam, 11 January 2022, sections 3.49 and 3.54.
The Tribunal accepts that local police called at the applicant’s family home sometime in 2018-18 and during that visit enquired about the applicant’s whereabouts. The copy of the photograph submitted suggests the visit involved a single police officer and was cordial. The Tribunal considers the most plausible reason for this visit is that police were undertaking a routine visit to update the family’s household register, and inquired about the applicant in this context. The Tribunal does not consider that this visit indicates that the authorities have any ongoing interest in the applicant in relation to any protests he may have attended in July 2012, when tens of thousands of Catholics protested across Vinh diocese.
The situation has improved since 2014
The Tribunal also finds the country information indicates that the situation for Catholics in Vietnam, including in Nghe An province, has improved dramatically since the applicant departed Vietnam.
As discussed at the hearing, country information indicates that in 2013 clashes of Catholics with government authorities over land ownership had been reported in two places in Nghe An province – the capital Vinh city in January and in the My Yen parish in April, August and September. In September 2014, the Bishop of Vinh diocese was reported as saying that since the September 2013 clashes, ‘dialogues have helped address the situation’.[24]
[24] ‘My Yen Incident, September 2013, Christian Solidarity Worldwide, 31 October 2013, My Yen incident, September 2013 - CSW;
The current DFAT report indicates that a new Law on Belief and Religion came into effect on 1 January 2018; that Catholics are among 38 religious groups that are recognised; registered groups worship with limited or no Government interference; and the militant ‘Red Flag Association’ has been disbanded. Nghe An province is one of the places with the highest concentration of Catholics in Vietnam, and in-country sources report that Catholics are generally able to practise freely at registered churches and receive the sacraments; and that, in general, relationships between the Government and the Church are cordial. Furthermore, the advice indicates that Catholics generally do not experience societal discrimination and Catholics who belong to registered churches and are not politically active face a low risk of official harassment.
In her submission of 10 April 2024, the representative submitted that the government had issued a draft decree under the Law on Belief and Religion that would tighten control and suppression of registered religious activities and increase penalties for non-compliance. The evidence submitted in support of this assertion is an article dated 5 April 2024 from Christianity Today magazine. The article comments that, under Decree 95, which had just gone into effect, ‘the government will now require religious groups to submit financial records and allow local government officials to suspend religious activities for unspecified ‘serious violations’’. The report acknowledges that ‘Christians can worship freely in the bigger cities’ and that ‘in the past few decades government officials have become more open to listening to Christians and making space for Christianity in the country’, but expresses concern at the government’s expanded financial oversight of churches and the ability of the government to suspend religious activities for serious violations of the rules. The Tribunal notes, however, that the report comments that ‘How the new rules will play out in reality remains to be seen’. One religious leader is quoted as stating ‘Despite what is written on paper, previous regulations have not been strictly enforced, and Christians with close relationships with government officials can continue worshipping in peace’.
The Tribunal considers that, while the new decree appears to give the government increased power to oversee and regulate registered religions, it is speculative to conclude that this will result in conflict between the government and registered religions in the future. In this regard, the Tribunal notes that the article comments that ‘Observers believe the decree is Vietnam’s attempt to demonstrate to the international community that it is trying to increase religious liberty and to get off the US State Department’s Special Watch List for countries engaged in religious freedom violations’, suggesting that it will not be used in a persecutory manner.
The Tribunal also considered the applicant’s comment at the hearing, in response to country information indicating the situation for Catholics has improved since 2011-13, suggesting that the information discussed with him is based on media reports that do not reflect the true situation. In this regard, the Tribunal notes DFAT’s comment that:
This report draws on DFAT’s on-the-ground knowledge and discussions with a range of sources in Vietnam and elsewhere. It takes into account information from government (including the Vietnamese Government) and non-government sources, including (but not limited to) those produced by: the US Department of State; the UK Home Office; World Bank; Transparency International; Amnesty International; Human Rights Watch; Reporters Without Borders; the Committee to Protect Journalists; relevant UN agencies; and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.[25]
[25] DFAT Country Information Report, Vietnam, 11 January 2022, section 1.4.
The Tribunal finds that the country information is drawn from a wide range of well-informed sources and not simply from media reports.
Claim to fear harm due to compulsory military service.
As discussed above, the applicant indicated at the hearing that [one] brother did not undertake compulsory military service and suffered no adverse consequences. He acknowledged that he is also now outside the 18-25 years age band where men are expected to undertake compulsory miliary service. He indicated he would now be exempt from compulsory military service and has no ongoing concerns that he might be required to complete compulsory miliary service on return to Vietnam.
Claim that he would be at risk of harm because he has been removed from his family’s household registration book (Ho Khau)
100. As discussed above, the applicant acknowledged at the hearing that the household registration booklet has been replaced with a new online database. He also acknowledged that, while his permanent registration would have been deleted because he has been away from Vietnam for more than 12 months, he could re-register his former place of residence when he returned there. Accordingly, the Tribunal does not accept that the applicant would face difficulties on his return to Vietnam because he has been removed from his family’s household registration record.
Claim to fear harm due to the ‘data breach’ and having applied for refugee status in Australia
101. The Tribunal accepts that the applicant would have been affected by the data breach in February 2014 (because he was in community detention on 1 January 2014) and it is possible Vietnamese authorities have accessed this data and know that he was in immigration detention in Australia in January 2014. As discussed with the applicant, the data released did not indicate that people had applied for protection visas or the basis on which they had made such applications. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm as a consequence of the data breach, or that the breach compounds any risk of harm he might face for other reasons discussed above or below.
102. The Tribunal has also considered the 2017 report prepared by the Australian Human Rights Commission in relation to the complaint by nine Vietnamese men who alleged that the Department allowed Vietnamese officials to interview them without ensuring proper arrangements were put in place to minimise the risk of disclosure of facts concerning their claims for protection. The applicant has not claimed and there is nothing to indicate or suggest this occurred in his case. Accordingly, the Tribunal finds the report is not relevant to his circumstances.
Return as a failed asylum seeker who departed Vietnam illegally
103. The Tribunal accepts that the applicant departed Vietnam without a passport (that is, illegally). The Tribunal also accepts that Vietnamese authorities may be aware that he was in immigration detention in Australia in January 2014 because of the data/privacy breach by the Department in February 2014. Neither of these events would indicate to the Vietnamese authorities that the applicant made a protection visa application in Australia or the basis for that application. The Tribunal accepts that if the applicant was returned to Vietnam, or sought a genuine Vietnamese passport to return to Vietnam voluntarily, the Vietnamese authorities might assume he was a failed asylum seeker who had departed Vietnam illegally.
104. As discussed with the applicant at the hearing, the Tribunal finds the relevant country information (cited above) indicates that he would likely be questioned by Vietnamese authorities upon his arrival in Vietnam, that this interview would likely take between one to two hours, and the interview would likely focus on obtaining information about the facilitation of his illegal departure. As DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose, it is most unlikely he would be held overnight. In line with the DFAT advice, the Tribunal finds that, as someone who was a would-be migrant who employed the services of people smugglers, he would, at worst, only face an administrative fine. In this regard, the Tribunal notes DFAT’s advice that being a failed asylum seeker is not generally stigmatised, that migration has been a feature of Vietnamese lives for decades and is very common and that most people who have been subject to people smuggling are seen by the Government as victims, not criminals.
105. The applicant commented at the end of the hearing that he fears that, if he returned to Vietnam and something happens there between the authorities and the Catholic church, there would be further ‘suppression’ of the church and he would feel compelled to stand up and protest to protect his faith, putting himself at risk of harm.
106. The Tribunal finds the applicant’s concern that there will be an incident between the Vietnamese authorities and the Catholic community in the future is speculative. Considering the applicant’s past circumstances and the Tribunal’s finding above that the authorities do not have an ongoing interest in him; the country information indicating the improved situation for Catholics in Vietnam, including in Nghe An province; and the applicant’s lack of involvement in political or pro-democracy activism both in Vietnam and Australia, the Tribunal finds the applicant could return to Vietnam without facing a real chance of suffering treatment amounting to persecution involving serious harm. In this regard, the Tribunal finds that a possible administrative fine for departing Vietnam illegally using a people smuggler does not amount to persecution involving serious harm, or to significant harm.
Conclusion - Refugee criterion
107. Having carefully considered all the available evidence, the relevant country information and the applicant’s claims, both individually and cumulatively, the Tribunal concludes there is not a real chance that he will face treatment amounting to persecution involving serious harm from the Communist Party of Vietnam government of Vietnam, its authorities and agents including the police, security authorities, hired thugs; or any other agency, organisation, group or individual, because of his Catholic religion, an actual or imputed political opinion of opposition to the Vietnamese government, or for any other of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Vietnam now or in the reasonably foreseeable future.
108. 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 criterion
109. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
110. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[26]
[26] 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 Jagot JJ at [297] and Flick J at [342].
111. Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
112. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
113. Considering the applicant’s circumstances and his claims individually and cumulatively, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from the Communist Party of Vietnam government of Vietnam, its authorities and agents including the police, security authorities, hired thugs; or any other agency, organisation, group or individual.
114. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
115. 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
116. The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
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36 Protection visas – criteria provided for by this Act
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(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.
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‘Vietnam: mass protests after government crackdown on Catholic Church’, ICN Independent Catholic News, 15 July 2012, Vietnam: mass protests after government crackdown on Catholic Church | ICN (indcatholicnews.com);
‘Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom’ AsiaNews.it, 16 July 2012, VIETNAM - VATICAN Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom. (asianews.it);
‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia, 10 September 2014,
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Statutory Construction
Natural Justice
Procedural Fairness
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