2101541 (Refugee)

2101541 (Refugee) [2023] AATA 1137 (8 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2101541
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tamara Hamilton-Noy
DATE:8 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2023 at 4:20pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – participation in religious protests – arrest warrant – political activities – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 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 10 February 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, arrived in Australia [in] April 2013 by [boat]. He was released from detention on a humanitarian stay visa and Bridging E visa on 16 October 2014.
The applicant lodged a Safe Haven Enterprise visa application on 19 June 2017 and on 7 August 2020 was notified the application was invalid.
The applicant lodged a further application for a Safe Haven Enterprise visa on 1 September 2020.
On 10 February 2021, a delegate of the Department found that the applicant was not a person to whom Australia has protection obligations.
The applicant appeared before the Tribunal on 14 December 2022 to give evidence and present arguments. The Tribunal was assisted at the hearing by a Vietnamese interpreter. The applicant’s representative was not present at the 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant meets any of the alternate criterion in s 36(2)(a), (aa), (b) or (c), that is, whether he is a ‘refugee’ or is owed complementary protection, or is a member of the same family unit of such an individual who holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant has consistently claimed to be a citizen of Vietnam. He was interviewed by the Department and the Tribunal with the assistance of a Vietnamese interpreter. The Tribunal accepts the applicant is a Vietnamese citizen and has assessed his claims against Vietnam as his country of nationality.
The applicant’s background
The applicant gave evidence to the Tribunal at hearing that he was born in [Nghe An province] and that he lived [there] for the duration of the time he lived in Vietnam. The applicant told the Tribunal that he grew up with his parents and [siblings], that his father has passed away and that his mother now lives with his brothers and sisters. The applicant gave evidence that his mother is living in the house he grew up in, and that he was living in the same house before leaving Vietnam with his mother, daughter and former wife and that he has a second daughter who was born after he left Vietnam.
The applicant gave evidence that he completed high school in Vietnam and then undertook [a] course at college which he described as being in [an industry]. He stated to the Tribunal that he had completed the course but had not worked in [that industry] and that he had worked as a delivery driver between 2009 and 2012 in addition to undertaking work for his family’s shop. He told the Tribunal that he has worked in factory work in Australia and is currently working in a factory making [products]. The Tribunal accepts the above information to be true.
The applicant’s religious and political claims
The applicant has consistently claimed to be a practicing Catholic. The delegate accepted the applicant was a practicing Catholic in Vietnam based on the religious marriage certificate and Catholic family book he had provided to the Department, in addition to his ability to provide a level of information and discuss aspects of his faith with the delegate at interview. Having considered this information, the Tribunal is similarly prepared to accept that the applicant was a practicing Catholic in Vietnam.
Based on information given by the applicant to the Tribunal at hearing, the Tribunal is also prepared to accept that the applicant has continued to practice his Catholic faith in Australia. The Tribunal accepts from the evidence given by the applicant at hearing that he is attending a Catholic church weekly in Australia. The Tribunal accepts that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant would continue to practice his religion by attending church.
The applicant’s written claims, submitted in support of his SHEV application, were that he had been involved in an incident at a church in [Town 1] in 2012, following which he faced adverse attention from the local authorities. The applicant’s claims advanced at the Tribunal hearing also related to an incident in 2012 in [Town 1]. For the following reasons, the Tribunal has significant doubts about the credibility of the applicant’s claims to have fled Vietnam because he was involved in an incident in [Town 1] that led to adverse attention from the Vietnamese authorities.
Firstly, the applicant has given varying evidence about the details of the incident that he claims to have been involved in at [Town 1].
In his statutory declaration dated 16 June 2017, the applicant claimed that in July 2012 he went to the church at [Town 1] and began to pray at the church. He claimed that people came and threw rocks, that he drove a safe distance from the church and waited in his car for two to three hours, and that 12 people then came to his car. He claimed that he was stopped by the police on the side of the road when driving home and that the police then let him go.
In contrast, at the Tribunal hearing on 14 December 2022, the applicant gave evidence to the Tribunal that there was an incident at [Town 1] in early August 2012, where people gathered at a number of small households a distance away from the church. The applicant gave evidence that local authorities used a loudspeaker to request that the service stop, that he saw people covered in blood and that he went to the open outdoor area to see if people were injured. The applicant gave evidence that people were beaten by gangsters. The applicant told the Tribunal that police asked for his car registration and later allowed him to leave the outdoor area, and that he then drove 8 to 9 nuns home in his car to the church in his local area.
After the Tribunal hearing, the Tribunal wrote to the applicant under s 424A about the above evidence. The Tribunal’s correspondence noted that the information was relevant to the Tribunal’s review because the inconsistencies in the applicant’s evidence about where an incident occurred at [Town 1], who attempted to assault parishioners, where police stopped and questioned the applicant and what happened during the incident may cause the Tribunal to doubt the credibility of the applicant’s claims. The Tribunal’s correspondence noted that these discrepancies may cause the Tribunal to doubt that the applicant worked as a driver for parishioners in his church, that he was involved in an incident at [Town 1] in July or August 2012, that he came to the attention of the authorities because of his attendance at religious activities in [Town 1], that he was of interest to the authorities in Vietnam because of his religious activities.
Secondly, the applicant has given varying evidence about his contact with authorities after the claimed incident at [Town 1].
In his statutory declaration dated 16 June 2017, the applicant claimed that the day after the incident at [Town 1], police came and asked him to attend his local government office. The applicant claimed that he went and was interviewed, was held for five hours and that the authorities hit the table and yelled at him. The applicant claimed that one to two days later, he again attended the police and was threatened by them. The applicant claimed that in August 2012, he was asked to go again but that he did not go.
In contrast, at the Tribunal hearing on 14 December 2022, the applicant gave evidence to the Tribunal that three invitations were sent to him but that he did not go, and that after the third one he was scared. The applicant gave evidence to the Tribunal that he didn’t dare go and that he didn’t meet with authorities at all before he had left Vietnam.
After the Tribunal hearing, the Tribunal wrote to the applicant under s 424A about the above evidence. The Tribunal’s correspondence noted that the information was relevant to the Tribunal’s review because the inconsistencies in the applicant’s evidence about whether he attended interviews with the authorities in Vietnam may cause the Tribunal to doubt the credibility of his claims. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant was involved in an incident at [Town 1], that he was sent any invitations by the police because of his attendance at a gathering at [Town 1], to not accept that he was in hiding before he left Vietnam or that he came to the attention of the authorities at any time because of his religion or that the authorities had attended at his mother’s house to ask where he was.
Thirdly, the applicant has given varying evidence about whether there is a warrant issued for his arrest in Vietnam.
In his statutory declaration dated 16 June 2017, the applicant claimed that the authorities in Vietnam have a warrant out for his arrest.
In contrast, at the Tribunal hearing on 14 December 2022, the applicant gave evidence to the Tribunal that there is no warrant out for his arrest, there were only three invitation letters sent to him.
After the Tribunal hearing, the Tribunal wrote to the applicant under s 424A about the above evidence. The Tribunal’s correspondence noted that the information was relevant to the Tribunal’s review because the inconsistencies in the applicant’s evidence about whether there is a warrant out for his arrest may cause the Tribunal to doubt the credibility of his claims, may cause the Tribunal to not accept the applicant was involved in an incident at [Town 1], that he was sent any invitations by the police because of his attendance at a gathering at [Town 1] or that the police have issued a warrant because of his religious activities. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant was in hiding before he left Vietnam or that he came to the attention of the authorities at any time because of his religion or that the authorities had attended at his mother’s house to ask where he was.
Fourth, the applicant has given varying evidence about his political activities in Vietnam.
In his statutory declaration dated 16 June 2017, the applicant claimed that sometime between the protest at [Town 1] and when he left Vietnam, he had attended a protest in Nghe An province because the government tried to prevent Catholic people from going to church and praying.
At the department interview on 2 December 2020, the applicant told the interviewer that he was referring to the protest at [Town 1].
At the Tribunal hearing, the applicant gave evidence to the Tribunal that he was not involved in any other group activities after [Town 1].
After the Tribunal hearing, the Tribunal wrote to the applicant under s 424A about the above evidence. The Tribunal’s correspondence noted that the information was relevant to the Tribunal’s review because the inconsistencies in the applicant’s evidence about what protest activities he was involved in in Vietnam may cause the Tribunal to doubt the credibility of his claims. The Tribunal’s correspondence stated that the inconsistencies may cause the Tribunal to not accept that the applicant was involved in any protest activity at [Town 1], in Nghe An province or anywhere else in Vietnam, or to accept that the applicant was politically active in Vietnam.
The applicant was given time to respond to the above information. The applicant provided the following response to the matters raised in the s 424A letter:
I could not afford thousands of dollars for a representative to assist me with the very important review of my protection visa that is now before the Administrative Appeals Tribunal (the Tribunal). I was much discouraged to learn that a transcription of my hearing, that I may need, would cost me at least a couple of thousand dollars.
I really did not understand my rights and obligations with regards to my case.
I have low education and very limited understanding of the tribunal, court system and its resources and authorities.
I did not have time to properly prepare for the hearing as I should have because of busy work commitment during end of year and besides looking for someone to give me professional assistance has been very difficult to me personally.
The incidents happened in 2012 and were traumatic to me as I am trying to forget about them. My memories were very fresh around 4 years ago at the first few interviews with the Department of Home Affairs in 2017.
I was very confused and scared at the hearing of the Tribunal in December 2022 and felt much under pressure and sometimes I could not concentrate and did not understand what the questions were all about and what in fact I was talking about. I was surprised when I was explained about the inconsistencies in my evidence.
I did not understand – as I did not remember whether I was told at the interview – that I had a right to have a copy of my interview if requested during or after the hearing.
Firstly, now that I review what I told the Department in 2017 I would like to confirm the following under oath and to sign this Statutory Declaration – but still only generally not in details: Around 2012 I worked then as a driver for parishioners in my church. I was involved in an incident at [Town 1] and came to the attention of the authorities because of my attendance at religious activities in [Town 1]. I was of interest to the authorities in Vietnam then (and still now) because of my religious activities. The details of all incidents are now very vague in my memories after so many years even when I try my best with my limited skills. I still see I was in my car talking to people from a group of around 12 villagers, some of them were beaten and injured in [Town 1] area. I see myself stopped by police when driving home. They asked for my number plate and later let me go.
Secondly: I now remember the day after the incident I was asked by the Police to come to the local government office for an interview of around five hours. They hit the table and yelled at me. Then around 2 days later they asked me and I came to their office to be threatened again. The third time I was asked to come to see them, I was too scared and did not dare attending and then I was hiding away from them before I escaped from Vietnam. I would like to confirm to the Tribunal that indeed because of my involvement in [Town 1] the police asked me to attend their offices to be questioned by them. I was of interest to the authorities in Vietnam then (and still now) because of my religious activities.
Thirdly, I now remember that because of my religious activities indeed the local police did send me official letters asking me to come for interviews. The document I referred to was stated by me and my helpers in my documents to the Department as “warrant out for my arrest” that later caused me to hide away from the police and escape from Vietnam for fear of prosecutions and imprisonment. I do not remember how this “warrant” looked like then but now believe again that there must be one, but unfortunately I still cannot provide a copy at this stage. I later found out that the police did come to my house and asked my mother about my whereabouts after I left.
Fourly [sic], I still remember that before I left Vietnam I did attend a protest in Nghe An Province because the government tried to protect Catholic people from going to church and praying. This currently they are still doing after I left Vietnam. There is no real freedom of religion as the Vietnam authorities claim in Vietnam, especially in small towns and in the centre of Vietnam, my country town of origin. The warrant to arrest me must be still in effect because of my political activities in Vietnam. If I return to Vietnam now I do not think that I will be properly protected by the authorities and I cannot hide myself anywhere else for my own safety in Vietnam, therefore, I believe that I have a well-founded fear of persecution if I return to Vietnam now or the foreseeable future, there is a real risk I will suffer significant harm by the Vietnamese authorities, especially the local police and their arbitrary system will even give me unfair imprisonment and hard labor probably in camps.

The Tribunal has considered the submissions made by the applicant in response to its concerns and notes that the applicant was legally represented before the Tribunal, although his representative did not appear at the hearing with him. At the commencement of the hearing, the Tribunal had asked the applicant to let the Tribunal know if he needed a break or did not understand any of the questions the Member was putting to him. The applicant was given a break during the hearing and did not, at any time during the hearing, request to take another break. He did not indicate to the Tribunal that he was having difficulty understanding the questions put to him at any time during the hearing and his answers were appropriate and responsive to the questions asked of him. He was told at the commencement of the hearing that he was able to request a copy of the audio file after the hearing was concluded.
The Tribunal accepts the applicant has a low education and limited understanding of the Tribunal’s processes and accepts that he may have been nervous when giving evidence before the Tribunal. However, these explanations did not overcome the concerns of the Tribunal about the credibility of the applicant’s evidence. Further, the Tribunal notes that the applicant provided further inconsistent evidence in his response to the Tribunal about how many people he had driven in 2012. The Tribunal considered it implausible that the applicant would remember details he had not been able to remember two weeks prior in his evidence at the hearing. The explanation in the applicant’s response about his contact with authorities and whether a ‘warrant’ has been issued did not alleviate the concerns the Tribunal had about the extensive and significant discrepancies in the details of his claims.
For these reasons, the Tribunal does not accept that the applicant drove parishioners from his local church to [Town 1]. The Tribunal does not accept that the applicant was involved in prayer activity at the church in [Town 1] in July 2012, that he observed people throwing rocks or that he was stopped by police while driving home. The Tribunal does not accept the applicant was involved in a gathering at households a short distance from the church in [Town 1] in August 2012, that he saw people being beaten by gangsters or that police asked for his car registration details. The Tribunal does not accept the applicant attended a protest in Nghe An province before he left Vietnam or that he was politically active in Vietnam. The Tribunal does not accept the applicant came to the attention of the authorities in Vietnam because of his attendance at religious activities in [Town 1] or for any other reason.
Because the Tribunal does not accept the claimed events, the Tribunal also does not accept that police sought to question the applicant because of religious activities in [Town 1]. The Tribunal does not accept that police attended the applicant’s home and asked him to attend a government office, that he was questioned for five hours during which time the table was hit and he was yelled at, that he attended to be questioned by police on a second occasion, or that he was asked to attend on a third occasion. The Tribunal does not accept the applicant was sent three invitations or official letters requesting he attend an interview, that there was a warrant issued for his arrest or that he was in hiding before leaving Vietnam. The Tribunal finds there is not a real chance the applicant faces serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, because of any previous political activities undertaken in Vietnam.
The applicant gave evidence to the Tribunal at the hearing that he has taken part in a couple of Vietnamese refugee activities in Australia, which he described as ‘conferences, meetings, assemblies’. When asked for details of these, the applicant stated they were in 2015 and 2016 and were in [Suburb 1] and [Suburb 2]. When asked for the details of the groups who had organised the activities, he then stated that there was no specific name for the group but they were doing activities in the church and he knows the people who organises them, their names as[deleted].
The applicant was asked about the activities he was involved in in 2015 and he said people were holding flags and walking near a river in [Suburb 1], the name of which he could not remember. When asked how many people had attended, he stated ‘too many people’. When asked about his activities in 2016, he stated that there was a conference about helping prisoners in Vietnam held at [Suburb 2] Church. He stated that he had not attended any other political activities since arriving in Australia and has not attended anything since 2016.
The Tribunal found the applicant to give his evidence about his political activity in Australia in a manner that was lacking in detail. However, the Tribunal is prepared to give the applicant the benefit of the doubt and accept he attended a gathering in 2015 and a conference at a church in 2016.
Country information considered by the Tribunal states that Vietnam is a one-party state and threats to CPV legitimacy are seen as threats to the state and are not tolerated.[1] Some advocacy and activism for broader human rights issues takes place, but most public protest is about practical local issues such as environmental concerns, development and transport. While street protests occur, much protest has moved to online platforms.[2]
[1] DFAT Country Information Report Vietnam, 11 January 2022, at 3.49.
[2] DFAT Country Information Report Vietnam, 11 January 2022, at 3.50, 3.51.
DFAT states that it is difficult to make an overall assessment of risks to activists as there are no clear patterns in relation to who will be arrested or when. DFAT states that those who publicly criticise the government face a moderate risk of official discrimination regardless of what they are protesting, that those who organise protests are more likely to face discrimination, but that the possibility of a low-level activist being arrested cannot be discounted.[3] The UK Home Office has similarly assessed that treatment from the authorities, in response to protest activity, will vary depending on a person’s level of involvement, the nature of the activities, the person’s role in those activities and their profile. Where an individual is perceived to be a low-level supporter, they may be subject to intimidation, arrested and released but this is not sufficiently serious by its nature and repetition to amount to serious harm. A person known to be an active organiser or leader, in contrast, is likely to be subject to serious harm.[4]
[3] DFAT Country Information Report Vietnam, 11 January 2022, at 3.57.
[4] UK Home Office, Country Policy and Information Note, Vietnam: Opposition to the State, September 2018, at 2.4.6.
The above information was summarised and discussed with the applicant at the Tribunal hearing. The applicant stated in response to the information that it was hard to put charges on the people he was driving but it was easier to put charges on him because he was transporting them. The police got his information and sent three invitations and may have beaten him or done something to harm him or charge him.
Given the applicant has not taken part in any political activity in Australia since 2016, and given the Tribunal has not accepted the applicant drove parishioners to [Town 1] to take part in protest activity or that he was otherwise politically active in Vietnam, the Tribunal does not accept the applicant is likely to be politically active if he returns to Vietnam now or in the reasonably foreseeable future. The Tribunal finds that, if it is wrong and the applicant does take part in any political activity, he is not known as an active organiser or leader of protest activity in Vietnam and any intimidation, arrest and release as a result of any protest activity does not amount to serious harm, having regard to the instances of serious harm in s 5J(5). The Tribunal finds there is not a real chance the applicant faces serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, because of his political opinion or imputed political opinion.
The Tribunal has accepted that the applicant would continue to practice his Catholic faith if he returns to Vietnam. The Tribunal discussed the following country information with the applicant at hearing and invited him to comment on this information.
There are an estimated 7 million Catholics in Vietnam, mainly concentrated in central Vietnam.[5] Catholics are generally able to practice their religion freely at registered churches, particularly in areas with larger Catholic populations.[6] Catholics generally do not experience societal discrimination. While this cannot be ruled out, DFAT understands from in-country sources that there is no pattern of such discrimination.[7]
[5] UK Home Office, Country Policy and Information Note, Vietnam: Ethnic and religious minority groups, February 2022 at 2.4.54.
[6] DFAT Country Information Report Vietnam, 11 January 2022, at 3.22.
[7] DFAT Country Information Report Vietnam, 11 January 2022, at 3.30.
Catholic political movements have attracted negative attention from authorities and the distinction between faith and politics can be difficult to draw, for example where Catholics are involved in political, human rights or environmental movements. In such circumstances, for example, priests may be restricted from public ministry or moved to another parish.[8] DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In general, Catholics are able to worship freely and to receive sacraments. Some Catholics in remote areas have trouble accessing a priest. 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.[9]
[8] DFAT Country Information Report Vietnam, 11 January 2022, at 3.26.
[9] DFAT Country Information Report Vietnam, 11 January 2022, at 3.31.
After summarising the above information for the applicant, the Tribunal observed that the applicant’s area in Vietnam, in central Vietnam, was an area where Catholic followers are concentrated. The Tribunal observed that it may not accept the applicant was politically active in a way that brought him to the attention of the authorities in Vietnam and that, having regard to the above country information, it may find the applicant is not at risk of serious harm or significant harm in Vietnam because of his religion. The applicant stated in response that, as far as he knows, the information available is officially reported and the actual situation is quite different to the information reported.
The Tribunal finds that the applicant was not involved in human rights or environmental movements in Vietnam. For the reasons further explained above, the Tribunal is also not satisfied the applicant was involved in any political activity, or activity that would be perceived to be political, in Vietnam. The Tribunal finds that the applicant could return to Vietnam and would be able to attend a Catholic church in central Vietnam, where he was previously residing, without facing any adverse attention from the authorities because of his religious activities. The Tribunal finds there is not a real chance the applicant faces serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, because of his religion.
The applicant claimed in his statement that he fears returning to Vietnam because he was the subject of the Department’s 2014 data breach, because he left Vietnam illegally and as a failed asylum seeker. He did not advance these claims at hearing when asked whether there were any other reasons he fears returning to Vietnam. The Tribunal stated to the applicant that it accepted he had departed Vietnam illegally and that he may have had his details released in the Department’s 2014 data breach and that, because of these matters, it had also considered the following relevant country information.
The Penal Code provides for penalties for illegal emigration, although DFAT is not aware of any cases where the provisions have been used against failed asylum seekers returned from Australia. In-country sources report that all individuals involved in people smuggling, whether as organisers or travellers, are held by authorities for questioning and sources have reported cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that people who have used a people smuggler face only an administrative fine. DFAT further understands that the Vietnamese authorities occasionally question returnees from Australia, that the interview process generally takes one to two hours and that the interview focuses on obtaining information about the facilitation of any illegal movement. DFAT is not aware of people being held overnight for this purpose.[10]
[10] DFAT Country Information Report Vietnam, 11 January 2022, at 5.29 – 5.31.
DFAT states that returnees, including failed asylum seekers, face a range of difficulties upon return including unemployment or under-employment and challenges accessing social services, particularly where household registration has ceased. NGOs may offer assistance, but this is more likely to be made to victims of trafficking rather than failed asylum seekers. Many returnees have high levels of debt from their travel out of Vietnam. Being a failed asylum seeker is not generally stigmatised and migration has been a feature of Vietnamese lives for decades, is common and is even encouraged by the government.[11]
[11] DFAT Country Information Report Vietnam, 11 January 2022, at 5.32 – 5.34.
The Tribunal observed that the country information suggested the applicant would not be of adverse interest to authorities upon return to Vietnam and that it did not see that being questioned and fined would amount to serious harm or significant harm. The applicant stated in response to the above information that he is not sure if there is physical harm or not, but he had a good life in Vietnam and didn’t come to Australia because of money and he had not wanted to leave his parents and children.
The Tribunal also discussed with the applicant that DFAT assesses that most people who have been subject to people smuggling are seen by the Vietnamese government as victims and not as criminals. Those who use their time overseas to publicly criticise the government may face adverse attention, but this does not apply to the majority of returning Vietnamese, including those who departed to seek asylum and including those who have sought asylum in Australia.[12] The applicant stated in response to this information that other people need to be in his position to understand his concerns. At the moment, he can contact his daughter and keep track of what she is doing, but if he is arrested he won’t be able to see his family.
[12] DFAT Country Information Report Vietnam, 11 January 2022, at 5.34 – 5.35.
The Tribunal accepts that the applicant departed Vietnam illegally and that he is likely to face questioning by the authorities and may face a fine. The Tribunal accepts that the applicant’s information may have been inadvertently disclosed by the Department in 2014 and that the Vietnamese authorities may infer from this that the applicant has sought protection in Australia. The Tribunal finds that the authorities are likely to view the applicant as a victim if he returns to Vietnam and that he would not face any stigma from the authorities or the local community as a returnee to Vietnam. While country information indicates that returnees face issues with employment and social services, the applicant has a family home to return to and has previously been employed in Vietnam and has found employment in Australia that may be of relevance to future employers in Vietnam. The Tribunal finds that any questioning by the authorities and the imposition of a fine does not amount to serious harm within the meaning of s 5J(5). The Tribunal finds there is not a real chance the applicant faces serious harm because he departed Vietnam illegally, because of the Department’s 2014 data breach, as a failed asylum seeker or for all of these reasons combined.
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).
The Tribunal has also considered the cumulative claims of the applicant, as a Catholic, failed asylum seeker, illegal departee from Vietnam and as an individual whose information may have been disclosed by the Department in 2014. Having regard to all of the applicant’s claims, the Tribunal is not satisfied that he faces a real chance of serious harm in Vietnam.
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). This requires the Tribunal to consider whether the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
For the reasons set out above, the Tribunal does not accept the applicant faces harm because of any involvement in protest activity in [Town 1] or as a practicing Catholic. The Tribunal finds that the applicant has accommodation to return to and has been able to find employment in Vietnam and in Australia. The Tribunal accepts that the applicant may face questioning and a fine as a result of his illegal departure from Vietnam. The Tribunal does not accept that the applicant faces a real risk of arbitrary deprivation of his life, the death penalty or torture in Vietnam. The Tribunal finds that the imposition of a fine and questioning by authorities does not amount to cruel or inhuman treatment or punishment or to degrading treatment or punishment. The Tribunal finds there is not a real risk the applicant faces significant harm if removed from Australia to Vietnam.
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.
Tamara Hamilton-Noy
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 1137

8 February 2023

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Immigration

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Procedural Fairness

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