2107887 (Refugee)

[2021] AATA 3702

2107887 (Refugee) [2021] AATA 3702 (4 August 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107887

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Luke Hardy

DATE OF DECISION:  4 August 2021

DATE CORRIGENDUM

SIGNED:25 August 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In paragraph 57 replace the word ‘China’ with the word ‘Vietnam’.

Luke Hardy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2107887

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Luke Hardy

DATE:4 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 August 2021 at 12:06pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – imputed political opinion – critical of government’s human rights record – social media activity – parents harassed by police – particular social group – failed asylum seekers – Vietnamese persons who have committed crimes abroad – conviction on charges of cannabis cultivation – land expropriation – protested about inadequate compensation – beaten and detained – decision under review affirmed

LEGISLATION

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

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [named], is a citizen of Vietnam. He arrived in Australia on a student visa [in] June 2013. The visa was cancelled on 13 June 2014 and [the applicant] became an unlawful non-citizen. He was convicted in April 2020 and served a [period] jail sentence in the matter of cannabis cultivation. Upon his paroling, he was transferred into immigration detention at [a detention centre]. There, he made and application or applications for a bridging visa, without success. He lodged a protection visa application on 4 June 2021.

3. As noted, the delegate refused to grant the visa on 9 June 2021. The applicant then lodged an application for review, evidently on his own behalf using an evidently private Gmail address for contact. He declared in his application that he did not receive assistance filling out the form from any other person.

4. On 22 July 2021, the Tribunal sent [the applicant] an invitation to attend a hearing of his review declared in his application that he did not receive any assistance from any other person in application on 30 July 2021. The Tribunal sent the invitation to [the applicant’s]s formal address for service, an apparently private email address: [address specified]. According to his review application form, [the applicant] was not represented.

5. [The applicant] appeared before the Tribunal by teleconference on 30 July 2021. The hearing was held during the July 2021 COVID-19 lockdown in Sydney. The Tribunal, constituted by me, exercised its discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of [the applicant] in immigration detention. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to the delay to the matter if the hearing was not to be conducted by telephone. I conducted the hearing from home with [the applicant] attending at [the detention centre].

6. The hearing was due to commence at 10:30am but was postponed for 45 minutes so that the Tribunal could secure a telephone interpreter.

7. At the start of the hearing, [the applicant] asked for an adjournment. He said he was unwell and that his solicitor was unable to appear that day.

8. [The applicant] provided no material in support of his claim to be medically (physically or psychologically) unable to proceed with the hearing. I asked him to describe his illness and he said that he had been worrying about the hearing in the preceding days and had not slept well on the eve of the hearing. I put to him that many applicants are understandably nervous about having to appear before a decision-maker in a matter as important as a protection visa application, and that the Tribunal is experienced in taking an applicant to and through his or her claims. I reminded [the applicant] that this application was initiated by him, rather than imposed, and that he therefore had much agency in the matter. I put to him that I was disinclined, so far, to adjourn the hearing, and the asked him to discuss the matter of his “solicitor.”

9. [The applicant] said his solicitor’s name was [Ms A] and that she works in a firm in [Suburb 1]. Asked the name of the firm, [the applicant] said he did not know, but said that [Ms A] works for a lawyer called [Mr A]. I asked if either of these lawyers had ever represented or been listed as his advisor in any other matter. He said he had received some help from these two when he contacted them after being detained by the Department of Home Affairs (the Department). He said that a different firm of lawyers had represented him in the cannabis matter. I asked [the applicant] about [the person] who was named in the email address he had provided, and he said he did not know. He said she might be someone who works in his [Suburb 1] solicitors’ office. I put to him that this seemed unlikely since Gmail addresses are generally private accounts, whereas lawyers generally include their respective firms’ names in the domain name section of their email addresses. [The applicant] said that [Ms A] had told him the day before the hearing that she would not be appearing with him. He said this had put him under some stress and anxiety.

10. I stressed to [the applicant] that there was no evidence before the Tribunal of his having formally engaged any adviser or representative; in fact, in his review application he had explicitly said he was not represented. [The applicant] then provided new information: he said that he had spoken on the morning of the hearing to a lawyer in Melbourne. He said he had done this at 10:30am, apparently after asking or reminding the Tribunal to arrange an interpreter. He now said it was the Melbourne solicitor who had told him he was unable to appear at the Tribunal hearing: he said he had called the Melbourne solicitor and explained how the [Suburb 1] solicitors had said they were unable to appear. He said the Melbourne solicitor had told him to ask the Tribunal to adjourn the hearing for a few months to give him, the solicitor, time to prepare to assist him. He said this lawyer’s given name was [Mr B], and that it was the only name he could provide. He repeated that the lawyer [Mr B] in Melbourne had told him to ask the Tribunal for an adjournment.

11. I put to [the applicant] that this news seemed odd, because it was now the Melbourne solicitor, rather than [Ms A] who was unable or unwilling to attend the scheduled hearing. I put to [the applicant] that if any of these people had been formally engaged by him, then that person would have contacted the Tribunal on his behalf, as a professional representative is supposed to do.

12. I considered [the applicant’s] request for what seemed to be an open-ended adjournment of the hearing of an application made by a person in immigration detention, in order to brief a purported solicitor who had not yet evidently undertaken, or been formally authorised, to represent him.

13. I thought about the issues in this case, as flagged in [the applicant’s] original application: they were all issues of autobiographical fact. On the face of it, the case was a land dispute matter that did not appear complex. There seemed to be no complex legal questions. The issue before the Tribunal was one mainly of gathering consistent detail, including information about [the applicant’s] family back in Vietnam, some eight years since he came here.

14. I had regard to the characteristics of a telephone hearing and how these might affect a person’s concentration and trust in natural justice and due process.

15. I also had regard to the need to avoid, wherever one can fairly avoid, causing a person’s time in immigration detention to be prolonged, let alone indefinitely or even just for a few weeks, as extended time in detention itself can have negative effects on a person’s physical and mental health, making it harder, later, for that person to be in a more optimal condition to give evidence at a hearing.

16. After due consideration, I put to [the applicant] that that I was inclining more to proceeding with the hearing without further delay, and he agreed to proceed. He was later to tell me that he really did not know if the Melbourne solicitor could really assist him.

17. The hearing was facilitated by an interpreter in the Vietnamese-English medium who also attended by telephone. I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments.

    CRITERIA FOR A PROTECTION VISA

18. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

19. 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.

20. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

21. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

22. 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

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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 issues

24. The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. 

25. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims

26. In his original protection visa application, [the applicant] claimed to have lived at the same address in Ha Tinh province from 2001 until June 2013 when he came to Australia. He claimed that his parents were farmers there and that they had [number] hectares of land which was resumed by the government for development, but without sufficient compensation. He claimed his family was only offered a quarter of the land’s value. [The applicant] claimed that he and his father protested in writing and were then beaten and detained by police for a number of weeks. He claimed he tried to live in other provinces to avoid being persecuted but was unable to reside in any of these places for long because the authorities traced him and instructed local people to harm him. He claimed he would suffer serious harm in the event of return to Vietnam because he was the eldest son and because he put his name to the protesting petition with his father. He did not suggest that his father continued to face harm since 2013.

27. The claims in [the applicant’s] original protection visa application are relevant as they involve actual or imputed “political opinion.”

28. [The applicant] presented his Vietnamese passport to the Department. He evidently departed Vietnam legally.

29. At the Tribunal hearing, [the applicant] said he used to live with his parents in Ha Tinh in Vietnam. He said his parents are both farmers and living in the same house he lived in over the years before he came to Australia. I asked him of his parents had ever owned a farm and he aid they had not as farmland in Vietnam is owned by the state and lease to farmers. In any event he did not suggest that his family had ever been pushed off any farmland they had been cultivating. The information he gave me about his family did not, at this stage, appear to sit with what he had said in his original application.

30. [The applicant] said he completed his schooling in Vietnam in [specified year] and after that just stayed at home until he came to Australia. He did not suggest to me that he ever tried to reside in provinces other than Ha Tinh. He told me he chose to study [two subjects] in Australia. (It is general knowledge that foreign graduates in these subjects in Australia were usually able to apply for permanent residence here, until the Australian government’s skills criteria changed in the middle of the last decade, closing off these particular migration paths.) I asked [the applicant] why he chose the study subjects he chose and he said that, at the time, he thought only of coming to Australia and did not care what he studied. I asked [the applicant] if he tried to find work while he was a student here, noting that he would have been entitled to work 20 hours per week on his student visa. In reply, he said that, to tell the truth, his main interest on arrival was to find work rather than studying. He said he tried to send money home whenever he could but found this hard to do. He acknowledged the risk, all along, of being caught breaching his student visa and being deported back to Vietnam, but said that his economic circumstances were difficult. He said his family sent him to Australia so that he could support himself.

31. I put to [the applicant] that his student visa was cancelled, as he claimed to suspect it might be; I said it was cancelled in 2014. In reply, he said, “I don’t know.” I put to him that the department would have likely sent him information about intention to cancel and then the decision to cancel, using the last email or other address he had provided to the Minister, as required. In reply, he indicated that he breached the requirement to keep the Minister informed of his address: he said he changed residential/postal addresses several times and used email addresses that he borrowed from other people. I asked him of the email address [that he provided in his application] was an address he had borrowed in the fashion he described, and he said he had no idea whose address that was.

32. I put to [the applicant] that he would have known he was working illegally in Australia from quite soon after he arrived here and he said, “Yes.” Since he told me had made friends with other Vietnamese in Australia, I asked him if he ever talked about his migration status issues with anyone and he said he did not. I asked him if he ever took any steps to find out about how he might be able to stay here legally and he said he did, but then changed his reply, saying that he only thought about it. I put to him that when he was transferred to immigration detention in 2021 he would likely have been informed that he was expected to make arrangements to return to Vietnam. In reply, he said he was informed of that prospect.

33. I asked [the applicant] why he did not wish to return to Vietnam and he said that he originally came here with the sole intention of working here but, after some time, he listened to his friends telling him about Vietnam’s poor human rights record. He said this made him watch online news and, eventually, start criticising the Vietnamese government on his [social media] page in 2016 or 2017. He said that he used a pseudonym on his [social media] page: “[Alias A].”

34. [The applicant’s] claims here are relevant as they are claims relating to actual and imputed “political opinion.”

35. [The applicant] acknowledged that in creating his [social media] profile, he changed his middle name. I put to him that he also used a different given name and he agreed. I note that there may be several thousands of males called [Alias A] in or from Ha Tinh in Vietnam, just as there may well be several thousands of citizens there named [applicant’s name]. (It is general knowledge that the Vietnamese population has an arguably small pool of family names, relative, say, to the Japanese population or the Thai or Lao.) I thus asked [the applicant] what made him think the authorities in Vietnam would link his alleged [social media] comments to him. In response, he said that in 2018 he sent a politically critical article to a newspaper in Vietnam that published what he wrote and which was then forced by Vietnamese authorities to delete it. He sad the police then visited his parents, also in 2018, and explicitly said to them that they should ask him to stop such activities lest he be arrested.

36. I asked [the applicant] if he could provide any material in support of his claims and he said he did not. He said he might be able to provide an extract from the pseudonymous [social media] account. I did not ask him to do so: the alleged account was in another person’s name.   

37. I put to [the applicant] that it seemed odd in the claimed circumstances that, while knowing he was potentially deportable at any time, he did not try to apply for protection in Australia in 2018. In reply, he said his political activities were motivated by a desire to help others, and not merely himself. He said that he considered it selfish at the time to use the situation in which he found himself for his own gain. He said that he was now at imminent risk of deportation and that this made him think differently. I put to him that he had told me of having been aware of possible deportation from the time he first breached his student visa back at least as far as 2014. In reply, he said that at that time he was focused on only one thing: working for money, and not on where he stood in terms of visa status.

1. I asked [the applicant] if he had ever had any direct experiences in Vietnam that might be relevant to his protection visa applicant and he said he had not had nay such experiences. He said that the Internet was not available to him in Vietnam. I asked him if he knew or heard of any particular individuals who were arrested and/or beaten by Vietnamese police prior to the time of his arrival in Australia. In reply, he said, “No. When I was there, I didn’t hear about that. I start to hear about it here.”

2. I then put to [the applicant] that he had provided a very different personal history in his original protection visa. He said that this happened because, after he engaged a solicitor, that solicitor wrote his statement of claims for him. He said that that solicitor was the one who had  told him she would not be attending the Tribunal hearing with him. I put to [the applicant] that he had declared in his protection visa application form that he was aware of all the claims in that form. In reply, he said he could not remember what he had declared.

3. I put to [the applicant] that, in his original application he had claimed that he and his father had been arrested, detained and beaten, over a period of a number of weeks, in a land dispute matter. In reply, [the applicant] said his solicitor had invented those claims. I put to [the applicant] that his so-called “solicitor” had also evidently omitted all of the substantive claims he had made at the Tribunal hearing: the [social media] activity, the newspaper article and the police harassing his parents. Ultimately, the Tribunal had before it what were to a large extent two mutually exclusive sets of claims. I expressed surprise that the more recent claims were omitted from the primary application as they were more contemporaneous with the present: they involved a recent and direct threat to [the applicant’s] safety, delivered explicitly to his parents. In reply, [the applicant] said all this was the fault of the “solicitor” who filled out his original application. [The applicant] said he left everything in his original application to his “solicitor” because he thought he would have more time to add information over time. However, no solicitor is identified as having helped [the applicant] with his original application. [The applicant] declared having received no assistance from anyone.

4. [The applicant] told me he fell in with cannabis growers, when he did, out of economic necessity in hard times.

5. I asked [the applicant] if he had any other claims to make in this matter and he indicated that he did not.

   Findings in relation to s.36(2)(a) of the Act

6. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] 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.[2]

   [1] MIMA v Rajalingam (1999) 93 FCR 220.

   [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

7. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]

   [3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

   [4] Sun v MIBP [2016] FCAFC 52 at [69].

8. I have considered all of the evidence in this matter separately and cumulatively.

9. I accept that [the applicant] is [educated to specified level], and the son of farmers who raised him in Vietnam’s Ha Tinh province.

10. I do not accept that [the applicant] was ever involved in a property dispute. He made it very clear at the Tribunal that there was no truth in the claims that appear in his original application. I am prepared to accept that [the applicant] had the assistance of another person in the filling out of required information, including the false substantive claims, in his original protection visa application. I do not accept on [the applicant’s] evidence that this was the work of a solicitor. I find on the evidence before me that [the applicant] improvised much of his explanation as to how the claims in his original application differed so markedly from those he made at the hearing. Overall, I find it likely that [the applicant] made, or allowed to be made, false and token claims to the Department in the hope of obtaining a bridging visa and delaying, or avoiding, his having to return to Vietnam, paying little or no attention to their substance because he had no genuine connection to them.

11. On the evidence before me, I find that [the applicant] came to Australia for the sole purpose of working here as long as he could, living in the present, making ends meet and sending money home to Vietnam when he was able to do so, with little to no care about consolidating a future for himself in the longer term. As noted, he told me he fell in with cannabis growers as a matter of economic survival in hard times. His actions show that in situations where he felt his plight was parlous for one reason or another, he had no genuine desire to bring his circumstances to the attention of the Australian authorities.

12. It is entirely possible for a misguided protection visa applicant’s initial claims to be false whereas, given more time and a sounder view of things, the same person’s later claims might all be true, not least in cases where, say, like this one, the newer claims relate to much more recent circumstances. However, in this case, I find that [the applicant] has not provided a plausible or otherwise satisfactory explanation for the omission of such claims from his primary application, which he only lodged a few months ago. Meanwhile, his new claims about feeling inwardly impelled to spread information about Vietnam’s human rights record do not strike me as being congruous with his personality, personal experiences or interests. As he said to me, he has long been pre-occupied just with working for money. Furthermore, his claims about alleged political writing in 2016-18 are all unsupported. On the evidence before me, I do not accept that he has opened a [social media] account in which he has been critical of the Vietnamese government, or that he had a politically critical article published in a Vietnamese newspaper, let alone that the police ever came to warn his parents about anything. On the evidence I gathered at different stages of the hearing, I find that [the applicant’s] parents have not had any potentially significant encounters with the authorities in Vietnam.

13. Overall, I find that [the applicant] has fabricated, or left to be fabricated, all the substantive claims in this matter. I give much more weight to his evidence about having had stable domicile in Vietnam,  attended school, having helped his parents from time to time with their farming, abut never having heard of what he now calls human rights abuses in Vietnam, and having been able to depart that country legally.

14. There are two implicit claims in this matter: the first arises from [the applicant] articulating what might happen to him if his protection visa application is unsuccessful causing him to have to return or be removed to Vietnam; the second relates to his conviction on charges of cannabis cultivation. Both potentially involve “membership of a particular social group”: “Vietnamese persons who have committed crimes abroad”; and “former asylum seekers who have returned to Vietnam.” The subject of “failed asylum seekers” arguably relates also to actual or imputed “political opinion.”

15. I have looked at whether [the applicant] would face re-conviction in Vietnam in breach of “double jeopardy” protections. DFAT, in its Country Information Report: Vietnam of 21 June 2017, reports that the principle of double jeopardy applies in Vietnam. The Vietnamese Ministry of Justice has evidently advised DFAT that persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes.

16. Article 6 of Vietnam’s Penal Code, nevertheless prescribes that people who have committed offences overseas, where the sentence has not been served, may be “examined for penal liability in Vietnam”. No specific list of offences appears known to DFAT, but in any event [the applicant] has served his sentence. DFAT advises that it is not aware of any instances where Vietnamese returnees from Australia have been re-convicted in Vietnam.[5]

    [5] “Double jeopardy and the death penalty in Vietnam,” Department of Foreign Affairs and Trade (DFAT), 12 September 2017.

17. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being subjected to conviction or re-conviction in Vietnam for any crime committed in Australia.

18. I have considered whether [the applicant] would suffer potentially relevant harm for having sought asylum abroad. I have researched various DFAT and other reports on this subject covering several decades: most of the material refers to asylum seekers who left Vietnam illegally and therefore does not specifically or wholly apply to [the applicant]. However, much of the DFAT reporting describes how Vietnamese authorities are not so much concerned abut asylum seekers as they are regarding organisers of mass illegal departures, particularly in commercial operations. Since the 1990s, Vietnam has co-operated with UNHCR and other agencies in receiving and reintegrating returnees who formerly sought asylum abroad. DFAT further notes that a formal Memorandum of Understanding was signed in December 2016, providing a formal framework for the return of Vietnamese nationals lacking a legal right to remain in Australia:

    Returns to Vietnam are usually done on the understanding that they will not face charges as a result of their having made asylum applications. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea.’

19. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being subjected to serious harm for reasons of having sought asylum in Australia.

20. Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in China for any of the five reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.

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

    Findings in relation to s.36(2)(aa) of the Act

22. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

23. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

24. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

25. "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.

26. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

27. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

28. 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.

29. Accepting that [the applicant] is a citizen of Vietnam, I find that Vietnam is the “receiving country” in this case.

30. I find that the harm [the applicant] identifies in his claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

31. [The applicant’s] claims to complementary protection are essentially the same as his refugee status claims. Those claims have failed as refugee status claims due to their lack of consistency and reliability and for not having met the “real chance” test. In view of the "real risk" test imposing the same standard as the “real chance” test, [the applicant’s] claims can no more succeed as complementary protection claims that they have done as refugee status claims.

32. On the evidence before me I am not satisfied that I have 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] will suffer significant harm.

33. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

34. 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, he does not satisfy the criterion in s.36(2).

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Luke Hardy
    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.

    …