2109426 (Refugee)

2109426 (Refugee) [2021] AATA 4890 (23 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2109426

COUNTRY OF REFERENCE: Vietnam
MEMBER:James Lambie
DATE:23 November 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 November 2021 at 4:14pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – former member of the Army of the Republic of Vietnam (ARVN) – opposition to the Communist government – attempted escape from Vietnam – detention – household registration – return visits to Vietnam – health care – illegal exit – criminal offenses in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2 cl 866.211
CASES
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423
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 20 July 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 2 June 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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 (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 the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is [an age]-year-old national of Vietnam. He is from Tra Vinh, Vietnam.
The applicant first arrived in Australia [in] April 1985 as a refugee. He has travelled to Vietnam approximately [large number] times from [1987] to [March] 2016. He has spent a total of approximately seven years in Vietnam since his first arrival in Australia.
The applicant applied for a protection visa on 2 June 2021, which was refused by a delegate of the Minister for Home Affairs in a decision made on 20 July 2021.
The applicant applied for merits review of the delegate’s decision on 23 July 2021.
Claims:
The applicant’s claims are summarised in his protection visa application form, written claims and the delegate’s decision.
The applicant claims he completed military service in the Army of the Republic of Vietnam’s (ARVN) [specified] Military Command from 1974 until they disbanded on 30 April 1975. He claims he left Vietnam because he was subject to discrimination by the local communist cadres. He claims he was caught and imprisoned during an attempted escape from Vietnam.
The applicant claims that if he returns to Vietnam, he will face discrimination and indefinite imprisonment by the local police authorities and not allowed to register in the household registration book because he was previously a member of the ARVN; fled Vietnam to seek asylum; has not resided in Vietnam since 1984 or 1985; he is not a communist; and he opposes the current communist government. He claims he will be an “unlawful citizen” and have no access to government and social services in Vietnam, because he will not be permitted to register in a household registration book, which means he can be caught and imprisoned by the authorities at any time.
The applicant claims the communist government is authoritarian and there are no agencies, government departments or private entities who would provide him protection from the local police authorities.
The applicant claims he did not encounter problems during these travels to Vietnam because he held Australian permanent resident visas and paid bribes, without which he would be mistreated and harmed by the local police authorities. He states he no longer holds an Australian visa or the money to pay bribes.
The applicant claims he will be unable to work in Vietnam because he is “aged” and he was injured at work (likely in Australia) and requires drugs to manage the pain.
The applicant claims he has injuries to his fingers for which he requires medication. He claims he would not be able to afford the medicines and bribes to see doctors or go to a hospital in Vietnam. He claims his siblings in Vietnam are married and have their own family, and they are very poor and would not be able to financially support him.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application form, which was lodged on 2 June 2021;
(b)the protection visa decision record dated 20 July 2021 (delegate’s decision);
(c)the application for review form, which was lodged on 23 July 2021, which included a copy of the delegate’s decision;
(d)all documents contained in Department file [number] concerning the applicant’s protection visa application, including:
·an undated statutory declaration from the applicant;
·a letter and parole order issued by the [Parole Board], both dated [in] April 2021;
·a support letter from [Mr A], Chaplain at [Agency 1] dated 17 May 2021; and
·a support letter from the Prison Ministry Team of the [Agency 2] dated 25 May 2021.
(e)all documents contained in Department file [number] concerning the cancellation of the applicant’s Class BB, Subclass 155 (Resident Return) visa;
(f)all documents submitted to the Tribunal in support of the applicant’s review application, including:
·an undated statement from the applicant;
·a statutory declaration from [name], the applicant’s son, sworn on 29 August 2021;
·a statutory declaration from [name], the applicant’s ex-wife, sworn on 12 December 2020;
·a joint letter of support from the applicant’s family members and close friends;
·a statutory declaration from [Friend A], the applicant’s friend, sworn on 6 December 2020;
·a support letter from [Mr A], Chaplain at [Agency 1] dated 17 May 2021;
·a support letter from the Prison Ministry Team of the [Agency 2] dated 25 May 2021;
·a criminal history check report issued by the Australian Criminal Intelligence Commission dated [in] December 2019;
·[Corrective Services] records, including administrative forms, a rehabilitation needs assessment, a sentence calculation document and offender case files issued by [two named correctional centres].
·a verdict and judgement record issued by [Court 1] [in] September 2019;
·a letter and parole order issued by the [Parole Board], both dated [in] April 2021; and
·a news article published by The Sydney Morning Herald [details deleted].
(g)country information on Vietnam, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of Vietnam. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 9 September 2021 to give evidence and present arguments at an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented by his registered migration agent, who also attended the hearing.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Vietnam. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Vietnam. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Vietnam.
The Tribunal discussed his claims as summarised in the applicant’s protection visa application, written claims, and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
[The applicant] told the Tribunal that he was born [date] in Tra Vinh, Vietnam. He was one of [number] children in his family. He attended school until the age of [age] when, he claims, he was conscripted into the Army of the Republic of Vietnam (ARVN). He agreed that he was [age] years old when the war in Vietnam ended. He said that he was then sent to a re-education camp for 3 months. However, he escaped before the expiry of that term, was caught, and interned for “a few more years”, being released in 1981. He left Vietnam in 1984.
The Tribunal asked [the applicant] why, if he had been released from internment in 1981, he had any reason to fear returning to Vietnam on the grounds of his former membership of the ARVN. He said that he remained of interest to the Vietnamese authorities because of his close involvement with US forces during his military service. The Tribunal put to him that the last US forces were withdrawn from Vietnam in March 1973, at which time he had not yet turned [age]. Even allowing for the involvement of some US personnel in his basic training, which is probably historically unlikely at the time in question, his exposure to the US military would be minimal and of no value or interest to Vietnamese authorities. Further questioning on his military history yielded only vague answers as to the unit with which he served and its activities.
The Tribunal asked [the applicant] if it was true that he had made some [large number] return trips to Vietnam since 1990. He accepted that this was the case. To the question as to why he had not experienced any problems, or apparently any interest from the authorities, on any of these occasions, he replied that he had been travelling on an Australian resident return visa which was respected by the Vietnamese authorities. He said that his parents had also signed an undertaking that he would return to Australia, and that he was required to report to a local authority that he would stay in Vietnam for only a limited time. The Tribunal expressed doubt that, as a Vietnamese citizen travelling on a Vietnamese passport, that merely possessing a visa permitting him to return to Australia would afford any protection. He said that, every time he returned to Vietnam, the authorities made it difficult for him and that his father had to pay bribes to local officials to avoid any trouble. He did not specify the difficulties caused to him by the authorities, other than what appeared to be the routine requirements of the household registration system.
[The applicant] gave evidence to the Tribunal that, when he left Vietnam, he lost his household registration. On return to Vietnam, he claims, he would be incarcerated for leaving Vietnam illegally under articles 120 and 121 of the Vietnamese penal code and, on release, prevented from completing a household registration. In that event, he would be destitute because he would have nowhere to live and would not be able to make a living. He said that the Vietnamese woman with whom he has a child has now married someone else and would, obviously, not take him in. He said his parents are dead and his siblings, [number] of whom live in Vietnam, are not capable of providing accommodation or financial support.
The Tribunal put to [the applicant] the country information on household registration (see paragraphs 53 to 55 below), specifically that there are processes for returned citizens to obtain the documents necessary for household registration, and that the process is being superseded by personalised ID cards. He maintained that the authorities would make it difficult for him but provided no details.
The Tribunal put to [the applicant] the country information on the treatment of returnees (see paragraph 64 below) and, in particular, information that fines and other penalties tend to be levied against organisers of people smuggling operations. [The applicant] maintained that he would be subject to punishment, and that it is imposed routinely. In response to the Tribunal’s questions, he claimed that the reason he had not been previously subjected to sanctions was because he held an Australian visa and his father had paid bribes.
[The applicant] did not expand on his medical claims at the hearing.
[The applicant] adverted to his criminal record in Australia. He said that the authorities in Vietnam would treat him as an ex-criminal and make life hard for him.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
In this matter, the Tribunal has taken into account that [the applicant] has spent a total of about seven years in Vietnam since 1991 over very numerous return trips over that period and has only lodged this application following his release from prison. [The applicant’s] explanation, as noted above, has been that he did not feel in need of protection until now because of his resident return visa and his ability to fund bribes to the authorities.
The Tribunal has had regard to the following country information relevant to the applicant’s claims.
Ex-ARVN soldier
A review of a book on the South Vietnamese Army in the June 2007 edition of the American Historical Review includes the following information on the ARVN:
The Armed Forces of the Republic of Vietnam were created in 1955, shortly after the Geneva Conference had divided the country provisionally into two separate regroupment zones, with Ho Chi Minh’s communist government in the North and a noncommunist regime in the South. At first, the new government in Saigon wanted to create a small volunteer army based on special forces and ranger units designed to undertake local operations against guerrilla forces. But when its U.S. ally demanded the formation of a conventional army capable of blocking a potential invasion from the North, the government of President Ngo Dinh Diem was forced to reassess its plans and institute the conscription of all males from the ages of twenty to twenty-five. As the war intensified, the size of the South Vietnamese armed forces grew rapidly at U.S. insistence, reaching a level of over 800,000 troops by 1971. By then, all males from sixteen to fifty years of age were subject to the draft.
Two years after the last US forces withdrew in 1973, Saigon, the capital of South Vietnam, fell to the communists, and on 30 April 1975, the South Vietnamese army surrendered.[3]
[3] The Library of Congress, Federal Research Division, ‘Country Profile: Vietnam’, (December 2005) p.2
There is little specific information located on the recent treatment of former soldiers in the South Vietnamese Army. A December 2015 report on human rights in Vietnam by the US-based Vietnam Human Rights Network indicates that
‘[a]lthough the war ended four decades ago, Vietnam is still pursuing a policy of discrimination and stigma against supporters of the old regime as if the war were still going on. Its categorization of people as “having contributed to the revolution” versus “being part of the puppet regime” dictates how people’s lives will unfold, depending on which side they were associated with during the war’.[4]
[4] The Vietnam Human Rights Network, ‘Report on Human Rights in Vietnam 2015’ (12 December 2015) p. 49.
The report also indicates that disabled veterans of the former Republic of Vietnam were being singled out for discriminatory treatment, stating that ‘the figure of approximately 6.7 million people with disabilities reported by the current state statistics does not include hundreds of thousands of disabled veterans of the former Republic of Vietnam who have been abused by the victors in the last 40 years’. It is stated in the report:
Some of these people have had to live the remainder of their lives in the streets begging for handouts. Until recent years, especially since 2014, in parallel with human rights movements, and with the help of their compatriots all over the world, some of the ARVN disabled veterans have come together and publicized to the world the extent to which they have been stigmatized, discriminated against, and marginalized by their own government. The state, however, responded to these complaints with arrests and suppression of these humanitarian assemblies.[5]
[5] The Vietnam Human Rights Network, ‘Report on Human Rights in Vietnam 2015’ (12 December 2015) pp. 49-50.
The latest US Department of State[6] report on human rights practices in Vietnam for 2020 does not specifically mention the current treatment of former soldiers of the South Vietnamese Army.
[6] US Department of State, ‘2020 Country Reports on Human Rights Practices: Vietnam’ (30 March 2021).
[The applicant’s] evidence, taken at its highest, is that he served in the ARVN, or a militia unit attached to the ARVN, for less than two years. I do not consider his claimed links to US military forces during this period to be plausible, given known historical facts and his extremely junior position. In any event, he claims to have undergone the ‘re-education’ process and to have been released. He does not cite any specific instance of having come to the attention of the authorities in the course of his many visits to, and long stays in, Vietnam. In the course of his travels, he used a Vietnamese passport and pointed to no instance of hindrance on entry or departure. In light of the evidence and the available country information, I cannot be satisfied that [the applicant] holds a well-founded fear of persecution in Vietnam on this ground, nor that there is a real risk that as a necessary and foreseeable consequence of being removed from Australia to Vietnam that he would suffer significant harm on this ground.
Household registration
DFAT’s latest country information report on Vietnam reports:
5.23 The 2006 Law on Residence establishes the household registration system and policies. There are two categories of registration: temporary and permanent (reduced from four under the previous law). In 2013, revisions were made to the law in response to concerns raised by the MPS over rapid urbanisation in major cities and more people changing their status to permanent after one year of residence (previously three years). The revisions tightened the requirements for permanent residence from one year to two years of continuous residence. The 2012 Capital City Law further tightened requirements for permanent residence in Hanoi to three continuous years of residence before status can be changed to permanent.
5.24 Ho Khau registration is initially obtained through the registration of a person’s birth with the village or provincial administrators. Officials use the registration system to determine the levels of services provided to villages and provinces, linking a person’s right to access government healthcare, education and other services to their place of residence. Ho Khau registration is also essential for obtaining employment with the government or in state-owned enterprises. Although health care facilities can be accessed anywhere in Vietnam in emergency cases, public facilities may turn away non-life-threatening cases where the person is not properly registered. Access to schools is determined by Ho Khau registration and administration fees may apply to children not registered in an area zoned for a particular school. For members of minority groups, Ho Khau registration is essential to access development-related entitlements in rural and regional centres. This may include additional language training or employment related training.
Household registration booklets are being phased out in Vietnam, replaced by personal ID cards linked to a digitised national data register. Household registration books are currently used for around 30 administrative procedures including residential demarcation, birth and death certification and land-use certification.[7] The new digitised system will transfer all such matters to the national data register, slated to be finalised by July 2021.[8] Household registration books and related papers will no longer be used under the new system, though documents with legal value containing information derived from household registration books may still be used.[9] Vietnamese citizens will be issued personal ID cards in early 2021, with the roll-out of cards scheduled to be completed by July 2021.[10] The new cards will be fitted with an electronic chip and a 12-digit personal identification number (PIN) which will remain with an individual throughout their life.[11] The first three digits of the PIN sequence indicate the person's place of birth, the fourth number indicates the century they were born and their gender, digits five and six represent the person’s year of birth, while the last six digits are stated to be random.[12]
[7] VietnamNet, ‘Benefits of the personal identification number’ (29 October 2020).
[8] VietnamNet, ‘Benefits of the personal identification number’ (29 October 2020).
[9] Landinfo, 'Vietnam: Pass og underlagsdokumenter (Vietnam: Passports and Supporting Documents)' (9 November 2020 p.4; VietnamNet, ‘Benefits of the personal identification number’ (29 October 2020).
[10] VietnamNet, ‘Benefits of the personal identification number’ (29 October 2020).
[11] Landinfo, 'Vietnam: Pass og underlagsdokumenter (Vietnam: Passports and Supporting Documents)' (9 November 2020 p.4
[12] Landinfo, 'Vietnam: Pass og underlagsdokumenter (Vietnam: Passports and Supporting Documents)' (9 November 2020 p.12.
In relation to the re-registration under the original system, the country information is:
On 5 August 2013, the Department of Foreign Affairs provided the following information, from Vietnam’s Ministry of Public Security, regarding the hộ khẩu reinstatement process:
Following DFAT Report 1515 of 24 June 2013, the Vietnamese Ministry of Public Security (MPS) has given Post formal advice on the circumstances in which a person may reapply for household registration in Vietnam. MPS’s advice is set out in paras 2 to 4 below.

2. Vietnam’s Residency Law and accompanying regulations ensure Vietnamese who’ve been living overseas can register for permanent residency and receive household registration papers. Nothing in the Residency Law makes registration more difficult for individuals who no longer have relatives in Vietnam or who have acquired a criminal record overseas.

3. To reapply for permanent residency, returning Vietnamese must provide the following:
·     a declaration of any changes to household registration details and members
·     a declaration of current household members
·     documentary evidence of a legal place of residence (unless the person is accepted for registration with an existing household)
·     a valid foreign passport or residence permit
·     a repatriation document issued by a Vietnamese representative office in the country the applicant is leaving
·     a Vietnamese passport with an entry permit stamp from Vietnamese border authorities (if the person still holds a valid Vietnamese passport)
4. To register for residence in a centrally-administered city, the person must submit an application for residency to the local police and allow 15 days for processing.[13]
[13] Department of Foreign Affairs and Trade 2013, DFAT Report No. 1528 – Vietnam: RRT Information Request: VNM422257, 5 August.
[The applicant’s] evidence on the difficulties he would face on return to Vietnam in respect of the household registration system was vague and speculative. The country information is to the effect that measures are in place to accommodate his circumstances. The Tribunal prefers the country information to [the applicant’s] evidence.
Access to employment
DFAT’s latest country information report on Vietnam reports:
2.15 The law prohibits discrimination with respect to employment and occupation based on sex, race, disability, social class, marital status, religion, and HIV/AIDS-positive status. The law promotes and encourages the employment of persons with disabilities; however, in practice social and attitudinal barriers exist to varying degrees.
2.16 Agriculture employs around 44 per cent of all workers in Vietnam, although this share has been declining steadily and is down from around 70 per cent in 1996. The share of employment in the industrial sector, including manufacturing, has approximately doubled since 1996, to around 21 per cent.
2.17 Vietnam introduced new minimum wage standards effective 1 January 2017. There are four regional minimum wages currently ranging from VND2.58 million to VND3.76 million (AUD153 – 224) per month. It is unclear at time of writing how widely they have been implemented. Fines exist for labour violations, but are not always enforced due to shortage of training inspectors and low funding. The International Labour Organization (ILO) estimates that around 82 per cent of total employment is informal (or unprotected) labour. Vietnam does not have independent labour unions.
Modest old age and unemployment benefits exist.[14] New programs have included assistance of 2.16 million VND (AUD $119) a year and a free health insurance card for all elderly people from the age of 80 onwards, the provision of assistance to single elderly people with limited incomes and no children; and assistance to disabled people.[15]
[14] United States of America (USA): Social Security Administration, 'Social Security Programs Throughout the World: Asia and the Pacific, 2018' (21 March 2019) pp.284-289,
[15] ‘Social Relations, Regional Variation, and Economic Inequality in Contemporary Vietnam: A View from Two Vietnamese Rural Communities’, Luong, H V in P Taylor (ed), Connected and Disconnected in Viet Nam: Remaking Social Relations in a Post-socialist Nation, Australian National University Press, ACT, Vietnam Series, 2016, p.66.
The Tribunal notes that [the applicant] has lived in Vietnam for extensive periods. Further, he has extensive family networks both in Vietnam and Australia. The country information at paragraph 55 above indicates that his criminal record in Australia creates no formal impediments to household registration and thereby access to government assistance.
Access to medical treatment
DFAT’s latest country information report on Vietnam reports:
2.11 The Government provides access to basic health care for all citizens, in both urban and rural areas (see Fig 1 below). Those in rural areas also have access to specialists in urban areas. Funding for health care facilities is based on the number of registered citizens in a particular area (see Household Registration). However, the Government has taken measures to increase relative healthcare expenditure in rural and remote communities in an effort to ensure more even development outcomes across the country. Overall life expectancy in Vietnam is around 71 years for males and 80 years for females.
[The applicant’s] medical claims were vaguely stated. He did not indicate the drugs to which he required access or any basis for his belief that they would not be available in Vietnam. I am not satisfied that he would be denied medications for a Convention reason, nor that that there is a real risk that as a necessary and foreseeable consequence of being removed from Australia to Vietnam that he would suffer significant harm by reason of a lack of essential medicines.
Internal relocation
DFAT’s latest country information report on Vietnam reports:
5.12 Internal relocation is common, with large scale urbanisation occurring in recent decades alongside other migration for economic purposes. Younger members of ethnic groups schooled in the Vietnamese language are significantly more likely to overcome linguistic and cultural barriers to successfully relocate.
5.13 Police require citizens and foreigners to register when staying overnight in a location outside of their own homes. This is enforced more strictly in some areas, such as Central and Northern Highlands districts. Moving without formal approval from the authorities can restrict access to legal residence permits, public education and healthcare benefits (see Household Registration).
For the reasons stated above, I am not satisfied that [the applicant], as a Vietnamese citizen, would face serious difficulties in securing the formal documents he might require on return to Vietnam and, therefore, am not satisfied that impediments exist to his internal relocation to a destination of his choosing.
Treatment of returnees
DFAT’s latest country information report on Vietnam reports:
5.15 Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. 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’.
5.16 Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return under Article 21 (regarding ‘Violations of the regulations on exit, entry and transit’) of the Decree on Sanctions against Administrative Violations in the Sector of Security and Social Order. A fine of between VND2 million and VND10 million (approximately AUD120-600) is specified for leaving Vietnam without a passport or equivalent, departing without undergoing official exit procedures, or departing using another person’s documents. A fine of between VND20 million and VND50 million (AUD1,200-3,000) is specified for leaving Vietnam using a false passport or equivalent.
5.18 The Vietnamese Constitution provides for citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’ (Article 23). In practice, the Government imposes limits on the movement of some individuals, particularly foreign travel by high profile political activists. Authorities often confiscate passports or deny issuance of passports for people the Government deems a threat to national interests. The Department of Immigration, part of the Ministry of Public security, is responsible for the issuance of passports and visas, as well as monitoring citizens migration to and from Vietnam.
5.21 DFAT has no information to suggest that people known or believed to have sought asylum in other countries are mistreated on return by the Government. Vietnamese nationals who depart the country unlawfully may be subject to a fine upon return. Notwithstanding these fines, DFAT understands that people who have paid money to organisers of people smuggling operations are not subject to such fines. DFAT is aware of recent returnees receiving assistance from Vietnamese provincial authorities and IOM to reintegrate to their communities. There are credible reports of some returnees held for a brief period upon return for the purpose of interview by MPS officials, to confirm their identity where no documentation exists. Other cases involve individuals detained by authorities in order to obtain information relevant to the investigation of people smuggling operations.
5.22 DFAT assesses that, in general, persons detained upon return to Vietnam are those suspected of organising/assisting with people smuggling activities.

This country information was discussed with [the applicant] at the hearing. He sought to contradict it by stating his belief that sanctions for illegal departure are routinely applied. However, he submitted no material in support of this claim. The Tribunal gives weight to his many arrivals in, and departures from, Vietnam without being subjected to any adverse official attention.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his former membership of the ARVN, the means by which he originally departed Vietnam, his age, his need to acquire official documents, his claimed medical condition, his criminal record in Australia, or any other reason if he returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vietnam. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal does not accept that [the applicant’s] former membership of the ARVN is now, or would be in the reasonably foreseeable future, of any interest to the Vietnamese authorities. For the reasons given above, the Tribunal is not satisfied that, by reason of the means by which he originally departed Vietnam, his age, his need to acquire official documents, his claimed medical condition, his criminal record in Australia, or any other reason, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Vietnam now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.
Overall Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Lambie
Senior 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.
…

[2021] AATA 4890

23 November 2021

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