2114650 (Refugee)

2114650 (Refugee) [2022] AATA 3733 (22 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2114650
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Kate Chapple
DATE:22 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2022 at 10:23am
CATCHWORDS
REFUGEE – Protection visa – Vietnam – generality of claim and lack of any supporting evidence – Tribunal does not accept the applicant was a political activist, government critic or a person of interest to Vietnamese authorities – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 426A, 441A, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This decision record relates to an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 2021 to refuse to grant the applicant a Protection XA subclass 866 visa (‘protection visa’) under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of Vietnam.
The Department’s movement records show the applicant first arrived in Australia on [date] August 2018 as a holder of a Temporary Work Skilled subclass 457 visa as a dependent applicant/spouse (‘temporary work skilled visa’).
The Department’s movement records further show the applicant departed Australia on [date] December 2019 and returned to Australia on [date] January 2020, continuing as a holder of a temporary work skilled visa. He has remained onshore since.
The Department’s records show the applicant’s temporary work skilled visa was cancelled on 16 June 2020 consequent upon the cancellation of the main applicant’s temporary work skilled visa. The Department’s records further show the applicant held and ceased to hold a number of bridging visas from 6 March 2020 to 27 May 2021.
On 27 January 2021, a migration agent (‘the applicant’s representative’) was appointed to represent the applicant in his application for a protection visa.
On 27 January 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Department for a protection visa.
On 27 May 2021, the Department granted the applicant a Bridging E class WE subclass 050 visa subject to no work and no study conditions, which remains current.
On 15 October 2021, the Minister’s delegate issued to the applicant’s representative a letter of notification of refusal of application for a protection visa addressed to the applicant and the related decision record (‘the delegate’s refusal decision’).
On 20 October 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Tribunal for merits review of the delegate’s refusal decision. The applicant’s representative was appointed to continue to represent the applicant in his application for review.
CLAIMS AND EVIDENCE
EVIDENCE BEFORE THE DEPARTMENT
Protection visa application
The protection visa application sets out (inter alia) the following details:
11.1.The applicant is a male born in [year] in Duc Trong District, Lam Dong, Vietnam who is a citizen of Vietnam; of the Catholic religion; separated; and speaks, reads, and writes Vietnamese, and speaks and reads English.
11.2.The applicant’s parents and older [siblings] are citizens of Vietnam and live in Duc Trong District, Lam Dong, Vietnam.
11.3.The applicant was school educated in Duc Trong District, Lam Dong, Vietnam over the period 1999 to 2011. He was self-employed as a [occupation] in a family business for the period October 2011 to August 2018 when he departed Vietnam for Australia.
11.4.The applicant was employed [in] New South Wales for the period August 2018 to June 2020, and as a [occupation] in Queensland from June 2020, and continuing as at the date of the protection visa application.
The protection visa application set out claims for protection extracted as follows:
12.1.I belong to the family whose ancestors come from the North to serve under Ngo’s Dynasty (the president, Ngo Dinh Dien) who was assassinated by his military officers via a coup to overthrow him.
12.2.When I was self-employed in a freelance business, I had challenged with local authority as its officers are power abuse and corruption. I travelled to Australia to escape the maltreatment and harm by them.
12.3.I did apply for studying however I do not think I am successful to complete.
12.4.My father told me the local police frequently stop at our place to take information about me, especially to find out what activities I have done in Australia. They of course tried to find out if I joined in organisations to promote the anti-Vietnam govt as they have done with others who are living in overseas countries like Aust or USA as I did challenge them in the past.
12.5.Now is the general meeting of the Communist party XIII. The people who are in suspicion of being anti-government have been arrested and sentenced to imprisonment, the journalists and bloggers, by the Ho Chi Minh city court on 5 January 2021.
12.6.According to my father’s advice I need to be in Australia under the protection of the government until the political system in Vietnam changes.
12.7.The Household Registration book is used by the authorities to strictly control the movement of people. The elements having ideas, expressing or joining the anti-govt will never be permitted to move out of the residential area.
12.8.The high rank leadership of the local authority controls the people and prevents them from promoting the anti-govt, in public or underground, especially during the very important event such as the Communist party General Assembly XIII. The reason is to keep the blacklist elements silent.
12.9.Harm includes to be summoned for interrogation, tortured, arrested and detained. You could receive mistreatment, being isolated and discriminated in the community and not entitled to social benefits. The local authority such as police carry out these actions without being known to local media.
12.10.The dictatorship rule of communism has been known worldwide since the Russian revolution in 2017. Nobody can interfere to protect the victims. No private agency dare to touch as they would be kicked back by revenging punishment by secret police or thugs.
Supporting documents
Documentary evidence of the applicant’s identity: a copy of a Socialist Republic of Vietnam passport in the name of the applicant.
A Human Rights Watch report titled ‘Vietnam – Events of 2019’ (web address: covering topics: freedom of expression, opinion and speech; freedom of media and access to information; freedom of association and assembly; freedom of religion; and key international actors (‘the Human Rights Watch 2019 report’).
The interview
The Department did not offer the applicant an interview.
EVIDENCE BEFORE THE TRIBUNAL
Departmental documents
Department decision record relating to the delegate’s refusal decision.
Department case file.
Department internal records relating to the applicant.
Application for review
On 20 October 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Tribunal for merits review of the delegate’s refusal decision.
On 18 July 2022, the Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 15 August 2022 and to provide pre-hearing submissions. The hearing invitation stated that the Tribunal had considered the material before it, but it was unable to make a favourable decision on that basis alone. The hearing invitation also stated that any request by the applicant to postpone the hearing must be made in writing, including reasons, as early as possible. The hearing invitation also stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear, or the Tribunal may dismiss the applicant’s application without any further consideration of the application or information before it; if dismissed, the applicant can apply within 14 days for reinstatement of the case, and the case can be reinstated if the presiding member considers it appropriate to do so.
On 20 July 2022, the applicant’s representative wrote to the Tribunal advising that the applicant had terminated his representation and requested that any communication from the Tribunal go to the applicant directly.
On 21 July 2022, the Tribunal wrote to the applicant’s representative advising that the Tribunal did not have the applicant’s contact details, requesting that the applicant’s representative forward the change of contact details form to the applicant, and seeking confirmation that the hearing invitation letter had been passed on to the applicant.
On 25 July and 8 August 2022, a Tribunal officer spoke to the applicant by telephone through a Vietnamese interpreter reminding him of the importance of providing to the Tribunal his response to the hearing invitation as soon as possible. The applicant indicated in these conversations that he had engaged a new representative to act for him in his review application. The Tribunal officer requested that the applicant arrange for the form in relation to the appointment of a new representative to be sent to the Tribunal as soon as possible. The Tribunal officer also told the applicant that if he required an adjournment, he must make a written request providing reasons for the presiding member to consider. The applicant indicated to the Tribunal officer that he understood the Tribunal’s requirements.
The Tribunal did not receive from the applicant or his new representative a response to the hearing invitation, a form in relation to the appointment of a new representative or a request for an adjournment of the hearing.
Pre-hearing submissions
The Tribunal did not receive pre-hearing submissions from the applicant or his new representative.
The Hearing
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) and was aware of the scheduled hearing, and that two separate SMS reminders were sent to the applicant about the hearing, in addition to the two telephone conversations with the applicant previously described.
Determination of the application for review
In these circumstances, and pursuant to s 426A of the Act, the application for review has been determined by the Tribunal without taking any further action to allow or enable the applicant to appear before it.
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. The relevant law is summarised below and extracted in Attachment A to this decision record.
Relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment A to this decision record.
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 Attachment A to this decision record.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility considerations
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence.
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 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 must be supplied by the applicant in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case, nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.
Relevant country information considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of 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. The Tribunal considers the information set out in Attachment B to this decision record to be relevant in the context of the applicant’s claims for protection.
Analysis and reasoning
The Tribunal has considered the applicant’s claims for protection set out in paragraph 12 of this decision record and below, and provides the following cumulative analysis and reasoning, taking into account the relevant considerations:
38.1.I belong to the family whose ancestors come from the North to serve under Ngo’s Dynasty (the president, Ngo Dinh Dien) who was assassinated by his military officers via a coup to overthrow him.
38.1.1.The Tribunal notes the relevant country information does not reference this history or its significance in the context of a protection status determination.
38.1.2.The Tribunal notes the generality of this claim and the lack of any supporting evidence. The applicant fails to detail or explain: his ancestors’ service connection with President Ngo; how the connection influenced or impacted the applicant when he lived in Vietnam, including any activities the applicant was involved in and any adverse attention he received from the Vietnamese government; and whether the connection has influenced or impacted the applicant’s activities while in Australia.
38.1.3.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.2.When I was self-employed in a freelance business, I had challenged with local authority as its officers are power abuse and corruption. I travelled to Australia to escape the maltreatment and harm by them.
38.2.1.The Tribunal notes the generality of this claim and the lack of any supporting evidence. The applicant fails to detail or explain: the relevance of the freelance business to this claim; the specific power abuse and corruption challenges he experienced and whether they were related to his freelance business or different activities or circumstances; what happened to him as a result of the challenges, including instances of maltreatment, harm, summons, questioning, arrest or detention; whether the challenges were resolved or ongoing when he left Vietnam; and whether he has been pursued in relation to the challenges while in Australia.
38.2.2.The Tribunal notes the relevant country information states that low-level corruption may be seen by people as the way things are in Vietnam, though efforts have been made by the Vietnamese government in recent years to support the private sector and create a more equitable business environment, and more work needs to be done to address corruption concerns.
38.2.3.There is no credible evidence before the Tribunal that the applicant travelled to Australia to escape maltreatment and harm or any other form of adverse treatment.
38.2.4.The Tribunal notes the applicant provides no reason for his return to Vietnam in December 2019. In the absence of evidence otherwise, the Tribunal can reasonably assume the applicant returned to Vietnam voluntarily and did not experience any difficulties with the Vietnamese police or authorities when entering Vietnam.
38.2.5.The Tribunal further notes the applicant returned to Australia in January 2020 but did not make an application for protection until January 2021. In the absence of evidence otherwise, the Tribunal can reasonably assume the applicant did not experience any difficulties with the Vietnamese police or authorities when departing Vietnam.
38.2.6.The Tribunal notes the relevant country information states that, in practice, the government imposes limits on entry and exit for political activists and government critics by refusing to issue passports or laying criminal charges to prevent travel.
38.2.7.The Tribunal does not accept the applicant was a government critic or a person of interest to Vietnamese authorities.
38.2.8.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.3.I did apply for studying however I do not think I am successful to complete.
38.3.1.The Tribunal does not consider this claim a relevant claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.4.My father told me the local police frequently stop at our place to take information about me, especially to find out what activities I have done in Australia. They of course tried to find out if I joined in organisations to promote the anti-Vietnam govt as they have done with others who are living in overseas countries like Aust or USA as I did challenge them in the past.
38.4.1.The Tribunal notes the generality of and lack of any supporting evidence for the applicant’s claim that he challenged local police in the past. The applicant fails to detail or explain: how he challenged local police, and in relation to what issues; what happened to him as a result of the challenges, including instances of maltreatment, harm, summons, questioning, arrest or detention; whether the challenges were resolved or ongoing when he left Vietnam; and whether he has been pursued in relation to the challenges while in Australia.
38.4.2.The Tribunal further notes the generality of and lack of any supporting evidence for the applicant’s claim that the local police frequently ask questions of his father or family in Vietnam about his activities in Australia. The applicant fails to detail or explain: the specific questions asked by police; the answers provided; and what has happened to him or his family as a result of the questioning. The applicant also fails to detail or explain whether he has participated in anti-Vietnamese government activities while in Australia.
38.4.3.There is no evidence before the Tribunal that the applicant has participated in anti-Vietnamese government activities while in Australia.
38.4.4.The Tribunal notes the relevant country information states that authorities occasionally question returnees from Australia on their arrival in Vietnam, that the interview focuses on obtaining information about their facilitation of any illegal movement, and that there are no known cases of returnees from Australia being held overnight for this purpose.
38.4.5.There is no evidence before the Tribunal that the applicant has facilitated any illegal movement.
38.4.6.The Tribunal further notes the relevant country information states that those detained upon return are primarily so due to their political views, held or imputed, rather than the fact they have sought asylum. The Tribunal does not accept the applicant was a political activist, government critic or a person of interest to Vietnamese authorities.
38.4.7.The Tribunal further notes the relevant country information states that returnees, including failed asylum seekers, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. There is no evidence before the Tribunal regarding the impact of these issues on the applicant specifically. Therefore based on the relevant country information, the Tribunal accepts the applicant may face these difficulties on his return to Vietnam, however the Tribunal does not accept these difficulties satisfy the refugee criterion or complementary protection grounds set out in the relevant law.
38.4.8.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.5.Now is the general meeting of the Communist party XIII. The people who are in suspicion of being anti-government have been arrested and sentenced to imprisonment, the journalists and bloggers, by the Ho Chi Minh city court on 5 January 2021.
38.5.1.There is no evidence before the Tribunal that the applicant was a journalist or blogger or other person under suspicion of being anti-government in January 2021.
38.5.2.There is no evidence before the Tribunal that the applicant was involved in any activities connected with the Communist party general meeting in January 2021.
38.5.3.The Tribunal notes the relevant country information does not reference the Communist party general meeting in 2021 or its significance in the context of a protection status determination.
38.5.4.The Tribunal does not accept the applicant was a political activist, government critic or a person of interest to Vietnamese authorities.
38.5.5.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.6.According to my father’s advice I need to be in Australia under the protection of the government until the political system in Vietnam changes.
38.6.1.The Tribunal notes the generality of this claim and its failure to detail or explain the involvement of or impact on the applicant specifically.
38.6.2.The Tribunal does not accept that the applicant will be impacted more adversely by the political system in Vietnam than the Vietnamese population as a whole.
38.6.3.The Tribunal notes the relevant country information states that a broad academic consensus asserts that public criticism of authorities is both common and a core feature of Vietnam’s political landscape, and that public criticism is met with a range of responses from authorities: it is often responded to positively, it is frequently tolerated, while on occasion it is met with repression. The Tribunal further notes the relevant country information states that authorities have been unable and to a degree unwilling to stifle public criticism; concerted, aggressive campaigns to halt all political criticism would greatly risk an economic and political crisis that would create even more discontent and greater challenges to party rule.
38.6.4.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.7.The Household Registration book is used by the authorities to strictly control the movement of people. The elements having ideas, expressing or joining the anti-govt will never be permitted to move out of the residential area.
38.7.1.The Tribunal notes the relevant country information states that all Vietnamese residents’ homes need to be registered with a household registration book, and that registration books are being replaced by information held in a national database linked to a person’s citizen identity card. Country information further states that, in practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation.
38.7.2.The Tribunal does not accept the applicant was a political activist, government critic or a person of interest to Vietnamese police or authorities.
38.7.3.There is no credible evidence before the Tribunal that the applicant’s internal movements in Vietnam will be the subject of any greater adverse control through the household registration system than the Vietnamese population as a whole.
38.7.4.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.8.The high rank leadership of the local authority controls the people and prevents them from promoting the anti-govt, in public or underground, especially during the very important event such as the Communist party General Assembly XIII. The reason is to keep the blacklist elements silent.
38.8.1.The Tribunal notes the generality of this claim, and its failure to detail or explain the involvement of or impact on the applicant specifically.
38.8.2.The Tribunal notes the relevant country information contains limited information regarding the blacklisting of Vietnamese people. The information indicates that while there is no official policy of blacklisting for past dissidence, there may be denial of access to benefits for those with the wrong background. Further, the information suggests that the dissidence would be in the form of historical relations with anti-communist groups or political activism.
38.8.3.There is no evidence before the Tribunal that the applicant is blacklisted.
38.8.4.The Tribunal does not accept the applicant was a political activist, government critic or a person of interest to the Vietnamese police or authorities.
38.8.5.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.9.Harm includes to be summoned for interrogation, tortured, arrested and detained. You could receive mistreatment, being isolated and discriminated in the community and not entitled to social benefits. The local authority such as police carry out these actions without being known to local media.
38.9.1.The Tribunal notes the generality of this claim, and its failure to detail or explain the involvement of or impact on the applicant specifically.
38.9.2.The Tribunal notes the relevant country information states that authorities occasionally question returnees from Australia on their arrival in Vietnam, that the interview focuses on obtaining information about their facilitation of any illegal movement, and that there are no known cases of returnees from Australia being held overnight for this purpose.
38.9.3.There is no evidence before the Tribunal that the applicant has facilitated any illegal movement.
38.9.4.The Tribunal further notes the relevant country information states that those detained upon return are primarily so due to their political views, held or imputed, rather than the fact they have sought asylum. The Tribunal does not accept the applicant was a political activist, government critic or a person of interest to Vietnamese authorities.
38.9.5.The Tribunal further notes the relevant country information states that returnees, including failed asylum seekers, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. There is no evidence before the Tribunal regarding the impact of these issues on the applicant specifically. Therefore based on the relevant country information, the Tribunal accepts the applicant may face these difficulties on his return to Vietnam, however the Tribunal does not accept these difficulties satisfy the refugee criterion or complementary protection grounds set out in the relevant law.
38.9.6.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
38.10.The dictatorship rule of communism has been known worldwide since the Russian revolution in 2017. Nobody can interfere to protect the victims. No private agency dare to touch as they would be kicked back by revenging punishment by secret police or thugs.
38.10.1.The Tribunal notes the generality of this claim, and its failure to detail or explain the involvement of or impact on the applicant specifically.
38.10.2.The Tribunal notes the relevant country information does not reference the 2017 Russian revolution or its significance in the context of a protection status determination.
38.10.3.The Tribunal does not accept the applicant has any basis for seeking protection on his return to Vietnam.
38.10.4.The Tribunal does not consider this claim a credible claim for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.

The Tribunal has considered the Human Rights Watch 2019 report and makes the following observations regarding its relevance to the applicant’s case and the claims and evidence before the Tribunal:
39.1.The report addresses the Vietnamese government’s restriction of civil and political rights, including freedom of expression, association, assembly, and the rights to freely practise beliefs and religion; and the prohibition of organisations or groups deemed threatening to the Communist’s monopoly of power. The report refers to the Vietnamese government’s harassment, intimidation, restricted movement and practice, online content censorship, physical assault, detention, arrest and imprisonment of Vietnamese rights bloggers, political critics and activists, independent and privately owned media outlets, people who disseminate materials deemed to oppose the government, threaten national security, or promote reactionary ideas.
39.2.Based on the cumulative analysis and reasoning set out in paragraph 38 of this decision record, the Tribunal does not accept the applicant was a political activist, government critic or person of interest to the Vietnamese police or authorities.
39.3.The Tribunal does not consider the Human Rights Watch 2019 report relevant to the applicant’s case and the claims and evidence before the Tribunal.
Findings
Based on the analysis and reasoning set out above, and taking into account the relevant considerations, the Tribunal finds that:
40.1.The applicant is a citizen of Vietnam.
40.2.The applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the relevant law.
40.3.If the applicant is returned to Vietnam, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
40.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk the applicant will suffer significant harm.
CONCLUSIONS
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).
On the evidence before the Tribunal, there is no suggestion that the applicant satisfies s 36(2)(b) or (c) 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)(b) or (c).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

CASE NUMBER 2114650 DECISION RECORD – ATTACHMENT A
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.
…
CASE NUMBER 2114650 DECISION RECORD – ATTACHMENT B
Relevant Country Information
The Department of Foreign Affairs and Trade (DFAT) Country Information Report Vietnam, 11 January 2022 provides in part the following information:
Corruption
2.11 Both Transparency International figures and Vietnamese media report that public perceptions of levels of corruption are falling but also that corruption is a key concern of everyday Vietnamese people. Despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months.
5.5 A distinction should be made between high- and low-level corruption. Police corruption may take the form of ‘coffee money’, a small payment at the side of the road, which may in turn be paid to superiors or other parts of Government as part of a patronage network. This may be seen by people as the ‘way things are’ and not necessarily recognised as corruption. High-level corruption, including payments by organised crime or in politics, is much less tolerated. In-country sources told DFAT such matters are likely to be investigated and severely punished.
Political opinion (actual or imputed)
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development, and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
5.4 Sources have also reported that local police sometimes use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and religious adherents perceived as undesirable or a threat to national security.
Internal relocation
5.18 Internal relocation is common. Police keep close watch over relocation and citizens staying even one night away from their homes must register with local police. The 2020 US Department of State Human Rights Report states that this is enforced more strictly in the Central and Northern Highlands districts.
5.19 Residents’ homes need to be registered with a document known as a hộ khẩu, or household registration book. In practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. With urbanisation have come slums, particularly in large cities, as former rural residents have moved in search of work. DFAT is not aware of other cases where registration is refused; such refusal is unlikely.
5.20 There are two categories of registration (reduced from four under the previous law): temporary and permanent. Household registration requires citizens to register their permanent residence in only one district in Vietnam. To gain permanent residence status in a new district, citizens must either marry into a family already holding permanent residence, purchase land, or live-in rental housing with an official lease and a minimum amount of liveable space.
5.21 Large cities such as Hanoi and Ho Chi Minh City have previously enacted local legislation to prevent relocation. These regulations may change rapidly. For example, DFAT’s December 2019 Country Information Report reported that restrictions were in place in Hanoi to prevent rural-urban transmigration based on infrastructure and overcrowding concerns. Those restrictions were removed in 2020.
5.24 Internal relocation and re-registration in a new residence is possible, but bureaucratic difficulties may arise for certain people. For example, women whose husbands die may have difficulty getting cooperation from their in-laws, or recently released prisoners might be refused registration by police who do not want ‘troublemakers’ in their district.
5.40 DFAT understands that physical hộ khẩu books are no longer issued and have been replaced by information held in a national database that is linked to a person’s CIC (Citizen Identity Card). DFAT understands that, although the books are no longer issued, they are still in use by some.
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works.
Passports
5.41 Passports are obtained by application to the Immigration Department of the MPS, at either the Central level (in Hanoi) or the Central-City level (in Hanoi, Danang and HCMC). Applicants outside these cities apply by post (those who are abroad would contact the nearest diplomatic mission). Applicants must provide their identity card or birth certificate, an application form and two recent passport photos. MPS reviews the application in consultation with authorities in the province who verify the applicant’s identity. The process officially takes five to eight working days. Ordinary passports are valid for 10 years for individuals aged 14 years or over, and five years for children aged under 14 years.
Conditions for returnees (page 33)
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
The Department of Home Affairs Common Claims Vietnam 10 February 2022 provides in part the following information:
Political Opinion
Government responses to public criticism (pages 10-11)
Sources diverge significantly in their assessment of people’s ability to publicly criticise the government and on the authorities’ response to such activities. A broad academic consensus asserts that public criticism of authorities is both common and a core feature of Vietnam’s political landscape. This academic consensus also holds that public criticism is met with a range of responses from authorities: it is often responded to positively, it is frequently tolerated, while on occasion it is met with repression.
Public criticism of the government is commonplace and has been growing in recent years (page 11)
Although the state does not allow any formal opposition, informal criticism has been growing for decades. As summarised by one Emeritus Professor (ANU), Vietnamese people since the mid-1990s have been speaking out publicly to such a degree that it has become a prominent feature of Vietnam’s political landscape. According to the professor, public political criticism has emerged and expanded because aggravated people are anxious to be heard, and has been facilitated by the rapid spread and accessibility to most Vietnamese citizens of the internet and mobile phones. Other academic sources also highlight the role of protest and criticism of the government.
Permitting public criticism is a core aspect of state-society relations in Vietnam intended to maintain party legitimacy (page 11)
Vietnam’s political system has long included a ‘dialogical’ feature, referring to communication and influence between citizens and party-state authorities. Authorities have been unable and to a degree unwilling to stifle public criticism; concerted, aggressive campaigns to halt all political criticism would greatly risk an economic and political crisis that would create even more discontent and greater challenges to party rule. The government instead can regard protests as helpful, whether in disciplining the foreign owners of factories in Vietnam, rooting out local corruption, signalling displeasure with China, or providing a safety valve for discontent. The role of local officials at the ward level to mediate practical and flexible solutions to problems has also been described.
Red-lines, recent trends and profiles of targets
Several credible sources note that there are fairly well-understood ‘red-lines’ which function as thresholds past which authorities are unlikely to tolerate criticism (page 16)
A UNSW Emeritus Professor argues that the party pursues a mantra of ‘three no’s’ – no political opposition, no political pluralism, and no multi-party system.’ He proceeds to state that ‘those who make common cause with political activists abroad to promote democracy, religious freedom, and human rights are arrested, given perfunctory trials, and imprisoned’. According to the USDOS, thresholds topics included criticism of individual government leaders or the party, promotion of political pluralism or multiparty democracy, questioning policies on sensitive matters, such as human rights, religious freedom, or sovereignty disputes with China. Online activists and relevant experts interviewed by human rights groups articulated a similar if slightly expanded set of topics deemed off-limits for online discussion: ‘criticism of the country, government or the Communist Party, criticism of state officials, particularly high-level leaders like members of the Politburo, criticism of the police, criticism of the army, issues considered ‘state secrets’ anything that may ‘undermine the unity of the State’, such as advocating for or appearing sympathetic to ethnic and religious minorities, human rights issues, corruption in State institutions and restrictions on freedoms. Freedom House suggested that the unpredictable and non-transparent ways in which topics become prohibited make it difficult for online users to know what areas might be off-limits.
Many sources claim that repression of public criticism has intensified in recent years (pages 16-17)
One prominent local human rights group wrote of a notable crackdown on dissent in the months leading up to the National Party Congress in January 2021, as evidenced by the arrests of high-profile dissidents that had been evading government harassment for years. A second prominent local human rights group wrote of a ‘crackdown on opposition voices’ intensifying in 2020-2021 prior to the 2021 Congress and National Assembly elections in May 2021. Amnesty International similarly wrote of ‘a major crackdown on all forms of dissent’ Ahead of the 2021 Congress. Other sources adopted a longer-term perspective claiming that arrests and convictions of political prisoners and harassment of activists has intensified under Communist Party General Secretary Nguyen Phu Trong during the past five years. The ANU Professor Emeritus notes that authorities began to intensify their repression of pro-democracy dissidents in 2017, while also acknowledging that ‘numerous dissidents have not been arrested’.
Corruption (page 23)
Authorities have demonstrated a willingness to tackle corruption, if unevenly, and sometimes for political reasons.
As Freedom House recognise, CPV and government leaders have acknowledged growing public discontent with corruption, leading to an increase in corruption-related arrests in recent years. In 20119, for example, the government reported that it had disciplined over 53,000 officials and other party members for graft.
Household Registration System (page 28)
Household registration booklets are being phased out in Vietnam, replaced by personal ID cards linked to a digitised national data register.
According to local news sources, Vietnam’s National Assembly agreed to remove household registration books by 2023 and replace them with an online database of citizens’ information. The decision was part of the revised law on residency, which was approved by the National Assembly in late 2020. Although the law was set to take effect from July 2021, people in Vietnam are allowed to continue using their books until the end of 2022. DFAT states in its January 2022 Vietnam country report that it understood that physical household registration books are no longer issued and have been replaced by information held in a national database linked to a person’s Citizen Identification Card. New cards associated with the national database will be fitted with an electronic chip and a 12-digit personal identification number (PIN) which will remain with an individual throughout their life. 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.
Department of Home Affairs Standard Q&A Report Vietnam: 20200916122803 25.09.20
(page 2) Beyond Viet Tan, COISS has located limited information about additional anti-Government political groups active in Australia. While general information about Viet Tan at an international level is included below, limited information has been found about their activities or leadership structure in Australia. Information located is predominantly from older or Vietnamese-language sources….
(pages 5-6) Australia’s Department of Foreign Affairs and Trade wrote in December 2019:
Opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. The Vietnam Reform Revolutionary Party (known as Viet Tan) is a US-based opposition group (also with an active branch in Australia) which advocates for democracy in Vietnam. It is considered a terrorist organisation by the Vietnam government. Members of other foreign-based opposition groups, such as the Brotherhood for Democracy, have also been accused of carrying out activities aimed at overthrowing the government. The Brotherhood for Democracy is reported to have funding links to Viet Tan.
COISS has not located information on the presence or activities of the Brotherhood for Democracy in Australia.
A group calling itself the Human Rights Relief Foundation is registered on the Australian Charities and Not-for-Profit Commission’s website, and is stated as having been established in 2014. Based in Cabramatta, New South Wales, the group’s activities are listed as follows:
Support project of publishing a handbook of Save Net group aiming to protect social media users under Vietnam cybersecurity law became effective 01/01/2019. @ Help training labor rights in Vietnam for activists @ Providing refuge for human rights activists who have been chased by Vietnam polices @ Providing basic knowledge about human rights via are project "Politics Is Interesting" for Vietnamese in VN @ Provide financial assistance to prisoners of conscience @ Provided prizes of Freedom of Literature and Music internationally in Dec 2018 at Sydney @ Continue to help to provide legal advice to land owners who their land have been confiscated by Vietnam authorities.
COISS has not found information about any further groups active in Australia who might be considered to be ‘anti-government’ groups.
Department of Home Affairs Standard Q&A Report Vietnam: CI180924180910209 11.10.18
(page 3) A 2018 report by Amnesty International identifies a list of Vietnamese prisoners of conscience. The profiles of those primarily targeted include human rights defenders, religious followers and peaceful environmental, social and political activists (including bloggers). These individuals have been targeted either for organising protests or for disseminating information critical of the Vietnamese authorities.
Department of Home Affairs Standard Q&A Report Vietnam: CI161213152501742 16.12.16
(page 2) Sources indicate that Vietnamese authorities place several categories of people on ‘black lists’. Although no information was specifically found in relation to ‘reactionaries’, older sources indicate that entire families of people have been black-listed due to historical relations with anti-communist groups or principles or due to a family member being considered a ‘dissident’. More recent sources indicate that ‘dissident’ authors and those perceived as falling under Article 84 of the Penal Code (1999) may also be black-listed. Consequences include imprisonment and (historically) denial of access to benefits.
In 2015, the Department of Foreign Affairs and Trade (DFAT) reported on the prospect of activists returning from overseas, stating that ‘there are credible reports of the government maintaining lists of people who have been banned from returning to Vietnam’.
(page 3) A 2010 ‘Country Advice’ from the Refugee Review Tribunal (Australia) includes the following:
Although no recent information was found concerning government blacklists in Vietnam, a 2004 RRT Research Response provides information about people who have suffered difficulties with respect to the system of household registration. The response cites a statement from a Unified Buddhist Church of Vietnam (UBCV) member before the US Commission for International Religious Freedom in 2001, who states that the government ‘uses household registration as a powerful means to harass and control people on its black list.’ The individual’s experience involves being expelled from a religious seminary for not having household registration there; questioning by police and being made to write self-reports; obstructions to domestic travel; and experiencing difficulties obtaining a passport.
An older DFAT report from 1995 states that:
Whilst there is no official policy of black-listing Vietnamese people for past dissidence, intense social pressures and overt preference to the party connected result in a denial of access to benefits for those with the "wrong" background. Families of current dissidents are/are black-listed. However, in general, returning Vietnamese visitors are officially welcomed and not harassed.
(page 4) An even older source from 1990 indicates that entire families could be ‘black listed’ based on historical family connections:
A Black-listed Family, gia dinh co ly lich xau, (lit. family with wicked family history), is generally one which has direct, parental or grandparental relationship with the French, the South, or is from a land-owning/capitalist class. "The relative with direct connections typically was imprisoned in re-education camp, experienced forced labor, had properties confiscated. Commencing in the late 1970's Black-listed Families were also forced to New Economic Zones (NEZ).
More generally, several authoritative sources indicate that political activists and dissidents face ongoing consequences for their activities from the government.
Human Rights Watch World Report 2016 indicates that the Vietnamese government continued to crack down on those ‘deemed threatening to Communist Party rule’:
The government’s crackdown on independent writers, bloggers, and rights activists deemed threatening to Communist Party rule continued in 2015. …
The government’s crackdown on independent writers, bloggers, and rights activists deemed threatening to Communist Party rule continued in 2015. …
During the first nine months of 2015, at least 40 bloggers and rights activists were beaten by plainclothes agents.
The US Department of State’s Country Reports on Human Rights Practices 2015 – Vietnam included the following observations on human rights practices in Vietnam for 2015:
The government held fewer political prisoners than in previous years due to completion of prison sentences and a continued drop in arrests and convictions of such persons. There were approximately 95 political prisoners at year’s end, compared with approximately 125 political prisoners at the end of 2014. The government asserted there were no political prisoners in the country and did not permit regular access to such persons by international human rights or humanitarian organizations.
Authorities continued to suppress political speech through arbitrary arrest and short-term detentions without charge. During the year the government sentenced two activists for peacefully exercising internationally recognized human rights, for “causing public disorder” (article 245) and “abusing democratic freedoms” (article 258). In comparison, the government sentenced 29 activists in 2014.
Authorities also continued to detain and imprison individuals who used the internet to publish ideas on human rights, government policies, and political pluralism…
(page 5) In a country information report dated 31 August 2015, DFAT refers to Vietnam’s Ministry of Public Security administering ‘re-education centres for suspected dissidents held in administrative detention without trial’. The report states:
5.15 The Ministry of Public Security also administers the re-education centres for suspected dissidents held in administrative detention without trial. No statistics exist regarding the number of re-education centres existing in Vietnam, or how many people are detained in them.
5.16 Under Article 25 of Ordinance 44 on the Handling of Administrative Violations, officials have broad authority to place people in administrative detention if they are determined to have ‘committed acts infringing upon the properties of domestic or foreign organisations, the properties, health, honour and/or dignity of citizens or foreigners, breaking social order and safety regularly but not to the extent of being examined for penal liability’. Article 30 of Decree 76 on Consignment to Education Camps further states that inmates at re-education centres must work eight hours per day (except for weekends and public holidays), while Article 26 allows a re-education centre director to ‘propose measures for subsequent management and education … in cases where persons who have completely served their detention do not really redeem their past’. Activists can be sent to re-education centres without trial or opportunity to contest their detention in court.
DFAT’s report proceeds to note that:
3.33 …Political activists have tended to receive shorter sentences in recent years, largely because of increased use of provisions other than the national security provisions to prosecute political activists. In particular, there has been an increased use of Article 258 of the Penal Code, which prohibits ‘abusing democratic freedoms to infringe upon the interests of the State, the legitimate rights and interests of organisations and/or citizens’. Article 258 carries penalties of between six months and seven years imprisonment, depending on the seriousness of the offence.
(page 7) DFAT’s 2015 country report on Vietnam - commenting on the detention of returnees with ‘political views’:
5.29 DFAT assesses that, in general, those who have been detained upon return have been detained primarily due to their political views, held or imputed, rather than the fact that they have sought asylum. Vietnamese authorities in general have honoured their obligations under a tripartite memorandum of understanding signed with Cambodia and the UNHCR in 2005 to facilitate the return from Cambodia of ethnic Vietnamese who did not qualify for third-country resettlement. While this agreement was initially for a six month period, Vietnamese authorities have to date largely honoured the spirit of the agreement.

[2022] AATA 3733

22 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing