2115955 (Refugee)

[2022] AATA 2254

2115955 (Refugee) [2022] AATA 2254 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  2115955

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jessica Henderson

DATE:12 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration and directs that the applicant is a refugee within the meaning of subsection s 5H(1) of the Act.

Statement made on 12 May 2022 at 11:10am

CATCHWORDS
REFUGEE – protection visa – Vietnam – race – Chinese heritage – rescission of Vietnamese citizenship – alleged statelessness – whether entitled to Chinese citizenship or a right of abode – particular social group – drug addicts in Vietnam who have been convicted of trafficking related offences – risk of relapse into substance abuse – social stigma – compulsory drug rehabilitation centres/ 06 Centres – capacity to subsist – serious psychological harm – decision under review remitted

LEGISLATION
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 362A, 411
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    The applicant has previously stated that he is a citizen of Vietnam but nevertheless claims to be stateless at the present time by virtue of the rescission of his Vietnamese citizenship.

3.    He applied for the visa on 7 July 2021. The delegate accepted that the applicant is ethically Chinese but found that the applicant is a citizen of Vietnam, and that there is not a real chance that, if returned to Vietnam, he will be persecuted due to his Chinese ethnicity.

4.    The applicant was represented by solicitors, and gave evidence to the Tribunal in numerous formats, including video and in person hearings.  Further details about the proceedings are dealt with below.

CRITERIA FOR A PROTECTION VISA

5.    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.

6.    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.

1. 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).

2. 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.

3. Even if a person meets the elements of the refugee definition in s 5H(1), he or she may not meet the criterion in s 36(2)(a) because of the operation of s 5H(2).

4. Section 5H(2) provides that s 5H(1) does not apply if the Minister has serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity, or has committed a serious non-political crime before entering Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations. However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to determine s 5H(2) issues: ss 411(1)(c) and (d).

1. 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.

2. Even if the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm, he or she may be ineligible for a protection visa by operation of s 36(2C). Section 36(2C) provides that an applicant is taken not to satisfy the criterion in s 36(2)(aa) where the Minister has serious reasons for considering that they have committed a war crime, crime against peace, crime against humanity or an act contrary to the purposes and principle of the United Nations. A person will also be taken not to satisfy s 36(2)(aa) if the Minister considers, on reasonable grounds, that they are a danger to Australia’s security or the Australian community (having been convicted by final judgment of a particularly serious crime). However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to determine s 36(2C) issues: ss 411(c), (d).

Mandatory considerations

1. 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.

EVIDENCE AND SUBMISSIONS BEFORE THE TRIBUNAL

1. This application was first listed for hearing before the Tribunal by videoconference on 11 January 2022 and the applicant was invited to attend by letter dated 4 January 2022.

2. On Friday 7 January 2022 the Tribunal received a signed Request for Access to Written Material pursuant to s. 362A of the Act from the applicant’s solicitors.  It requested a ‘complete copy of the file maintained by the Tribunal in respect of the present review application of the Department’s decision to refuse [the applicant’s] Protection visa application, including a copy of the Department’s file.’  Ten minutes later the Tribunal received a letter from the applicant’s solicitors urgently requesting that the hearing listed on 11 January 2022 be adjourned to a date not less than 28 days after the applicant’s solicitors had received information from the Department, the applicant’s criminal lawyers, the Department of Justice, and the Tribunal.

3. The Tribunal replied to the applicant’s solicitors on Friday 7 January 2022, advising that s. 362A of the Act did not apply to Protection Visa cases.  By separate letter of the same date the Tribunal provided an initial response to the request for an adjournment.  The initial response noted that the applicant was held in detention and requested clarification about the nature and anticipated effect of the outstanding information that had been requested by the applicant’s solicitors with a view to determining whether it was appropriate to leave the applicant in detention for the requested indefinite period whilst the information was obtained.

4. On Monday 10 January 2022, at 3:10pm, the applicant’s solicitors sent an email to the Tribunal.  The email emphasised that the solicitors had not yet received a full copy of the Department and the Tribunal’s files and noted that the solicitors “had not had sufficient opportunity to prepare legal submissions addressing s36(2) of [the Act] and to prepare submissions containing relevant country information.”  It further noted that the solicitors had “not yet had an opportunity to brief a psychologist and obtain detailed instructions from [the Applicant] in respect of his fears of returning to Vietnam.”

5. The letter further advised the Tribunal of a pending revocation request in respect of the mandatory cancellation of the applicant’s permanent visa, and issues arising from the applicant’s ‘prior drug addiction’ and ‘past offending’.  The letter stated that “Documents and information found in the cancellation file pertaining to [the applicant’s] prior drug use and dealings could be highly relevant to the assessment of the well-foundedness of his fears of returning to Vietnam, particularly in light of the existence of compulsory drug rehabilitation centres in that country and the ill-treatment of detainees held in them.”

6. Finally, the letter noted that the solicitor with carriage of the matter had been diagnosed ‘in the last week’ with COVID-19.

7. The Tribunal accepted that a delay was reasonable in light of the matters raised in the letter, and by letter dated 10 January 2022 the Tribunal confirmed that the hearing was adjourned to 27 January 2022.

8. On 11 January 2022 the Tribunal received a request for a ‘complete copy of the file maintained by the Tribunal in respect of the present review application of the Department’s decision to refuse [the applicant’s] Protection visa application, including a copy of the Department’s file’ pursuant to the Freedom of Information Act 1982.  By covering email the applicant’s solicitors requested “the immediate release of the documents” because of the hearing listed on 27 January 2022. 

9. The Tribunal responded to the FOI request on 21 January 2022, with a partial release of information.

21 January 2022 submissions

1. On 21 January 2022 the Tribunal received an email from the applicant’s solicitors attaching legal submissions dated 21 January 2022 and a statement signed by the applicant on 21 January 2022.[1]

   [1] Those documents will be referred to as ‘the January Submissions’ and ‘the applicant’s January statement’ respectively in these Reasons.

2. The applicant’s January statement set out his ‘fears of returning to Vietnam’ in paragraphs [31] – [41] in the following terms:

[31] If I am forced to return to Vietnam, I am scared that the Vietnamese government and authorities will discriminate against, punish, harm and persecute me on the basis of my Chinese descent. I am no longer a Vietnamese citizen; my citizenship was revoked in 1979 when the Vietnamese government declared that Vietnamese nationals of Chinese descent were no longer Vietnamese and were to be deported to China…

…

[38] I have no ties in Vietnam, no family, no friends, no memory of living in a safe place…I will have no one to support me…I will likely relapse into drug use or resort to selling drugs to financially support myself…

[39] I have heard that Vietnam has compulsory drug rehabilitation centres. I fear that people in there are treated worse than prisoners. They can keep people in there for five to seven years or as long as they want. People are physically abused and psychologically tormented; they are not treated like humans. It will be like living in the Hong Kong detention camp again; the traumatic memories from those times would flood back to me. I would not be able to cope. It is worse than prison. It would have the opposite impact of pushing me into drug use as a means of coping rather than rehabilitation or I would just die in there from the torture and mistreatment that I will experience…

[40] I have no future in Vietnam.  I will not be able to find a job as I have no connections and have no qualification or skills…Without a job, I will not be able to support myself and will face destitution…

1. The Tribunal understood from these submissions that the applicant’s fears of harm fell into four broad categories:

   a.Persecution because of his Chinese descent and/or lack of Vietnamese citizenship;

   b.Harm due to relapse into past drug use and/or drug dealing;

   c.Persecution because of his continuing addiction to drugs;

   d.Economic issues arising due to his lack of qualifications and skills and his financial inability to pay bribes to obtain employment.

2. The applicant’s January statement is not entirely consistent with the summary provided in the January submissions, which stated that the applicant’s fears of returning to Vietnam “stem from”:

• Physical violence and harm at the hands of Vietnamese authorities on the basis of his Chinese descent;

• Serious harm at the hands of Vietnamese law enforcement and other authorities in compulsory drug rehabilitation centres as a (former) drug addict; and

• Discrimination, harassment and violence as a (former) drug addict.

1. The January submissions set out in some detail the basis on which it is said that the applicant will “likely” resume his drug use on his return to Vietnam “despite his current abstinence”, emphasising that the applicant “would be likely to seek out and source heroin or methylamphetamine for his use in Vietnam, despite his current period of abstinence and even if he had to forego other necessities given his limited economic resources”. The January submissions include that the applicant “would have ready access to his drugs of choice, and his long history of substance abuse coupled with the environmental stressors he would face, make a relapse into drug use exceedingly likely in his circumstances.” 

2. A nexus seemed to be identified in the submissions between the applicant’s inevitable relapse into drug use, in spite of the applicant’s statement that “his every effort will be expended on avoiding a return to drug use”, and the applicant confronting compulsory internment in a drug rehabilitation centre.

27 January 2022 hearing

1. On 26 January 2022 the applicant’s solicitors sent an email to the Tribunal “to inform the Department” that the applicant’s solicitors intended that the applicant and his mother both provide oral evidence at the hearing on 27 January 2022.  The applicant’s solicitors did not provide a witness statement for the applicant’s mother.

2. At 8.55am on 27 January 2022 the Tribunal received an email expressing both the applicant and his mother’s preference for a North-Vietnamese interpreter at the hearing that was scheduled to begin at 1.00pm.  That was the first indication the Tribunal had that an interpreter was going to be required by the applicant or by any witness. The applicant indicated on his Application for Review that he did not need an interpreter when communicating with the AAT.  His witness statement was in grammatically correct English and did not contain any statement to the effect that it was prepared with the assistance of an interpreter. No hearing certificate was returned prior to the hearing.

3. The Tribunal was able to arrange for a North Vietnamese dialect interpreter to be available by telephone at short notice and the hearing was convened before the Tribunal on 27 January 2022 with the assistance of that interpreter.

4. After the commencement of the hearing, the applicant addressed the Tribunal in clear English to advise that he was unable to hear everything the interpreter said.  On enquiry, the applicant indicated that he could understand a reasonable amount of English and was happy to proceed on the basis of occasional assistance from the interpreter.

5. The hearing proceeded on that basis, but both the applicant’s solicitor and the Tribunal independently observed some confusion on the applicant’s face during the Tribunal’s opening comments on the law.  The Tribunal accepted that it would be prudent to have the interpreter translate the entirety of at least the opening comments, which are intended to clarify both the law and the purpose of the hearing for the applicant.

6. The applicant continued to have difficulty hearing all of the interpreter’s translation.  The Tribunal sought and received verification from an attendant at the detention centre that he was also unable to clearly and consistently hear the interpreter.  The Tribunal was satisfied that the technical difficulties were genuine and as such the Tribunal adjourned to 8 February 2022.  In doing so, the Tribunal accepted that it was unlikely that an expert psychological report would be available by 8 February 2022 but noted that the date of the hearing was unlikely to be the date of the Tribunal’s decision and indicated that there would be an opportunity provided for the filing of an expert report and other evidence after the conclusion of the hearing, as well as an opportunity for a further hearing if necessary. 

8 February 2022 hearing

1. Both the applicant and the interpreter were present in person before the Tribunal on 8 February 2022.  The applicant’s solicitors appeared by videoconference link.  At the request of the applicant’s solicitors the Tribunal treated the applicant in accordance with the Tribunal’s Guidelines on Vulnerable Persons, in anticipation of a possible finding by his registered psychologist that he might have acquired brain injury.

2. During the hearing on 8 February 2022 it transpired that the applicant had already been interviewed by a clinical psychologist, and that a further interview was scheduled for 9 February 2022, after which a report was likely to be available forthwith. The Tribunal therefore adjourned the hearing to 25 February 2022.

17 February 2022 submissions

1. By email dated 17 February 2022 the Tribunal received documents from the applicant’s solicitors described in the following terms:

   a.Department of Justice Corrective Services dated 23 October 2020

   b.Sentencing Remarks dated 22 October 2020

   c.Psychologist report of [Mr A] dated 9 February 2022

2. The first document was a sentence summary for the applicant dated November 30, 2020, for [a named] Prison.  It showed the details of the offending for which the applicant was imprisoned, and the details of his sentence.

3. The second document comprised the remarks made about the applicant by the presiding judge during his sentencing in 2020.  They relevantly included verification of the applicant’s guilty plea, that the seriousness of the offending was due to the traffickable quantity of methamphetamine that the applicant was involved in selling, and the willing involvement of the applicant in the sale of the methamphetamine. 

4. The sentencing remarks relevantly include the following passages, on which the Tribunal has relied in reaching its conclusions below:

I also note you - that you were - and your person and your vehicle was searched on that day and no drugs or drug paraphernalia were found...

…

Now, you were released from bail from [earlier] offending in May 2018 and to your credit you made some efforts to break your addiction. You got a Naltrexone implant which lasted for about a year and that seemed to work well for you.

Soon after the Naltrexone treatment wore off, you were involved in an accident where you were bitten by a dog and as I understand it had to be hospitalised for that. You began using methylamphetamine again after you were released from hospital…

I accept you’ve returned clean urinalysis in prison, so you’ve been clean of drugs there. You’ve earned prisoner privilege in a self-care wing working fulltime in the kitchen.

…

…I do accept that you have a genuine desire to rehabilitate and will take advantage of every opportunity you can do so in the prison system to do that, so I am prepared to allow some mitigation on that basis…

1. The psychologist report of [Mr A] (Report) confirmed that he had interviewed the applicant by videoconference on 19^th January and 9^th February 2022. The Report notes that [Mr A] has had the benefit of reading the following documents:

   a.Mandatory Cancellation Notification Package;

   b.Re-Notification;

   c.Ministerial Direction 90;

   d.Statutory Declarations;

   e.Outline of Defence Submissions;

   f.Criminal History Report Various Certificates.

2. Those documents were not provided to the Tribunal with the Report, nor is it clear to the Tribunal whether the ‘statutory declarations’ are those which are before the Tribunal.

3. It does not appear from the Report that the applicant had the benefit of an interpreter during his interview with [Mr A].  [Mr A] notes that “his grasp of English was limited, although he was able to both make himself understood and responded appropriately to the questions asked of him.”[2]  The Tribunal has taken this into account in considering small discrepancies between [Mr A]’ reporting of what the applicant has told him, and what the applicant told the Tribunal in evidence with the assistance of a translator.

   [2] Report, page 1.

4. The Report contained the following relevant conclusions:

   a.There was no clear evidence for a diagnosis of Post-Traumatic Stress Disorder[3];

   b.The applicant presents with some psychiatric symptoms but they appear to be related to an Adjustment Disorder as a result of incarceration and ongoing judicial process[4];

   c.There is no clear evidence that the applicant has an acquired brain injury[5];

   d.If the applicant returns to Vietnam it is “highly likely that he will relapse into further substance use”[6]; and

   e.“his risk for future offending could be mitigated should he undergo interventions in the community, which focus on increasing self-efficacy, harm minimisation and relapse prevention strategies”[7].

   [3] Report at [19]

   [4] Report at [28]

   [5] Report at [28]

   [6] Report at [31]

   [7] Report at [32]

25 February 2022 written statement from the applicant and hearing

1. At 10.42am on the morning of 25 February 2022 the Tribunal received an email from the applicant’s solicitors attaching a handwritten statement of the applicant comprising some 11 pages of submissions and evidence, written in what appears to be fluent English, with minimal spelling issues and a few grammatical issues.

2. The letter included extensive submissions with respect to the applicant’s fear of returning to Vietnam because of his Chinese heritage. Relevantly, it includes positive statements by the applicant that he has changed his way of life, has been free from drug abuse for 5 years, has taken life changing steps to avoid relapse, and is aware of assistance to deal with his addiction that is available from the Australian government if he is released from detention and can remain in Australia, assistance that he notes is not available in Vietnam. 

3. The Tribunal asked the applicant about the letter during the hearing and was satisfied that it was a genuine reflection of the applicant’s own position.  In particular, the Tribunal was satisfied that the applicant had resisted illicit drugs notwithstanding its availability in the prison system, and that the applicant had genuinely made a commitment to refraining from further drug use or illegal activity.

4. The Tribunal raised with the applicant and his mother during the hearing the possibility that the applicant might be entitled to Chinese citizenship or a right of abode because of his mother’s citizenship at the time of his birth.  Neither had explored the possibility, but both expressed the view that the applicant would not be considered a Chinese citizen and would not be entitled to citizenship or a right of abode.

5. At the conclusion of the hearing the Tribunal provided the applicant with a further 14 days in which to provide any additional evidence or submissions.

Post-hearing communications

1. On Wednesday 2 March 2022 the Tribunal wrote to the applicant’s solicitors to confirm that the Tribunal had made enquiries and was satisfied that the applicant did not have an existing right to enter and abide in China and was unlikely to be able to obtain such a right given his criminal history.  This was apparent to the Tribunal on the face of the DFAT Country Information about children born overseas to Chinese mothers.

2. On Friday 11 March 2022 the Tribunal received an email from the applicant’s solicitors attaching the following documents:

   a.a letter of the same date directed to the Tribunal, dealt with in more detail below;

   b.statutory declarations from the applicant’s sister and ex-wife;

   c.photographs of track marks on the applicant’s arm;

   d.an email sent by the applicant’s solicitors to [a law firm] in Vietnam on 25 February 2022, enquiring about an advice on Vietnamese nationality law, with no response attached;

   e.email exchanges showing that the applicant’s solicitors wrote to each of [Dr B] and [Professor C] (both of University of Melbourne) on 8 March 2022 to enquire about their availability and willingness to prepare an expert report on the nationality of the applicant and their responses confirming that they could not assist;

   f.an email exchange between the applicant’s solicitors and [Ms D], a human rights barrister based in the Northern Territory, in which the applicant’s solicitors enquired about [Ms D]’s availability to prepare an expert report about the nationality of the applicant and [Ms D] confirmed that she was available and that she anticipated such a report taking 1 – 1.5 days.  Her email included her daily rate.  Both the enquiry and the response were sent on 8 March 2022.

3. The letter to the Tribunal dated 11 March 2022 included:

   a.A note that the applicant’s sister and ex-wife both wished to attend a further hearing as witnesses in order to provide oral evidence in respect of any matters arising from their respective statutory declarations, unless their evidence was accepted or considered irrelevant by the Tribunal; and

   b.Further submissions, including on the applicant’s right of entry and abode in Vietnam, and the role that it should play in the Tribunal’s deliberations, being the heightening of the applicant’s risk profile and negative attention that he ‘will inevitably then draw from law enforcement authorities on entry into Vietnam’.

4. The letter to the Tribunal from the applicant’s solicitors included an assertion that [Ms D] “has indicated that she would require 14 days in which to conduct her assessment and prepare her expert report.”  That is an inaccurate characterisation of the email correspondence that was provided to the Tribunal, which indicated a preference rather than a requirement. It is, in fact, implied in the email that [Ms D] can provide a report in less time if necessary.

5. Nothing further was heard from the applicant by the Tribunal, although two weeks elapsed. On Friday 25 March 2022 a Tribunal officer contacted the applicant’s solicitors to enquire as to whether the Tribunal was likely to receive any expert material with respect to the applicant’s nationality and/or right of abode in Vietnam. 

6. On Tuesday 29 March 2022 the Tribunal received an email from the applicant’s solicitors confirming that the applicant’s family did not have the financial resources to obtain a report.  The 29 March email identified that:

the main basis for [the applicant’s] fears of returning to Vietnam is his high risk of relapse into drug use and the consequences that would flow, including the risk of harm arising from the likely mistreatment of him in compulsory rehabilitation camps and the lack of adequate treatment for him throughout Vietnam...he faces a real risk of relapse into substance abuse and, thereafter, of harm to him in compulsory rehabilitation camps.

1. The Tribunal has therefore proceeded to consider the matter on the basis of the evidence before it and the available Country Information. 

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The first issue in this case is whether the applicant meets the elements of the refugee definition in s 5H(1).  If the Tribunal decides that issue in the negative, then the issue will be whether the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam there is a real risk that he will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with the direction that the applicant does meet the elements of the refugee definition in s 5H(1).

Does the applicant have a subjective fear of harm?

1. The Tribunal is persuaded by the applicant’s evidence that he is genuinely afraid of serious harm if he returns to Vietnam because of his relationship with unlawful and addictive substances.

2. The Tribunal is not persuaded by the applicant’s claim to fear persecution as a result of either his Chinese heritage or his alleged statelessness. For the reasons that follow, however, it is not necessary for the Tribunal to traverse this aspect of the applicant’s claim. 

Is the applicant’s fear of harm from his self-identified status as a recovering drug addict well-founded?

1. The applicant’s submissions have emphasised that if he returns to Vietnam he will resume drug use, in spite of his every effort to avoid doing so. His submissions indicate that his fear of serious harm arising from his drug addiction is a fear of inevitable recidivism and the consequences if he is caught using or dealing in illicit drugs in Vietnam.

2. The Tribunal was provided with a copy of a decision of this Tribunal, differently constituted, indicating that ‘drug users in Vietnam’ are members of a particular social group.[8]

   [8] 1512295 (Refugee) [2015] AATA 3898

3. With respect, the use of illicit drugs is not an immutable characteristic, nor does the Tribunal accept it as an inevitable consequence of any immutable characteristic. As observed by Dr Bryan Adinoff:

Despite an enduring desire for alcohol or drugs, a sizable percentage of addicted patients maintain a lifetime of abstinence. The slip-induced relapse, the cue-induced cravings, the obsessive thoughts, and the return to drug use following traumatic events can be thwarted by a robust inhibitory control over the compulsive drive state.[9]

[9] Adinoff, “Neurobiologic Processes in Drug Reward and Addiction”, Harv Rev Psychiatry. 2004; 12(6): 305–320

1. Although the Tribunal accepts that the applicant does suffer some long term consequences as a result of his past drug use, the evidence before the Tribunal is that the applicant does not suffer from an acquired brain injury or any other psychological condition rising to such a level as to remove his freedom of choice.  He is, on his evidence, not currently using drugs, and has not done so for a significant period of time.  His evidence is that he intends to resist using drugs in the future, and his success in the recent past encourages the Tribunal to expect that the applicant will genuinely try his best to resist temptation and take all reasonable steps to ensure he is compliant with the law in the future.

2. The Tribunal finds that the mere use of illicit drugs, without more, is not a matter that falls within s5L(c)(ii).  The mere use of illicit drugs distinguishes the user from users from society only in the sense that they are people who wilfully disregard the law. 

3. Tribunal does accept that addiction to drug use is an immutable characteristic.[10] The applicant’s evidence is that, notwithstanding his current resistance, he remains a drug addict who will, without further assistance and support, continue to face a monumental struggle to control his cravings. The Tribunal accepts the applicant’s evidence, and finds that he is a drug addict who will remain a drug addict for the foreseeable future, and who will require assistance to exercise “robust inhibitory control over the compulsive drive state.”[11]

   [10] Anton RF, Moak DH, Latham P. The Obsessive Compulsive Drinking Scale: a self-rated instrument for the quantification of thoughts about alcohol and drinking behavior. Alcohol Clin Exp Res. 1995;19:92–9. Wang GJ, Volkow ND, Fowler JS, et al. Regional brain metabolic activation during craving elicited by recall of previous drug experiences. Life Sci. 1999;64:775–84.

   [11] Adinoff, “Neurobiologic Processes in Drug Reward and Addiction”, Harv Rev Psychiatry. 2004; 12(6): 305–320

4. The Tribunal finds that the applicant is a member of a particular social group comprising “drug addicts in Vietnam”, and further that he is a member of the social group “drug addicts in Vietnam who have been convicted of trafficking related offences”.  The significance of the second group is evidence in the reasoning below.

Treatment of recovering drug addicts

1. It is not an easy thing to break any addiction at the best of times, and as identified by the applicant and his solicitor, the applicant will be confronted by very difficult experiences on his return to Vietnam.

2. The applicant has recently demonstrated his ability to remain free from drug use in prison. It is relevant that, at the time of the applicant’s most recent offending, there was no evidence that he was himself using drugs again. There was no paraphernalia in his car, for example. It appears that he was caught in an unexpected circumstance and made a bad decision on the spot.  It was a single mistake on a path from serious crime and drug use back to a normal way of life, and it is noteworthy that he has not allowed it to draw him back to drug use and poor behaviour during his periods of imprisonment and detention.  Instead, he has demonstrated commitment to seeking help. 

3. Importantly, the applicant’s own words to the Tribunal both orally and in his own handwriting are that he is committed to turning his life around.  The Tribunal accepts that the applicant takes full responsibility for his past and future actions and accepts that he understands that he needs help from medical professionals and drug programs.

4. The Tribunal finds that the applicant will seek medical and social assistance to deal with his drug addiction when he returns to Vietnam.

5. For the reasons that follow, the Tribunal finds that the applicant’s drug use and criminal record will come to the attention of the authorities in Vietnam, his potential employers and landlords, and his social contacts.

6. The applicant has no proof of Vietnamese citizenship, and no history inside Vietnam to establish his identity there.  He has no home in Vietnam and no prospect of employment.  In applying for a passport, any rental accommodation, employment, and many other facets of everyday life there is a real chance that the applicant will be asked questions about any criminal record, his recent addresses (over a period of time that will capture his periods of incarceration) and about his reasons for leaving Australia. The Tribunal’s assessment proceeds on the basis that the applicant will answer such questions honestly.

7. Further, the track marks on the applicant’s arms mark him clearly as a potential former drug user, and he has no lawful explanation for them. 

8. It is not reasonable for the applicant to take steps to conceal his addiction and conviction in circumstances where such concealment would actively hamper his ongoing recovery and make it impossible for him to form meaningful and honest relationships in a country where he currently has no friends, family, trusted practitioners or close contacts.

9. The Tribunal therefore finds that there is a real chance that the applicant will be identified as a drug addict and a convicted drug dealer by the Vietnamese authorities, by potential employers, by potential landlords and by his community in Vietnam.

10. DFAT provides the following relevant information about the treatment of ‘drug users’ in Vietnam:

2.21 Drug users, especially amphetamine addicts, might be required to register with the police and may be detained at government treatment centres known as ’06 Centres’.  There are no drug substitution therapy options for methamphetamine addicts. Drug users typically spend 12 months in 06 Centres, though some remain for up to four years for post-treatment management.  In-country sources report that conditions in 06 Centres vary from centre to centre. They describe conditions as ‘prison-like’ (with guards, bars, razor wire and compulsory work) but generally clean and safe, if sometimes overcrowded. Sources told DFAT 06 Centres do not provide effective, proven medical treatment for drug addiction.

2.22 Heroin addicts may be diverted to methadone programs run by health professionals.  These programs have bee running since2008 and have been scaled up in recent years.  The number of people in 06 Centres has reduced as the availability of methadone programs has increased.  Methadone treatment is not free, but the costs are heavily subsidised by the Government.  Services may be available to patients outside of clinics, with methadone provided for use in the home.

2.23 It is difficult to say who will be taken on an 06 Centre rather than given drug substitution treatment. Substitution treatment is only available to opiod users; methamphetamine users do not receive substitution treatment. In general, if a drug user is referred to treatment through the health system, they are more likely to receive substitution treatment; if referred through police, they are more likely to be placed in an 06 Centre.  DFAT understands people caught by police more than once are more likely to be taken to an 06 Centre.

2.24 Social stigma against drug users is strong. Drug users may be seen as ‘morally weak’ and those subjected to stigma may experience discrimination from families and employers. Stigma exists against not only current drug users but also former and recovering drug users.  Drug use is seen as a moral issue and the media portray drug users negatively.  In-country sources told DFAT it may be possible to hide former drug use from, for example, employers, but families and communities are likely to know that a person is or has been a drug user and thus people may be subject to stigma.

1. “06 Centres” appear to be the compulsory drug rehabilitation centres that are referred to in the applicant’s submissions and evidence, and the Tribunal will refer to them both as compulsory drug centres.

2. According to a March 2018 report by Human Rights Watch:

People dependent on drugs, including children, are frequently held in government detention centers where they are forced to perform menial work in the name of “labor therapy.” Violations of center rules and failure to meet work quotas are punished by beatings and confinement to disciplinary rooms where detainees claim they are deprived of food and water. State media reported that during the first six months of 2017, authorities sent 3,168 people to centers in Ho Chi Minh City, increasing the number of drug detainees held in the city to 11,317. In August, the government issued Decree 97 that expands the categories of people who can be sent to compulsory drug rehabilitation centers.[12]

[12] ‘Human Rights in Southeast Asia: Briefing Materials for the ASEAN-Australia Summit’, Human Rights Watch, 14 March 2018

1. An article in Harm Reduction Journal describes societal attitudes towards drug users:

Vietnam is heavily influenced by Confucianism, which holds that the self should be considered last and that one should always devote one’s attention to the country and the family first. Communism, which was introduced into the country in the midst of harsh wars, echoed this norm in order to unify the country and mobilize people. People with addiction therefore have always been seen in a negative light as self-indulged, selfish, and spoiled. In addition, as evidence-based addiction treatment has only been introduced very recently with the initiation of methadone treatment programs (which so far have covered less than 10% of people with drug addiction), drug users need money to buy drugs, and they commit crimes. Although most of the crimes committed by drug users are petty crimes, they affect everyday life in Vietnam and drug users are thus perceived as dangerous, creating public chaos and deserving of punishment. Punitive measures therefore receive strong support from both policy makers and the general public. Even for those drug users without HIV infection, the risks to their liberty are great through an extrajudicial administration system that can enforce mandatory incarceration for up to four years based solely on positive drug test results.[13]

[13] ‘Drug users in Hanoi, Vietnam: factors associated with membership in community-based drug user groups’, Eleanor Hayes-Larson et al, Harm Reduction Journal, 22 November 2013, p.2

1. The Country Information does not draw a crisp distinction between drug users and drug addicts, aside from the observation that former drug use may be hidden from employers but can’t be hidden from the community.  The Tribunal considers that the nature of the stigma against drug users predisposes it to apply to recovering addicts as well as ongoing users.

2. It light of the identified stigma in Vietnam, the Tribunal considers it unlikely that the applicant will be able to secure accommodation or employment, given his criminal record and his drug addictions.  It is unlikely that the applicant will be able to form meaningful connections within the community, aside from former and current drug users.

3. The Tribunal finds that there is a real chance that the applicant will suffer systemic and discriminatory conduct rising to the level of serious harm because:

   a.it will cause him serious economic harm, and affect his capacity to subsist; and

   b.it will cause him serious psychological harm in the form of complete social isolation in circumstances where he has some pre-existing psychological vulnerability.

4. The Country Information is that there is a real chance that a medical practitioner in Vietnam will refer the applicant for substitution treatment but there is also a real chance that a medical practitioner in Vietnam will refer the applicant to compulsory drug centre and/or report the applicant to the authorities for registration as a drug user.  Alternatively, the applicant may be compelled to admit himself in a compulsory drug centre for treatment, if it is the only means by which he can obtain the assistance that he needs.

5. According to the information available from Human Rights Watch, which has previously been relied on by this Tribunal in this context[14], even those detainees who entered on a voluntary basis said that they were not free to leave and that their detention was arbitrarily extended by centre management or changes in government policy.[15]  The same report included comments from former compulsory drug centre inhabitants in the following terms:

   [14] 1512295 (Refugee) [2015] AATA 3898 (10 December 2015)

   [15] Human Rights Watch, Vietnam: Torture, Forced Labour in Drug Detention,

People did refuse to work but they were sent to the disciplinary room. There they worked longer hours with more strenuous work and if they balked at that work; then they were beaten. No one refused to work completely.

…

I had a quota of 30 kilos [of cashews] a day and worked until they were done. If you refused to work you were sent to the punishment room and after a month [there] you agreed to work again.

…

Work was compulsory. We produced bamboo furniture, bamboo products, and plastic drinking straws. We were paid by the hour for work eight-hour days, six days a week.

…

On paper I earned [VND] 120,000 a month but they took it. The center staff said it paid for our food and clothes.

…

If we opposed the staff they beat us with a one-meter, six-sided wooden truncheon. Detainees had the bones in their arms and legs broken. This was normal life inside.

…

[The solitary confinement cell] was about two meters by two meters with a small seat and small window. A toilet hole led outside. You could be held alone there for one to four months.

…

No one refused to work by not going to the workplace. Everyone worked, including the children.[16]

[16] Human Rights Watch, Vietnam: Torture, Forced Labour in Drug Detention,

1. There is nothing in the current country information to suggest that the situation for inhabitants of a compulsory drug centre has improved since these accounts were recorded.

2. The Tribunal accepts that the treatment of drug addicts in a compulsory drug centre rises to the level of serious harm.  The Tribunal therefore finds that there is a real chance that the applicant will be subjected to serious harm as a result of becoming incarcerated in a compulsory drug centre.

Conclusion

1. The applicant’s fear of persecution for the essential and significant reason of being a drug addict in Vietnam who has been convicted of trafficking related offences is well-founded.  There is a real chance that the applicant will be identified as an addict, and that he will be subjected to serious harm as a result of his inclusion in this particular social group.  The real chance of persecution relates to all areas of Vietnam.  There are no reasonable modifications of behaviour that will hide his social group, given that he has no proof of identity, no home, no employment, and no history in Vietnam. 

2. The Tribunal is satisfied that the applicant is a refugee as defined in s 5H(1).

3. The Tribunal notes that the material before it may give rise to issues relating to s 5H(2). The Migration and Refugee Division of this Tribunal, in considering an application for review of a decision to refuse or cancel a Protection visa, has no power to determine s 5H(2) issues.

4. As the Tribunal is satisfied that the applicant is a refugee as defined in s 5H(1), the matter will be remitted to the Department for reconsideration, including consideration as to whether s 5H(1) does not apply in this instance, because of the application of s 5H(2). 

DECISION

1. The Tribunal remits the matter for reconsideration and directs that the applicant is a refugee within the meaning of subsection s 5H(1) of the Act.

Jessica Henderson
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

7 September 2011

7 September 2011