2200956 (Refugee)

[2022] AATA 3890

2200956 (Refugee) [2022] AATA 3890 (31 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2200956

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Penelope Hunter

DATE:31 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2022 at 4:19pm

CATCHWORDS
REFUGEE – protection visa –Vietnam – oppressive regime – experienced no harm in Vietnam – criminal offences in Australia – wife and child in Australia – credibility issues – claims vague, general, unsupported details personal to the applicant – no corroborative evidence – applied for protection visa to be released from detention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499

CASES
MIEA v Guo (1997) 191 CLR 559
MIAC v SZQRB (2013) 210 FCR 505
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 February 2015 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 22 January 2015. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations.  

   Criteria for a protection visa

3. 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.

4. 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.

5. 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).

6. 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.

7. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. 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.

   Background and ClaimS

   Information contained in the Department File

9. The applicant is [an age]-year-old single male from Hung Yen Province, Vietnam. His parents and sister continue to live in Vietnam. He obtained post-secondary education in his home country with the award of a Diploma [in] 2011. He arrived in Australia [in] October 2013 on a Subclass 573 student visa valid to 15 March 2018.

10. [In] September 2014, [State 1] Police contacted the Department and advised that the applicant had been taken into custody, and was charged with a number of criminal [offences].

11. On 7 November 2014, the applicant’s student visa was cancelled under s 116(1)(fa)(i) of the Act, as he was found to be a non-genuine student. The applicant consequently became an unlawful non-citizen. [In] November 2014, the applicant was released on bail by Melbourne Magistrate’s Court and the detained under s 189 of the Act and transferred to immigration detention.

12. [In] December 2014, the applicant was refused a Criminal Justice Stay (Subclass ZB 951) visa. While in immigration detention the applicant applied for the protection visa under review. On 27 January 2015, his related application for a Subclass 050 (Bridging E) visa was refused.

13. In his visa application, the applicant set out the following claims:

    i.He left Vietnam to come to Australia as an overseas student and did not want to go back there because Vietnam was not a democratic country and its regime is still very oppressive. There was no real freedom, including freedom of religion and expression. The Catholic Church has been persecuted severely. People’s lands were confiscated by the government illegally. In Vietnam human rights are not respected. When you do business with government you are supposed to bribe dignitaries and officers.

    ii.When asked if he had experienced harm in his country, the applicant indicated “yes”, and provided details that there had been no real freedom or rule of law to protect him when he dealt with government cadres, dignitaries and authorities at all levels.

    iii.If he returned to Vietnam the applicant said that he thought that he would not be welcomed back and that the authorities may set up more pretexts to create more problems for him and his family. He may have to find money to pay for bribes and they may even put him in jail.

    iv.He thinks that the local authorities, the local police and later the Central government of Vietnam may harm or mistreat him if he goes back.

    v.This will happen to him because he has expressed his opposition to the ways of the local authorities are doing their business.

    vi.He did not think that the authorities in Vietnam would protect him as they consider him an opponent.

14. The applicant underwent an interview with a delegate of the Minister on 18 February 2015, the delegate in their decision record, a copy of which the applicant has provided to the Tribunal, records that the applicant made the following further claims:

    i.In Vietnam the government and police “are not good”. When driving police would ask for bribes and even if he was not at fault for breaking any traffic laws they would demand money.

    ii.Although he is Buddhist he has observed the Vietnamese government telling people not to be Catholic.

    iii.When he was [working] in Vietnam he could not apply for a job because he would need to give money. Corruption and bribery was common in Vietnam.

    iv.He said that if you talk against or disagree with the government you will be caught by the police and this could also have an impact on your family. Many people are put into prison for speaking out against the Vietnamese government.

    v.The applicant stated that if you go overseas and return to Vietnam the government asks a lot of questions about your “personality”. He believes that if Vietnamese people go to another country they are viewed as being against the Vietnamese communist government when they return. As he went overseas and came back to Vietnam he believes there will be no work for him or his family.

    vi.He said that he had never done anything against the government in Vietnam. However, in Melbourne in approximately December 2013 he went to the city and joined a small group who were protesting for human rights in Vietnam. He could not remember the name of the group.

    vii.He admitted that he had not done anything against the Vietnamese government in Vietnam.

15. In refusing the visa, the delegate noted in their decision record of 27 February 2015, that the applicant had given inconsistent information to the police and the Department about compliance with his student visa. It was not accepted that the applicant had ever spoken out against the Vietnamese government or exhibited any visible opposition in either his home country or Australia. Consequently, it was not considered that the applicant had any profile that would be of interest or cause him problems with the authorities in Vietnam. The delegate referred to a response that the applicant had given during an interview with a Compliance officer on 23 January 2015, where he stated that he had applied for the visa because there was an associated BVE and he was hoping to be granted release from detention. The delegate questioned the reliability and creditability of the applicant’s claims and it was found that he more than likely embellished aspects of his claims to remain in Australia.

16. On 6 January 2022, the Department re-notified the applicant of the decision to refuse the Protection visa under review, as it was assessed that he was not correctly notified in the first instance.

17. On 25 January 2022, the Tribunal received an application for review from the applicant. He was invited to attend a hearing before the Tribunal on 26 August 2022, to give evidence and present arguments. The hearing took place via MS Teams video with the applicant as the applicant was in [immigration detention]. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages.

18. At the hearing, the applicant discussed with the Tribunal the following relevant information:

    i.The applicant said that he lived formerly with his parents, his sister and her two children in Vietnam. His mother is [an occupation] and she also has her own business. His father and sister are [occupations]. In Vietnam he had worked in his mother’s [business].

    ii.He has not completed any other qualifications in Australia or Vietnam since his Diploma [in] 2011. He worked only for a few months in Australia in [2014]. Most of the time in Australia he has been supported by funds sent by his mother.

    iii.He cannot return to Vietnam because on 21 March 2016 after he was granted a BVE and about to return the local government members came to his family as they expected he had returned and asked him to attend the police station for questioning. They told his family that they had a document saying that he would be back in Vietnam on 21 March 2016. When asked if his family had any problems arising from this the applicant said that they also came to his mother’s work. When asked again if his family had any problems from these enquiries the applicant said that there were no problems at the time because his mother had already retired. The Tribunal asked the applicant how his mother was continuing to support his as claimed since 2016 if she had already retired, and the applicant then said she was still operating her business.

    iv.The applicant said that because the local authorities had a document claiming that he would return on 21 March 2016, he cancelled his ticket Vietnam and did not wish to return. When asked what document was issued the applicant said that the local authorities had information that he had been issued a Bridging visa E. The applicant was asked whether he was claiming that the Department of Home Affairs informed his local government in Vietnam that he was returning. The applicant responded in the affirmative and said that he was told that the Department of Home Affairs had to  contact and released information to the local government in Vietnam when they issue the ticket for him to return. Due to this he became really scared and did not return to Vietnam.

    v.The applicant was asked why the authorities would be wanting to question him and he said this was because he had a criminal record in Australia. The applicant confirmed the information contained in the delegate’s decision that he was charged with four [related] matters in 2014. He said that he was only ultimately convicted in relation to one charge [and] the sentenced to a custodial term of 12 months. Later he was convicted of a further offence [in] 2021. At this time he served a period of 13 months imprisonment. The applicant said that he had no further charges pending and that he had served all penalties imposed by the Australian courts. In these circumstance the Tribunal asked the applicant why these matters would be of interest to the authorities in Vietnam, and the applicant said that there is a law in Vietnam that if you have a police record you have to go to the police station. The applicant confirmed that he did not have a criminal record in Vietnam. He also said that he did not plan to commit further [related] offences, or any other offence, if return to Vietnam. The Tribunal invited the applicant to comment on country information that persons convicted overseas of serious crimes who have completed their sentence and returned to Vietnam are not subject to further trial in Vietnam for the same crimes. In reply the applicant maintained that the authorities came to look for him and this made him worried.

    vi.The Tribunal asked the applicant what he thought would happen if he reported to the police station and he said that he was not sure but he thought that the authorities would give him a lot of trouble. When asked what type of trouble the applicant again said that he did not know.

    vii.Pursuant to the provisions of s 424AA of the Act the Tribunal discussed with the applicant information on the Department file about the BVE he had sought in 2016. The applicant was advised that  the relevant information was that on 18 March 2016, he applied for the BVE on the basis that he would present a ticket for his departure from Australia by 1 April 2016. It  was on this basis that he was granted the visa on 23 March 2016. Not because the Australian government had arranged his ticket or his departure, further his departure date was not until after 1 April 2016. The applicant was informed the information was relevant because he had arranged the airline ticket not the Australian government, so there was no reason to check with local authorities. He was also not granted a BVE until 23 March 2016, and his date of departure was to be after 1 April 2016,  so the local authorities would not have expected him on the dates he had claimed. The applicant was further informed if relied upon the information may cause the Tribunal to have concern about the credibility and reliability of his claims. The applicant elected to respond immediately and confirmed the dates as put to him by the Tribunal. He said that it was correct he had purchased his own ticket and he was to arrive after 1 April 2016, then the local authorities came to his place on 21 March 2016 to ask to ask for him. The Tribunal put to the applicant that unless he had told the local authorities that he was coming there was no reason for them to have information that he would be returning to Vietnam at this time. In reply the applicant said that the Australian government had said that they already had made arrangements for a ticket for him on 21 March 2016. He then contacted his solicitor and his solicitor to tell the Department that he had arranged a ticket for 1 April 2016, so the Department then cancelled the earlier ticket. It was put to the applicant that there was no information before the Tribunal to corroborate this, there was no evidence of any deportation order and also no reason for the Department to contact local authorities about his arrival, the applicant did not provide a further response.

    viii.Another reason that the applicant said he could not return to Vietnam was because he had a family in Australia. In 2018 he had married and in October 2019 they had a daughter. His mother sends funds to support his family. He said that his wife and child could not return to Vietnam with him because his wife had another child to a previous relationship and it was too difficult. His wife is also from Vietnam and may be an Australian resident. He wished to stay in Australia permanently to be with his family.

    ix.The Tribunal asked the applicant about his claims that Vietnam was not a democratic country and that the regime was oppressive and if he was still claiming he needed protection for his reason. The applicant said that he would be badly affected by this even if they were not going to jail him because of his criminal record. He said if he returned whatever he asked for would be rejected. The applicant did not provide the Tribunal of examples of things he would ask for. When asked if anything had happened in the past to him in Vietnam for this reason he responded in the negative.

    x.The applicant was asked about his claims of lack of freedom of expression, and how he had expressed his opposition to the ways the local authorities were doing their business as he claimed. The applicant said that nothing had happened to him in the past. He said that he did not like the way that they ran the society but he had never expressed any opposition while in Vietnam.

    xi.The applicant and his family had experienced no problem with land confiscation in the past in Vietnam. The applicant said that he was a Buddhist, he not suffered any harm in the past in Vietnam due to his religion. He had not had any problems or difficulties with government cadres, dignitaries or authorities at any level. He had not been required to pay bribes, he did not have problems with the police while driving. He had no problems and was never harmed before he left Vietnam. Nothing happened to him and he did not do anything. When asked if the authorities in Vietnam would have considered him an opponent when he departed, the applicant responded in the negative.

    xii.The applicant was asked whether he had publicly participated in any activity in Australia that would be of interest to the Vietnamese government and he said he had not. He was also asked whether he had done anything while in Australia that was critical of the government of Vietnam and he then said that he had shared some comments on [social media] relevant to people from Vietnam who live in Australia. When asked to identify the content, the applicant said that he had shared on [social media] comments critical of the government of Vietnam. The applicant was asked how often he did this and he said that he had followed it very closely and some days he would share two or three articles. The applicant was initially unable to specifically identify any article that he had shared, they just commented to on the government. He was asked again and he said it was about the political regime. Under further questioning he said that it was about the government taking bribes. In response to further questions from the Tribunal he said that the last time he had done it was before he was arrested in 2021. His [social media] profile is kept public and has a photo of him attached. The Tribunal questioned why he would keep his profile public if he was sharing the type of information he claimed, and the applicant said that he just left if for others to see. The applicant was invited to provide to the Tribunal evidence of his posts after the hearing by 29 August 2022. The method of providing his evidence to the Tribunal was confirmed with him and it was confirmed that he had daily contact with his partner to assist with access to his [social media] account. It was identified to the applicant that the Tribunal expected if his claimed were truthful he could produce evidence of critical posts he had shared two- three times a day for several years prior to 2021. The applicant was also asked to comment on the delay in raising this claim and he declined.

    xiii.The applicant was asked to comment on information contained in the delegate’s decision record that when interviewed by a compliance officer of the Department in January 2016 he said had he had only applied for a Protection visa as it was associated with a BVE and he wanted to be granted released from Immigration detention. The applicant responded that this was true.

    xiv.The applicant was asked to comment on the delay in lodging his claim for protection, particularly even though he arrived in 2013, it was not until January 2015 while in immigration detention that he lodged the application and whether he had a reasonable explanation for the delay, and he declined.

    xv.The Tribunal raised with the applicant that his original claims did not appear to be based on his actual experience, and the applicant said that there were no direct consequences that had happened to him in Vietnam in the past.

    xvi.The Tribunal discussed with the applicant country information about public criticism of the government, and the fact that he had no profile in the past, and it was low level sharing of posts that he claimed to be involved in under a different name, in these circumstances it was considered that the authorities in Vietnam would have no interest in him. In response the applicant said that he had a family in Australia and wanted to stay with them. He said he knew for a fact he would have problems if he went back to Vietnam.

    xvii.The Tribunal asked the applicant about his claims to the Department that the government would ask questions about his personality if he returned from a western country, and that he would be viewed as against the government. The applicant said that he was maintaining these claims. The applicant was asked to comment on country information produced by DFAT that returnees were not subject to serious problems upon return to Vietnam including those who had previously sought asylum, it was noted that one thing that could bring attention was that if a person had left illegally, was involved in people smuggling or was a high-profile anti government activist and he would not attract interest for these reasons. The applicant declined to comment.

    xviii.The applicant confirmed that he could return to live with his family if he went to Vietnam and they would support him.

    CONSIDERATION OF Claims and evidence

    Nationality

1. It is accepted that the applicant is a national of Vietnam on the basis of the passport, that he has submitted to the Department, together with his oral evidence. The Tribunal will assess his claims on that basis. The Tribunal further accepts that he does not have the right to permanently enter and reside in any country other than Vietnam. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and that Vietnam is the receiving country for the applicant for the purposes of s 36(2)(aa) of the Act.

   Does the applicant have a well-founded fear of persecution and is the applicant a refugee?

2. The mere fact that a person claims to fear 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, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

3. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.

4. The Tribunal did not find the applicant to be a credible witness. His claims for protection were vague, general and were unsupported details personal to the applicant and by any corroborative evidence. Relevantly, when questioned as to the specifics of each of each of his claims as set out in his visa application, the applicant did not maintained that he had experienced any harm in the past in Vietnam for any of the reasons set out. Particularly, the applicant confirmed for the Tribunal that he had no problems in Vietnam due to his religion, or land confiscation. Although he claimed in his visa application he had experienced harm in the past in Vietnam, his evidence to Tribunal was that nothing had actually happened. He had not had to find money for bribes to the authorities, no adverse dealings with government cadres, dignitaries or authorities and he had not expressed his opposition to the way of the local authorities doing their business. He had no personal instances of oppression, or instances where his family had encountered problems. The applicant could provide no evidence as to why anyone in Vietnam would view him as an opponent at the time of his departure in 2013. He confirmed that he was able to have his passport issued and depart the country without incident. The applicant could offer no evidence to the Tribunal as to any past personal experience in Vietnam that would give rise to a reasonable apprehension of fear on his return.

5. The applicant raised additional claims when interviewed by the delegate which were also not substantiated in his evidence to the Tribunal. The claim of the applicant that he could not apply for a job without paying a bribe was not reflective of his actual experience as told to the Tribunal. In fact his evidence is that all his family are gainfully employed and he had worked in the past in his mother’s [business]. Although the applicant made claims at the delegate’s interview that he had participated in a small demonstrated in late 2014 protesting human rights in [State 1], his evidence to the Tribunal was that he had never engaged in any public activity in Australia critical of the Vietnamese government. The ongoing inability of the applicant to maintain and support the various claims that he made further demonstrated to the Tribunal that the applicant was not a credible witness.

6. It was also considered that the new claims raised by the applicant at the Tribunal hearing lacked corroboration, plausibility and reliability. The date of 21 March 2016, when the applicant claimed that local authorities in Vietnam came looking for him at his home pre-dates his grant of a BVE, the fact that he had to present a departure ticket to the Department by 1 April 2016 and the information from the applicant’s BVE application as discussed with him pursuant to the provisions of s 424AA of the Act. It was ultimately conceded by the applicant is that he had arranged his own ticket to return to Vietnam. There is no information to support his claims that earlier arrangements had been made by the authorities in Australia for a departure on 21 March 2016, and no basis for any contact with local authorities in Vietnam facilitate this. Furthermore, to facilitate the return of the applicant the disclosure of his past criminal activity would not be relevant. The only reason for any enquiries by the Australian government would be to facilitate the issue of travel document for the applicant, but in the particular circumstances the applicant had, and continues to have, a valid passport. He has no need for a further travel document, and there is no evidence before the Tribunal of any deportation order. The Tribunal is not satisfied that the claim is reliable, the shifts and changes in the applicant’s evidence when asked to explain these matters further demonstrate to the Tribunal that the applicant was not a witness of truth. The Tribunal does not accept that the authorities in Vietnam came looking for the applicant at this time or that any communication was made by Australian officials to the authorities in Vietnam about the past criminal history of the applicant. The Tribunal considers this claim a further invention by the applicant to facilitate a permanent migration outcome.

7. Despite the invitation, and opportunity provided by the Tribunal, the applicant has not produced any evidence to corroborate his claims at the hearing of regular [social media] posts critical of the authorities in Vietnam. The applicant initially when questioned was unable to provide clear particulars of the content of any posts that he had shared. Only when pressed, and questioned several times, did he identify that it may relate to the payment of bribes by officials. As the applicant had not been politically active in the past the Tribunal did not find it probable that he would engage in this kind of activity. Additionally, as the applicant expressed concern about the authorities in Vietnam having interest in him because he had a criminal record, the Tribunal finds that applicant would not engage in any activity that would draw attention to himself, on a public account for others to see. Furthermore, although the applicant claimed to have been engaging in this conduct for years he did not raise any similar claims at the time of his visa application or before the delegate. When invited to comment the applicant could provide no explanation for the delay in raising this claim, and the lack of any reasonable explanation for the delay gives rise to a further inference unfavourable to the applicant. In assessing the evidence in totality, due to the concerns indicated above the Tribunal does not accept that the claims by the applicant to have engaged in any activity critical of the authorities in Vietnam is reliable or factual.

8. The applicant also confirmed for the Tribunal information contained in the decision record of the delegate that he had conceded when interview by Department compliance officer on 23 January 2015 that he applied for the protection visa under review because it had a bridging visa attached and that he was seeking to be released into the community. He further confirmed to the Tribunal when questioned that it was true, when interviewed by an officer of the Department compliance officer on 23 January 2015, he had conceded that he did not understand the criteria required for a protection visa and that he saw the application as a means to be released into the community. These concessions, together with the inability of the applicant to maintain consistent claims, further confirm for the Tribunal that it was not a fear of harm upon return to Vietnam that motivated the visa application but rather a positive migration outcome.

9. The Tribunal draws a further inference adverse to the credibility and the reliability of the claims of the applicant from his delay in lodging a protection visa application. It is considered that if the applicant had any genuine fears of harm in Vietnam he would have lodged a protection visa application shortly after his arrival in Australia in October 2013, or proximate to the time the cancellation of his first enrolment which the delegate records as February 2014, or even upon his student visa cancellation in November 2014. The delay by the applicant, together with his concessions as to his motivation in apply for the visa, as set out above, demonstrate that the claims expressed by the applicant did not have any gravity, or that he held any genuine fears of returning to Vietnam.

10. The Tribunal finds that the applicant was never harmed in Vietnam in the past and did not have a profile or engage in any activity in Vietnam that would cause him to be of any interest to anyone upon his return. The Tribunal is also not satisfied that the applicant has engaged in any activity critical of the authorities in Vietnam while Australia, publicly or on social medial that would cause him to be of any interest to the authorities in Vietnam or anyone else.

11. The Tribunal has further considered the country information as to the general claims made by the applicant. As discussed with the applicant at hearing, 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.[1] The 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. There are comments that public criticism of the government is commonplace and has been growing in recent years. Although the state does not allow any formal opposition, informal criticism has been growing for decades. [2] DFAT comments that threats to the state are not tolerated[3] and that it is difficult to make an assessment to the overall risk to activists as there are no clear patterns to determine who may be arrested and when.[4]  In the particular circumstances of the applicant the Tribunal is not satisfied that the applicant has ever been, or would in the future be engaged in political activity in Vietnam, or participate in any human rights activism that would in the future draw him to the adverse attention of the Vietnamese government.

    [1] 116 Examples include: ‘Conflicted Citizenship in Vietnam: Between grassroots mobilization and state repression’, Mirjam Le and Franziska S. Nicolaisen, in Vietnam at the Vanguard: New perspectives across time, space and community, eds. Jamie Gillen et al, Springer, Oct 2021, p.34, 20220202105539; 'Benedict J. Kerkvliet on Speaking out in Vietnam', The Diplomat, 1 July 2020, 20210317120924; 'Citizens are speaking out in Vietnam', Benedict J Tria Kerkvliet, East Asia Forum, 23 August 2019, 20190827083841; 'Speaking Out in Vietnam: Public Political Criticism in a Communist Party-Ruled Nation', Thaveeporn Vasavakul, Contemporary Southeast Asia, 01 December 2019, 20210326133233; 'Buckley on Kerkvliet, 'Speaking Out in Vietnam: Public Political Criticism in a Communist Party–Ruled Nation'', H-Net, 1 December 2019, 20210323101336; ‘Postdoc Spotlight: Nhu Truong Compares Government Responsiveness in China and Vietnam’, Stanford University, 25 May 2021, 20220201151634; 'Domestic and Foreign Policy in Vietnam: The Future of Vietnamese Civil Society', Carl Thayer, Georgetown Journal of Asian Affairs, 2019, pp.122-123, 20210326145456; 'Vietnam’s Communist Party is in a weaker position than it seems', The Economist, 21 January 2021, 20211026100712

    [2] “Vietnam’s Communist Party is in a weaker position than it seems” The Economist, 21 January 2021

    [3] DFAT Country Information Report - Vietnam, 11 January 2022, section 3.49

    [4] As above at section 3.57

12. The applicant refers to the impact of corruption in Vietnam and has made claims about the payments of bribes for matter such as traffic offences or to obtain employment. However, he has not identified any particular incidents that happened to him and had no evidence to offer the Tribunal as to how he was affected by the activities of corrupt officials.  In relation to corruption DFAT has reported that Vietnam ranked 104 out of 180 countries in Transparency International’s 2020 Corruption Perceptions Index. A large anti-corruption campaign in 2917 and 2018 saw thousands of investigations and prosecutions that included senior government officials and senior business leaders. [5]  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. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services.[6] Considering the country information, the Tribunal accepts that, notwithstanding recent attempts by the Vietnamese government to address corruption does exist and remains an issue in Vietnam. It is also acknowledged that ordinary Vietnamese people such as the applicant may impacted by corruption, although it is not satisfied that he has been impacted in the past. However, it remains that the Tribunal is not satisfied that any corrupt behaviour that the applicant might experience in the future would amount to persecution involving serious harm for one or more of the reason enumerated in s 5J(1)(a) of the Act.

    [5] DFAT Country Information Report, Vietnam, 11 January 2022 at 2.10

    [6] As above at 2.11

13. It is accepted that the applicant has criminal record in Australia arising from two [related] convictions. The applicant claimed that the authorities wished to question him in relation to his convictions however the Tribunal did not find this claim reliable. It is also not accepted that the Australian authorities have disclosed the criminal record of the applicant to his local authorities in 2016 or at any other time. If his past record did become known to authorities, it is also noted that the applicant could not identify for the Tribunal the consequences that would flow from police questioning or the basis for the questioning, other than it would be bad for him. Tribunal has had regard to country information regarding the return of persons to Vietnam with criminal convictions. Double jeopardy would occur when a Vietnamese citizen is charged and convicted of a crime in another country, and then returns to Vietnam and is prosecuted for the same crime. DFAT advised in January 2021, that Article 6 of Vietnam’s Criminal Code provides that people who have committed offences overseas where the sentence has not been served may be examined for penal liability in Vietnam.[7] In the particular circumstances of the applicant, he has in fact been convicted and he claims to have served his full sentence for all matters with which he has been charged. On the country information the applicant would not be subject to examination for this reason. Further, in January 2022, DFAT also reported that it was not aware of any cases of double jeopardy in practice.[8] According to DFAT, under Article 31 of Vietnam’s 2013 Constitution, a Vietnamese citizen who has been convicted or acquitted of an offence overseas cannot be charged again for the same offence in Vietnam, and it reported in January 2021,  that it was not aware of any specific cases of returnees to Vietnam who had been arrested, prosecuted or convicted of an offence that they had committed overseas, suffering legal sanctions or punitive actions.[9] The Tribunal therefore does not accept the claims of the applicant that he would be treated badly because of his [convictions] in Australia on return to Vietnam. The applicant has further confirmed, and the Tribunal finds, that he has no criminal convictions in his home country. He also told the Tribunal that he does not intend to commit any further offences in Vietnam. The Tribunal is not satisfied on the information before it that the applicant will suffer harm if he returns to Vietnam now or in the reasonably foreseeable future because he has a past criminal record in Australia.

    [7] Double Jeopardy in Vietnam, DFAT, 13 January 2021

    [8] DFAT Country Information Report - Vietnam, 11 January 2022, section 5.11

    [9] Double Jeopardy in Vietnam, DFAT, 13 January 2021.

14. It is also accepted that the applicant will be returning to Vietnam from a western country, and if the visa is refused he will be returning having made unsuccessful claims for asylum. The Tribunal has had regard to the following information regarding the treatment of failed asylum seekers upon return to Vietnam:

    According to DFAT in-country sources report that all individuals involved in people smuggling operations whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement. [10]

    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.[11] Further DFAT comments that being a failed asylum seeker is not stigmatised. [12]

    The Tribunal finds on the basis of the applicant’s evidence that he departed Vietnam legally by plane, travelling on a valid passport. He also confirmed for the Tribunal that he was not involved in any illegal activity, he is not a people smuggler and there is no evidence that the applicant has been involved in the illegal movement of any persons. The Tribunal has further found that the applicant has not engaged in any activity critical of the government of Vietnam prior to his departure or in Australia. He has also not engaged in any human rights activity. The Tribunal finds that the applicant does not have a profile that would make him of any interest to the authorities in Vietnam. Even upon the remote possibility of the applicant being question upon his return, it is not satisfied that this questioning would amount to persecution involving serious harm. Further, given the profile of the applicant as discussed above the Tribunal does not accept that as a consequence of this questioning the applicant would be subject to any adverse attention by the authorities or anyone else, or that his family in Vietnam would be subject to adverse attention, such that it would amount to persecution involving serious harm to the applicant for one or more of the reason enumerated in s 5J(1)(a) of the Act..

    [10] DFAT Country Information Report – Vietnam, January 2022 at 5.30

    [11] As above at 5.31

    [12] As above at 5.34

1. The Tribunal accepts that the applicant does not wish to leave his family in Australia, and further that these ties in Australia further motivate him to achieve a positive migration outcome. Although the applicant had indicated that his family would not accompany him to Vietnam it is noted that this was not due to any reasons that would give rise to a fear of serious harm.

2. The Tribunal accepts that the applicant can return to live with his family in Vietnam and that they will continue to support him.

3. Therefore, considered cumulatively, the multiple concerns regarding the evidence of the applicant, as outlined above, lead the Tribunal to conclude that the various claims of the applicant as to the reasons that is claiming protection or his activities in Australia and the reasons that he fears harm if he was to return, are not truthful, reliable or factual. The Tribunal is not satisfied that the applicant has ever been involved in activities critical of the government, local authorities, the police or anyone else in Taiwan. It is not satisfied that the applicant has previously faced any harm in Vietnam as a consequence of his religion or due to any land claims. It is not satisfied that as a Buddhist and a non-property owner that he would face harm upon return to Vietnam in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant has faced problems with employment, free speech or that he has sort to express his view freely in Vietnam, Australia or through social media. The Tribunal also does not accept that the applicant has any profile that would be of concern to the authorities in Vietnam due to his criminal record in Australia, the fact that he has lived in a western country or due to the fact that he made unsuccessful claims for asylum in Australia. It is not accepted that the government, local authorities, police or anyone else in Vietnam would have any interest in the applicant, his family or wish him serious harm. On the material before it the applicant has fabricated these claims for the purposes of obtaining a positive migration outcome and remaining in Australia. 

4. Having considered the applicant’s claims individually and cumulatively the Tribunal is not satisfied that there is a real chance that the applicant will suffer persecution for any of the reasons enumerated in s 5J(1) of the Act, now or in the reasonably foreseeable future.

5. Accordingly the Tribunal is not satisfied that the applicant is a person in respect of whom the applicant has protection obligations under s.36(2)(a) of the Act.

   Complementary protection

6. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) Act.

7. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The applicant’s claims to complementary protection are essentially the same as those under the refugee criterion above. Those claims have failed as set above because the Tribunal is not satisfied that the reasons that the applicant has claimed that he is owed protection in Australia are credible, reliable, corroborated by evidence or supported by country information.

8. It follows that the Tribunal is not satisfied that he is of any interest to anyone in Vietnam for the reasons that he has claimed. It does not accept that he ever been politically active in Australia or Vietnam or that he has an anti-government profile. It is not accepted that \he will have problems because he has a criminal record in Australia or because he has lived in a western country or made unsuccessful claims for asylum. The Tribunal is also not satisfied that the applicant will be subject to significant harm if he experiences any corruption in the future in Vietnam, or for any other reason.

9. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vietnam, there is a real risk the applicant will suffer significant harm.

10. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

11. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

    decision

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

    Penelope Hunter
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …