2213692 (Refugee)

[2023] AATA 777

2213692 (Refugee) [2023] AATA 777 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Manh Van Nguyen

CASE NUMBER:  2213692

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Peter Katsambanis

DATE:4 January 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam (being the receiving country), there is a real risk that the applicant will suffer significant harm.

Statement made on 04 January 2023 at 9:39am

CATCHWORDS

REFUGEE – Protection Visa – Stateless – applicant does not have a nationality – complementary protection – no work rights, no residence rights, no health rights, no social security rights in Vietnam – family’s long-standing opposition to the Communist government in Vietnam – former nation no longer exists – there is a real risk that the applicant will suffer significant harm – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 91, 189, 501, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

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 30 April 2020 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 stateless, applied for the visa on 20 December 2019.  

3. The delegate refused to grant the visa on 30 April 2020 on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

4. The Tribunal, differently constituted, affirmed the delegate’s decision on 9 September 2020. That decision was subsequently affirmed by the Federal Circuit Court on [date] March 2021. However, the Tribunal’s decision was set aside by the Federal Court on[date] August 2022[1]. The matter is now before the Tribunal pursuant to an order of the Court.

   [1] [deleted]

5. The applicant appeared before the Tribunal on 16 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by an Australian legal practitioner and by Mr Lorenzo Boccabella of Counsel. The representative and Counsel attended the Tribunal hearing.

7. For clarity and convenience, the Tribunal will refer to the hearing held on 16 December 2022 as ‘the hearing’. Any reference to the hearing held when the matter was previously constituted (before the order of the Federal Court) will be referred to as ‘the previous hearing’.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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

14. The applicant has listed his date of birth as [date] and his place of birth as Nha Trang. At the hearing, the applicant clarified that he had no documentary evidence related to his birth or the recording of his birth but that when he was a young child his older brother had effectively made a ‘best guess’ as to the applicant’s date of birth when they were in a refugee camp in [Country 1], this date had been used on his refugee documentation and the applicant had used this date of birth for all his official records from that time onwards.

15. Relevantly, at the time of the applicant’s birth around [year], Nha Trang was part of the former Republic of Vietnam (South Vietnam) but was later subsumed into the Socialist Republic of Vietnam (Vietnam) at the conclusion of what is known as the Vietnam War.

16. The applicant claims that he lived in Vietnam from the conclusion of the war until he departed illegally by boat with his older brother ([Mr A]) and other people in 1983, when he was around [age] years old. The boat was intercepted or rescued by [Country 1] fishermen and the applicant was taken to a refugee camp in [Country 1] which, according to the applicant’s claims at the hearing, was operated by the United Nations or UNICEF.

17. The applicant arrived in Australia on [date] January 1986 as a refugee and as the holder of a Special Humanitarian Program (Vietnamese) K4011 visa. As the applicant outlined at the hearing, he initially lived at [a place] upon arrival in Australia. He completed high school and also partially completed a TAFE course in Melbourne. He subsequently worked in factories and on farms as a labourer in both Melbourne and Brisbane.

18. The applicant applied for Australian citizenship in August 1993. There are no documentary records to indicate the reasons why this application was refused. There are some statements on file that indicate the application was refused because the applicant did not supply the requisite documents. However, at the hearing, the applicant stated that when he attended the counter of the Department to lodge his application, he was told that his application could not be accepted at that time because he had an outstanding court case.

19. On 27 January 1994 the applicant was issued with a Resident Return (BF155) visa. He travelled on an Australian travel document bearing this visa to Vietnam in 1994. The Resident Return visa was renewed in 1998. He travelled on this renewed visa between Australia and Vietnam on four subsequent occasions between 1998 and 2001.

20. On [date] May 2004 the applicant was convicted and sentenced in the Supreme Court of Queensland in relation to serious criminal offences. The offences related to an incident in 2001 where a man was shot and rendered a paraplegic. The applicant was convicted and sentences for the following offences:

    ·Attempted murder – 14 years imprisonment

    ·Grievous Bodily Harm – 6 years and 6 months imprisonment

    ·Wounding and similar acts – 2 years and 6 months imprisonment

21. These sentences were to be served concurrently[2].

    [2] A copy of the sentencing remarks [is] located on the Department’s file

22. In August 2013 the applicant was issued with a Notice of Intention to Consider Cancellation of his Resident Return visa on character grounds. The visa was subsequently cancelled on 11 September 2014.

23. On [date] September 2015 the Federal Court found that the Minister fell into jurisdictional error by failing to consider a relevant consideration, being the legal consequences of the decision to cancel the applicant’s visa in circumstances where the applicant claims to be stateless[3].

    [3] [deleted]

24. On 22 September 2015 the Minister personally cancelled the applicant’s visa pursuant to s 501(3A) of the Act.

25. After completing his term of imprisonment, the applicant has been held in immigration detention pursuant to s 189(1) of the Act since 26 October 2015.

    FINDINGS OF THE FEDERAL COURT

26. In its decision on 9 September 2020, the Tribunal (differently constituted) found that the applicant was not stateless but that he was a Vietnamese national. In making this finding, the Tribunal placed some considerable reliance on the Law on Vietnamese Nationality, and specifically to Article 15 of this law.

27. In his judgement of [date] August 2022, [Mr B] made the following comments in relation to the Tribunal’s consideration of Article 15:

    … it was not open for the Tribunal to reason in the way it did to conclude solely by reference to Article 15 and matters which occurred years after the appellant’s birth, that the appellant was a citizen of the Socialist Republic of Vietnam and therefore not stateless, without directing attention to and considering the words “at the time of his/her birth” in Article 15, and their effect on the analysis in which the Tribunal engaged. Rational decision-making required that the effect of these words be addressed. The error was central to the Tribunal’s subsequent assessment of the issues, which was premised on the appellant’s valid citizenship.

    …

    I wish to be clear that I do not find that the Tribunal was bound to hold that the appellant was stateless, whether by reference to Article 15 itself, or in combination with other circumstantial facts. The error I have identified is a specific error and goes only to the Tribunal’s process of reasoning and its failure to address the words “at the time of his/her birth” in Article 15[4].

    [4] [deleted] at para 42

28. These comments informed the findings of [Mr B] that the Tribunal had fallen into jurisdictional error and the order to quash the Tribunal’s decision of 9 September 2020.

    CONSIDERATION OF Claims and evidence

29. There are two distinct issues for the Tribunal to determine in this case.

30. The first issue is whether the applicant is stateless or alternatively whether he is a national of Vietnam.

31. The second, and subsequent, issue in this case is whether there is a real chance that if the applicant returns to Vietnam he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

32. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Summary of claims

33. The applicant has claimed that he is stateless. The basis of this claim will be considered in detail below.

34. On the basis that the applicant is stateless, the applicant’s counsel has argued in submissions dated 15 December 2022 and 20 December 2022, and at the Tribunal hearing, that the applicant is seeking complementary protection pursuant to s 36(2)(aa) of the Act because as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that he would suffer significant harm on the basis that he would have no work rights, no residence rights, no health rights, no social security rights and no other similar rights in Vietnam. The representative has also argued that the applicant past criminal history in Australia, in particular his conviction for attempted murder, and his family’s known past anti-communist views would be used against him by Vietnamese authorities.

35. In the alternative, if the applicant is found to be a national of Vietnam, the applicant’s counsel has argued that the applicant would face a real chance of serious harm if he returned to Vietnam now or in the reasonably foreseeable future for reasons of:

    ·his family’s long-standing opposition to the Communist government in Vietnam

    ·his own opposition to the Communist government in Vietnam

    ·his profile as a person who has participated in anti-Vietnamese government protests and political activity in Australia

    ·the higher profile involvement of the applicant’s brother, [Mr A], in anti-Vietnamese government activities in Australia and the brother’s potential membership of Viet Tan (also known as the Vietnam Reform Party)

    ·his illegal departure from Vietnam and because he was subsequently granted refugee status in Australia

    ·he will be returning to Vietnam as a failed asylum seeker in Australia (if his current claims fail)

    ·his past criminal convictions in Australia

36. For completeness, the Tribunal notes that both in his submission on 15 December 2022 and at the hearing, the applicant’s Counsel suggested that although the applicant sincerely and subjectively holds these refugee-based fears of harm if he was to return to Vietnam (particularly given that the applicant has not resided in Vietnam since he was [age] years old), on an objective basis these fears may not necessarily be well-founded.

    Is the applicant stateless or a national of Vietnam?

37. For clarity, the Tribunal will continue to use the terms ‘Vietnam’ or ‘Socialist Republic of Vietnam’ (depending on context) to describe the current Socialist Republic of Vietnam. It will refer to the two partitioned nations that existed between 1956 and the fall of Saigon in 1975 respectively as the Democratic Republic of Vietnam (DRV), which controlled the north of the country, and as the Republic of Vietnam (ROV), which controlled the south of the country. When referring to the entire land mass of Vietnam, the Tribunal will use the terms ‘Vietnam’ or ‘Vietnamese territory’, depending on the context.

38. Section 36(6) of the Act provides that the question of whether a person is a national of a particular country must be determined solely by reference to the law of that country. Given that the applicant was born in what is now the modern-day nation of Vietnam, the Tribunal must therefore assess whether the applicant is a national of Vietnam with reference to the laws on nationality that apply in Vietnam.

39. In this context, and to better understand how the nationality laws in Vietnam apply to the applicant, it is necessary to consider the somewhat turbulent modern political history of Vietnam in the 20^th and 21^st centuries. In doing so, the Tribunal has looked at this history through the lens of the applicant and his parents (which is necessary to determine if nationality through parentage or consanguinity may apply) and through the context of any laws or other pronouncements that may purport to apply the concepts of nationality and citizenship to Vietnamese people throughout this period of time.

40. The applicant’s parents were both born in or around [year] and it has been submitted that they were born in or around the Nha Trang area. Despite no documentation being provided to verify these claims, in the absence of any information to the contrary, the Tribunal accepts that the applicant’s parents were born in or around Nha Trang around [year] as claimed.

41. As the applicant’s counsel has submitted to the Tribunal, at the time of the applicant’s parents’ birth there was no nation of Vietnam or DRV or ROV in existence. The applicant’s parents were residents of what was then known as French Indochina at the time of their birth.

42. In 1945, in the aftermath of World War II, Ho Chi Minh proclaimed an independent Democratic Republic of Vietnam (DRV) which purported to rule over the entirety of Vietnamese territory. This DRV government held elections and drafted a constitution. It also enacted a form of citizenship law known as Decree No 53/SL (Order 53) on Vietnamese Citizenship.[5] Broadly, under this Order, an individual acquired Vietnamese nationality by birth where their father was a Vietnamese citizen, their father was unknown or stateless but their mother was a Vietnamese citizen, or they were born in Vietnamese territory to unknown or stateless parents.[6] 

    [5] Nguyen Thi Ngoc Lam, ‘A History of Vietnam’s Citizenship Law’, Vietnam Law and Legal Forum, 1 July 2009.

    [6] Ibid.

43. Although purporting to govern the entirety of Vietnamese territory, this government led by Ho Chi Minh was heavily opposed by the French colonial forces and many elements of Vietnamese society. By 1948, the French had re-established their control over Saigon and surrounding areas. Although fighting between DRV forces and multiple opponents (including French colonial forces) continued, in 1949 the French colonial forces installed a new government known as the State of Vietnam purporting to cover the entirety of Vietnamese territory, which was headed by Bao Dai, and which remained within the French Union. However, Ho Chi Minh’s DRV government continued to maintain territorial claims and controlled most of the north of the country [7].

    [7] Hammer, Ellen J. “The Bao Dai Experiment.” Pacific Affairs, vol. 23, no. 1, Pacific Affairs, University of British Columbia, 1950, p. 55, >

    The French withdrew from Indochina in May 1954 and an agreement was negotiated in Geneva later that year to provisionally partition the Vietnamese territory along the 17^th parallel, with Ho Chi Minh’s DRV government controlling the north of the territory and what eventually became known as the Republic of Vietnam controlling the south. The agreement provided for elections to be held in 1956 to unify the country, but these elections were never held, and the two partitioned nations continued to operate separately.

44. By 1956 the Republic of Vietnam had developed its own constitution. This document, which was updated in 1967, set out the rights and duties of citizens of the Republic, but did not expressly define who was considered a national or citizen of the Republic.[8]

    [8] Constitution of the Republic of Vietnam, World Statesmen.org, 26 October 1956, 20191025103611; and Constitution of the Republic of Vietnam- April 1, 1967, accessed 1 December 2022.

1. Following the partitioning in 1954, the Vietnamese territory, with its two separate governments, was embroiled in the Second Indochina War (also known as the Vietnam War) which only ended after the fall of Saigon to DRV forces in 1975.

2. After the unification of the north and south in 1976, the unified Socialist Republic of Vietnam was formed.[9] A new Constitution was adopted in 1980 and declared that:

   ‘Citizens of the Socialist Republic of Vietnam are those who bear Vietnamese citizenship as provided for by the law’.[10]

   [9] Nguyen Thi Ngoc Lam, above n 5.

   [10] Nguyen Thi Ngoc Lam, above n 5: Diem, Pham 'Vietnam’s 1980 Constitution', Vietnam Law and Legal Forum, 31 March 2011, 20210416135310

3. The Constitution was amended in 1992 and through this amendment a citizen of the Socialist Republic of Vietnam was defined in Article 50 as ‘a person with Vietnamese nationality’.[11]

   [11] 'Viet Nam: Constitution', Socialist Republic of Vietnam (Government), 15 April 1992.

4. From the authorities consulted by the Tribunal it is unclear what, if any, laws of nationality or citizenship applied in the DRV prior to unification, including whether the decree or order issued in 1945 had any application immediately prior to or at the time of unification.

5. The 1988 ‘Law on Nationality of Vietnam’ (1988 Law on Nationality) contained a statement that purported to expressly repeal and replace all former decrees governing nationality and citizenship once this new law came into force in July 1988.[12]  However, this law did not state which decrees were being repealed or replaced. In addition, the 1988 Law on Nationality did not expressly provide for citizens of the former Republic of Vietnam, and equally nor did it refer to the situation of those in the former Democratic Republic of Vietnam. Relevantly, Article 1 of the new law stated that:

   ‘the Socialist Republic of Vietnam is a unified State of all nationals living on Vietnamese Territory. All members of all ethnic groups hold Vietnamese nationality. Persons holding Vietnamese nationality include those who hold Vietnamese nationality up to the day this Law comes into force and those who will be granted Vietnamese nationality in accordance with the provisions of this Law.’[13]

   [12] 'Article 17, ‘Law on Nationality of Vietnam', 1 August 1988.

   [13] Article 1, Law on Nationality of Vietnam', 1 August 1988.

6. Article 3 of the 1988 Law on Nationality provided for a single nationality of citizens of Vietnam. Chapter 2 provided for the determination of Vietnamese nationality and article 5 stated that a person shall hold Vietnamese nationality in one of the following circumstances: birth; being granted Vietnamese nationality; having Vietnamese nationality restored; holding Vietnamese nationality in accordance with international treaties to which Vietnam is a party; or in other cases provided for by the Law on Nationality.[14]

   [14] Article 5, Law on Nationality of Vietnam', 1 August 1988.

7. Article 6 pertained to the nationality of children and, in part, stated that any child born to parents who are Vietnamese citizens shall hold Vietnamese nationality regardless of whether that child was born inside or outside the territory of Vietnam.[15] Article 6 also stated that any child born on Vietnamese Territory and whose parents are both stateless, but have permanent residence in Vietnam, shall hold Vietnamese nationality.[16]

   [15] Article 6(1) Law on Nationality of Vietnam', 1 August 1988.

   [16] Article 6(4) Law on Nationality of Vietnam', 1 August 1988.

8. Article 7 provided that foreign citizens and stateless persons residing in Vietnam may  be admitted into Vietnamese citizenship if they are 18 years or older, have knowledge of the  Vietnamese language, and have lived in Vietnam for at least five years.[17] These constraints could be waived if there were legitimate reasons to do so.[18] It is open for an individual to relinquish Vietnamese citizenship, but only upon application and if there were legitimate grounds.[19]

   [17] Article 7, Law on Nationality of Vietnam', 1 August 1988; and see Nguyen, Lyma; 'Report on Citizenship Law - Vietnam', Robert Schuman Centre for Advanced Studies, 13 September 2017 at p5.

   [18] Article 7, Law on Nationality of Vietnam', 1 August 1988; and see Nguyen, Lyma, above n 17 at p5.

   [19] Article 9, Law on Nationality of Vietnam', 1 August 1988.

9. The 1988 Law on Nationality was replaced by the Law on Vietnamese Nationality No.07/1998/QH10 (the 1998 Law on Nationality).[20] Commentators have noted that the 1998 Law extended the conditions to be met for an application for Vietnamese citizenship but did not otherwise alter the 1988 Law of Nationality in any substantive way.[21] 

   [20] Nguyen, Lyma and Sperfeldt, Christoph, 'A Boat Without Anchors: A Report on the Legal Status of Ethnic Vietnamese Minority Populations in Cambodia under Domestic and International Laws Governing Nationality', Jesuit Refugee Service, 1 January 2013 at p43; and Restoration of Vietnamese citizenship’, Vietnam Law & Legal Forum, 11 July 2020.

   [21] Nguyen, Lyma, above n 17 at p1.

10. The 1998 Nationality law was replaced by the Law on Vietnamese Nationality No. 24/2008/QH-12 (the 2008 Law on Nationality) which came into effect on 1 July 2009. This law was later revised in 2014. Neither the 1998 Law on Nationality nor the 2008 Law on Nationality expressly deal with or consider the situation of citizens of either the former Republic of Vietnam or the former Democratic Republic of Vietnam.

11. Relevantly to the applicant’s case, Article 15 of the current Law of Nationality of Vietnam, which essentially replicates the provisions of previous laws since 1988, provides as follows:

    A child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese citizenship.[22]

    [22] Article 15, ‘Law on Vietnamese Nationality (No 24/2008/QH12)’,13 November 2008, available at:

12. In Article 3, this law also refers to ‘Overseas Vietnamese’, who are defined to mean Vietnamese citizens and persons of Vietnamese origin who permanently reside in foreign countries.[23] This later term is considered to apply to those who are ethnically Vietnamese but reside abroad permanently either due to migration or being born abroad, and primarily refers to refugees who departed Vietnam throughout the 1980s and now reside in Western countries such as Australia, Canada, France, Germany, and the United States.[24]. It has been noted that the inclusion of these categories in the Law enable a greater scope of persons to access the naturalisation provisions (via restoration), including refugees who left following the war.[25]

    [23] Article 3 ‘Law on Vietnamese Nationality (No 24/2008/QH12)’,13 November 2008, available at: Nguyen, Thanh D, ‘A Citizen by Any Other Name: Postcolonial Cop Out in Section 3, Article XIX of Vietnam’s Law on Nationality’ at p499.

    [25] Nguyen, Lyma above n 17, at p4; Nguyen,Thanh D, above n 24 p499; and Nguyen, Lyma and Sperfeldt, Christoph, above n 20.

13. The 2008 Law on Nationality includes provisions governing the granting, restoration, renunciation, deprivation and annulment of Vietnamese citizenship. This is in contrast with the 1998 Nationality Law, which established the process for filing and processing citizenship applications in general terms, and the 1988 Nationality Law, which did not provide for the processes governing citizenship determination.[26]

    [26] Nguyen, Lyma and Sperfeldt, Christoph, above n 20; and Nguyen, Lyma, above n 17.

14. Pursuant to Article 26 of the 2008 of the Law on Nationality, Vietnamese citizenship may be lost on the grounds of renunciation, deprivation, or by failing to correctly register for the retention of their citizenship.[27] It also states that Vietnamese citizens can lose their nationality by being deprived of Vietnamese citizenship under an international treaty of which Vietnam is a signatory, or under circumstances prescribed by the citizenship law.[28]

    [27] Article 26 ‘Law on Vietnamese Nationality’ (No 24/2008/QH12)’,13 November 2008, available at: Article 16 ‘Law on Vietnamese Nationality’ (No 24/2008/QH12)’,13 November 2008, available at: see also Nguyen, Lyma and Sperfeldt, Christoph, above n 20; and Nguyen, Lyma, above n 17.

15. Article 23 provides for an individual who has lost their nationality, to apply for the restoration of Vietnamese citizenship in specific circumstances.[29]

    [29] Article 23‘Law on Vietnamese Nationality’ (No 24/2008/QH12)’,13 November 2008, available at: see also Nguyen, Lyma and Sperfeldt, Christoph, above n 20; and Nguyen, Lyma, above n 17.

16. The 2008 Law of Nationality was amended in 2014 with the aim of helping overseas Vietnamese to maintain bonds with their families in Vietnam.[30] These amendments expanded upon Articles 13 and 26 of the 2008 Law on Nationality and to do the following:

    ·    clarify that Vietnamese citizens include both those who have attained citizenship status as at the date of the 2008 Law, and those who have naturalised;

    ·    specify that overseas Vietnamese residing abroad who have not lost their Vietnamese citizenship status prior to the enactment of the law, still retain it; and

    ·   make retention of Vietnamese citizenship more flexible for ethnic Vietnamese persons residing abroad, by providing that such persons who have no proof of their Vietnamese citizenship status, should register with Vietnamese embassies abroad to have their Vietnamese citizenship recognised and Vietnamese passports issued.[31]

    [30] 'Amended Law on Vietnamese Nationality passed', VietNamNet Bridge, 24 June 2014.

    [31]'Amended Law on Vietnamese Nationality passed', VietNamNet Bridge, 24 June 2014; Nguyen, Lyma above n 17, at p3.

17. It is accepted that upon the creation of the Republic of Vietnam, after the partition of Vietnamese territory pursuant to the Geneva agreement, that the applicant’s parents became nationals of the Republic of Vietnam by operation of that then-nation’s constitutional provisions that were enacted in 1956 and amended in 1967.

18. Despite the applicant’s lack of documentation to evidence his birth (for reasons pertaining to his escape as a young child from Vietnam), the Tribunal accepts that the applicant was born in Nha Trang, which at the time was part of the Republic of Vietnam, on or around [year]. This is consistent with the determination made by Australian authorities in 1986 to grant the applicant his Special Humanitarian Program (Vietnamese) K4011 visa on the basis that he was born in Nha Trang in [year] as claimed.

19. On the basis that his parents were citizens of the then-Republic of Vietnam at the time of his birth, the Tribunal accepts that the applicant was unequivocally a national or citizen of the then-Republic of Vietnam at the time of his birth. As this nation no longer exists, the applicant cannot be, and is not, currently a national of this former nation and has not been a national of the ROV since the creation of the modern state of Vietnam in 1976.

20. Counsel for the applicant has argued that, based on the findings of [Mr B] in the decision of [date] August 2022, Article 15 of the 2008 Law of Nationality does not apply to the applicant and that therefore the applicant must be considered stateless given that his former nation, being the Republic of Vietnam, no longer exists.

21. The Tribunal does not accept this argument because in paragraph 42 of his judgment [Mr B] made the following clarifying statement:

    I wish to be clear that I do not find that the Tribunal was bound to hold that the appellant was stateless, whether by reference to Article 15 itself, or in combination with other circumstantial facts. The error I have identified is a specific error and goes only to the Tribunal’s process of reasoning and its failure to address the words “at the time of his/her birth” in Article 15.

22. Counsel has also argued that because the applicant was a national of the Republic of Vietnam at the time of his birth in [year], he cannot possibly be deemed to be a national of the modern-day Socialist Republic of Vietnam and he is therefore stateless. The Tribunal does not accept this argument because it is based on the presumption that the authorities of the modern nation of Vietnam have no active role to play in assessing who is a national or citizen of their nation and instead simply passively accept that those people born within the former ROV are not citizens of Vietnam today.

23. The Tribunal believes that the correct question to ask when assessing whether the applicant is a national of Vietnam or is stateless is how the authorities of the modern nation of Vietnam would assess any claim made to them by or on behalf of the applicant that he is a national of their nation with reference to their Constitution, applicable laws at the time of assessment (including the existing 2008 Law on Nationality) and any developed custom and practice when applying these laws.

24. In answering this question, the Tribunal is somewhat constrained. Despite having access to translations of the applicable laws in Vietnam and to various academic and journalistic articles published over time (some of which are referenced in this decision), it does not have access to expert practitioners in the nationality laws of Vietnam or any contemporary commentary on the practical application of such laws in Vietnam on a day-to-day basis.

25. The Tribunal is also cognisant that, as pointed out by Counsel at the hearing, the principles of the Rule of Law and natural justice, as well as the concepts of administrative justice, that have developed over time in a western democratic nation like Australia may not be applied in the same manner (if at all) in a Communist totalitarian regime like Vietnam.

26. What is clear in the applicant’s case is that his parents continued to live within the modern nation of Vietnam after the unification of Vietnam until their respective deaths. Some of his siblings (including some born before unification and others born after unification) have continuously lived in Vietnam. There is no evidence before the Tribunal to indicate that any of these family members have been denied access to any rights or services (including the right to work, access to health care and access to social services) in any way that would indicate that the current government does not consider them to be nationals or citizens of Vietnam. Accordingly, the Tribunal is satisfied that the applicant’s parents and his siblings who live in Vietnam were at some point in time conferred with Vietnamese nationality.

27. What is unclear is when and in what manner the people who were formerly nationals of the ROV prior to unification, including the applicant’s family members who were alive at that time, were conferred with nationality or citizenship of the modern-day nation of Vietnam.

28. The 1980 Constitution only provides for citizenship ‘as provided for by the law’, without further expanding on what that law might have been at the time. As discussed above, the first nationality law of the Socialist Republic of Vietnam was not enacted until 1988, which was after the applicant departed Vietnam. That law does not make any provision at all for people who were formerly living in the old divided ROV and DRV and despite making a reference in Article 1 to ‘those who hold Vietnamese nationality up to the day this Law comes into force’, it does not mention who these people actually are or how they held such nationality prior to this law coming into force.

29. The 1988 law and its successors in 1998 and 2008 contain provisions that clearly have prospective effect from the time that they respectively come into force. However, a reading of the translated version of these laws does not elicit any direct or indirect intent that such provisions be interpreted or applied retrospectively. In the absence of any advice or commentary relating to any custom or practice that has developed around the practical application of such laws on a day-to-day basis in Vietnam, it would be unfair and potentially improper for the Tribunal to impute or imply any retrospective application to these provisions that are, on the plain reading of the translated versions, only couched in prospective terms.

30. As discussed with the applicant and Counsel at the hearing, one construction of the application of Vietnamese nationality law based on the modern history of the country and the various laws that have applied from time to time across the Vietnamese territory is that upon unification and the formation of the modern Socialist Republic of Vietnam in 1976 and upon the subsequent enactment of the first Constitution in 1980, all those people who were deemed to be nationals or citizens of the former divided ROV and DRV were automatically deemed to be nationals of the new unified nation.

31. However, the Tribunal accepts that this construction is not supported by any direct evidence that the authorities of Vietnam have ever taken such a decision, whether through a decree, a pronouncement, an enactment or by any other means. The best evidence that the Tribunal could source to lend weight to this construction or proposition is a statement reportedly read out on local media in 1976 that is referenced in an article from 1982[32] that mentions as follows:

    The most significant policy announcement on the re-education camps was broadcast by Saigon Domestic Service on June 9, 1976. This is the May 25 PRGRSV statement No. 02/CS-76, signed by President Huynh Tan Phat. According to this broadcast, 95% of those “attending reform courses had their cases examined and their citizen’s rights restored” in order that they could vote in the April elections. This figure led some foreign observers to estimate that 50,000 remained in the camps, according to official figures, since the government had said that over one million had been re-educated.   

    [32] Re-education in unliberated Vietnam: Loneliness, suffering and death – by Ginetta Sagan and

32. The Tribunal places some weight on this report because it evidences that people who were released from the euphemistically called ‘reform courses’ (being re-education camps for former soldiers and other supporters of the vanquished ROV[33]) had ‘their citizen’s rights restored’, including the right to vote which is universally regarded as a right flowing from nationality or citizenship. The report also has some further relevance to the applicant’s matter because over time the applicant has claimed that after the unification of Vietnam his father spent some time in a re-education camp before being released back into the community.

    [33] Re-education in unliberated Vietnam: Loneliness, suffering and death – by Ginetta Sagan and

33. However, it is unclear whether a statement reportedly from the President of Vietnam in 1976 would be given any weight by the authorities in Vietnam if the applicant returned there now or in the reasonably foreseeable future. In addition, even if the statement referred to in the article is taken at face value, it does not clarify whether the applicant’s parents were considered to be citizens of the Socialist Republic of Vietnam at the time of the applicant’s birth, as required by Article 15 of the 2008 Law of Nationality.

34. Another possible construction of how the law in Vietnam may apply to the applicant, as discussed with the applicant and Counsel at the hearing, is that the current government of Vietnam would consider itself the modern-day successor of the DRV government formed by Ho Chi Minh in 1945 and would apply or presume a direct lineal connection between the formation of the DRV in 1945, through partition and the Vietnam War, into the creation of the modern Socialist Republic of Vietnam and then through to the present day. In this construction, the current government of Vietnam would consider Order 53 made on the formation of the DRV in 1945 as having applied to the whole of the Vietnamese territory until the 1988 Law of Nationality was enacted and it would further consider that this Order 53 was the existing law that both the 1980 Constitution and the 1988 Law were referencing when they referred to existing laws.

1. At the hearing, Counsel took strong exception to this construction arguing that if Order 53 ever applied to the southern part of Vietnam it would have been extinguished as soon as the French reasserted control of Saigon and established the State of Vietnam in 1949. Further, Counsel argued that such Order 53 would have had no application within the borders of the then-sovereign state of ROV in [year] when the applicant was born.

2. Again, the Tribunal does not accept this argument by Counsel as the correct question to ask is not how an objective bystander would view the application of Order 53 over time. Instead, the correct question is how the authorities in Vietnam today would view the application of Order 53 within the law of Vietnam over time, including its application in [year] and today.

3. Where the Tribunal does agree with Counsel is that there is no definitive authority, or any direct evidence, before the Tribunal to suggest that this construction of the application of Order 53 has ever been applied in this way in Vietnam since unification or that it would be applied in the way described above by the authorities in Vietnam today. Therefore, in the absence of any such information, it would be merely speculative to conclude that Order 53 would be considered to apply in this way by the authorities in Vietnam today and any such conclusion would not be based on the evidence before the Tribunal.

4. The Tribunal is also cognisant that the authorities in Vietnam would be aware of the applicant’s past serious criminal history in Australia, particularly given the evidence on file that the applicant’s legal representative wrote to the Vietnamese Embassy outlining the applicant’s criminal history and seeking advice from the Embassy (there is no information before the Tribunal to suggest that such advice was ever provided by the Embassy) as to whether the applicant is entitled to Vietnamese nationality.

5. In any assessment of whether the applicant has a well-founded fear of persecution for the purposes of s 36(2)(a) of the Act, the Tribunal would consider such conduct of the legal representative in the context of s 5J(6) of the Act. However, s 5J(6) has no application in determining the nationality of the applicant. Accordingly, the Tribunal accepts that when assessing any possible application by the applicant to establish or assert Vietnamese nationality that the Vietnamese authorities would have knowledge of the applicant’s past serious criminal history in Australia and that these authorities may take a negative rather than positive disposition towards the applicant because of his past serious criminal history in Australia. The Tribunal considers that the potential of such negative disposition from the authorities towards the applicant is highly relevant in the context of a nation like Vietnam where the principles of the Rule of Law and administrative justice may not be applied in the same way as they are in Australia, if at all.

6. The Tribunal accepts that the applicant did attend school when he was living in Vietnam prior to his departure as a [age]-year-old in [year]. However, in the context of the upheaval in Vietnam following the end of the Vietnam War and the subsequent unification of the country, the Tribunal is not satisfied that attendance at school during that period of time, of itself, is evidence that the applicant was officially registered with Vietnamese authorities, that he was recorded on his family’s household registration at the time or that his family even had official household registration at that time. In this regard, the Tribunal notes that at the hearing the applicant made it clear that he did not really know his actual date of birth, he had no official record of his birth and was unsure whether his birth had ever been officially recorded in either the ROV or the current nation of Vietnam. Counsel added that it was also unclear whether any records of the birth, if they had ever been made or created, had survived the fall of ‘the south’ and the massive societal upheaval that followed.

7. The Tribunal also notes that the applicant returned to Vietnam on a number of occasions between 1994 and 2001. However, the Tribunal accepts the applicant’s consistent claims over time that on each of these occasions the applicant travelled to Vietnam on an official Australian travel document bearing his valid Australian Resident Return visa and that on each occasion he was required to obtain a visitor visa from the Vietnamese authorities in order to enter and remain in Vietnam on a temporary basis. The Tribunal also accepts that on each of these visits the applicant behaved like any other tourist or temporary visitor and did not assert or purport to exercise any right pertaining to Vietnamese citizenship or nationality. Accordingly, the Tribunal accepts that these brief visits do not in any way evidence that the applicant was considered by local authorities to be, or that he asserted to be, a national or citizen of Vietnam.

8. The Tribunal accepts that the applicant’s parents were conferred the rights of nationality and citizenship in Vietnam at some time after unification in 1976. However, on the evidence before it, the Tribunal is not satisfied that the applicant’s parents would be considered to have been citizens of the Socialist Republic of Vietnam in [year] by the authorities in modern-day Vietnam if the applicant applied to these authorities to assert that he was a citizen of Vietnam pursuant to Article 15 of the 2008 Law of Nationality.

9. Accordingly, on the evidence before it,  the Tribunal is not satisfied that the authorities in Vietnam would accept that the applicant was a citizen of Vietnam at the time of his birth pursuant to Article 15 of the 2008 Law of Nationality.

10. If the applicant cannot meet the requirements of Article 15 then the other provisions of the 2008 Law of Nationality that facilitate Overseas Vietnamese to re-establish Vietnamese citizenship, such as Article 13 which allows people to register their citizenship and Articles 23 and 26 which provide a pathway to restore citizenship that has been lost or revoked, cannot apply to the applicant as the provisions rely on the existence of such citizenship in the first place in order for these provisions to have any application or effect.

11. Accordingly, based on the evidence before it, the Tribunal is not satisfied that the applicant is a national or citizen of Vietnam by reference to the law of Vietnam.

12. The applicant travelled to Australia through [Country 1] where he arrived as an undocumented minor and where he lived in a refugee camp for around 3 years before being accepted by Australia as a refugee. However, the Tribunal accepts that the applicant was only in [Country 1] on a transitory basis and that he has no claims to be a national of [Country 1]. There is also no evidence before the Tribunal to indicate that the applicant has any existing or ongoing right to enter or reside in [Country 1].

13. Therefore, based on the evidence before it, the Tribunal accepts that the applicant does not have a nationality and is stateless and has assessed his claims accordingly.

14. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act. 

    Country of former habitual residence and receiving country

15. Given that the Tribunal has found that the applicant is stateless, it must assess his claims for protection against his country of former habitual residence.

16. The applicant was born on Vietnamese territory in what is now the Socialist Republic of Vietnam. He lived on Vietnamese territory for the first [number] years of his life before spending three years as an undocumented minor in a refugee camp in [Country 1]. He then came to Australia in 1986 as a refugee and has been resident in Australia since that time.

17. As discussed above, the applicant was only in [Country 1] on a transitory basis, lived in a refugee camp and has no right to enter or reside in [Country 1].

18. Based on the evidence before it, the Tribunal finds that Vietnam is the applicant’s country of former habitual residence for the purposes of s 5H(1)(b) of the Act and accordingly also finds that Vietnam is the receiving country for the purposes of s 36(2)(aa) of the Act.

    Assessment of claims for protection

19. Counsel for the applicant has submitted that as a stateless person, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm pursuant to s 36(2)(aa) of the Act.

20. As the Tribunal has found that the applicant is stateless and that his country of former habitual residence (and therefore the receiving country) is Vietnam, and given the submissions made by Counsel requesting consideration of the applicant’s claims under s 36(2)(aa), the Tribunal has proceeded to assess the claims made on behalf of the applicant pursuant to s 36(2)(aa) without making any assessment of any claims pursuant to s 36(2)(a) of the Act.

100.   The applicant has claimed that if he returned to Vietnam as a stateless person, he would be denied the lawful rights of nationals or citizens of Vietnam, including residency rights, work rights, access to health care and access to social security. It has been submitted on behalf of the applicant that this would amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment and would therefore amount to significant harm as defined by s 36(2A). It has been further submitted that the applicant’s profile as a person with a serious criminal record in Australia and his profile as hailing from a family with a known anti-Communist profile in the past in Vietnam would increase the risk that his rights would be denied in this way.

1. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

102.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

103.   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 imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act[34].

[34] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].

104.   There are no claims made on behalf of the applicant and there is no other information before the Tribunal to suggest that the applicant will be arbitrarily deprived of his life, or that he will be subjected to the death penalty or that he will be subjected to torture if he was returned to Vietnam.

1. ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[35]

   [35] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]

106.   However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

1. The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[36]

   [36] Ibid.

108.   However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

109.   Information from the United States Department of State indicates that stateless persons do currently live in Vietnam:

According to 2020 statistics from UNHCR, there were 32,890 recognized stateless persons and persons of undetermined nationality in the country. This was a substantial increase from the estimated 11,000 stateless persons acknowledged in 2016, reflecting increased government efforts to identify such persons. The bulk of this population were ethnic H’mong living in border areas, but it also included a number of women who lost their citizenship after marrying a foreigner but then lost their foreign citizenship, primarily because of divorce.

In March a diplomat reported local authorities in Subdivision 179, Dam Rong District, Lam Dong Province continued to refuse to issue identity and household residency documents to members of the H’mong Christian community living in the area. Without identity documents and residency cards, the residents could not access public health care or educational resources and faced challenges securing legal employment. Local authorities would only issue identity and residency documents to families that agreed to purchase a home in areas zoned for residency outside the “forest land,” which includes Subdivision 179.[37]

[37] United States Department of State, 2021 Country Reports on Human Rights Practices: Vietnam, issued on 12 April 2022.

110.   However, this information indicates that the vast majority of these stateless persons have been living in Vietnam for some time, rather than returning to Vietnam from overseas. The information also indicates that despite having lived in Vietnam for some time, these stateless persons are often denied household registration which then precludes them from being able to access basic services such as public health care and education or to secure legal employment.

111.   The Department of Foreign Affairs and Trade reports that citizens of Vietnam are required to have a Citizen Identity Card[38] that is linked to a national database that also records a person’s household registration details[39] (in place of the formerly issued physical household registration books).

[38] Department of Foreign Affairs and Trade, Country Information Report Vietnam, 11 January 2022, para 5.39.

[39] Ibid, para 5.40.

112.   Country information from a variety of sources highlights that the household registration system is a key feature of Vietnamese society and further highlights that permanent household registration is a prerequisite to accessing key services in Vietnam. The Department of Foreign Affairs and Trade reports in some detail in relation to this household registration system:

Residents’ homes need to be registered with a document known as a hộ khẩu, or household registration book. In practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. With urbanisation have come slums, particularly in large cities, as former rural residents have moved in search of work. DFAT is not aware of other cases where registration is refused; such refusal is unlikely.

There are two categories of registration (reduced from four under the previous law): temporary and permanent. Household registration requires citizens to register their permanent residence in only one district in Vietnam. To gain permanent residence status in a new district, citizens must either marry into a family already holding permanent residence, purchase land, or live in rental housing with an official lease and a minimum amount of liveable space. 

Large cities such as Hanoi and Ho Chi Minh City have previously enacted local legislation to prevent relocation. These regulations may change rapidly. For example, DFAT’s December 2019 Country Information Report reported that restrictions were in place in Hanoi to prevent rural-urban transmigration based on infrastructure and overcrowding concerns. Those restrictions were removed in 2020.

In practice, internal migrants might be entitled to basic social services when they relocate to big cities like HCMC and Hanoi, but local authorities may not apply these policies consistently. Those who own a house or an apartment will have an easier time registering in one of those two cities. Those who attempt to relocate may experience bureaucratic difficulties, but DFAT understands that relocation is not impossible.

Without a local registration, access to services such as public education and healthcare becomes difficult; a local registration is required to access government services. A child cannot be registered without household registration documents and an identity card. It is possible to re-register in a new locale after moving, but this process can be lengthy and difficult, which deters some people. According to a 2019 fact-finding mission report by the UK Home Office, household registration is not a barrier to relocation; whereas previously major purchases such as a car required a local registration, these kinds of barriers have been removed over time. Still, registration would be required to sign up for utilities or internet service or obtain insurance.

Internal relocation and re-registration in a new residence is possible, but bureaucratic difficulties may arise for certain people. For example, women whose husbands die may have difficulty getting cooperation from their in-laws, or recently released prisoners might be refused registration by police who do not want ‘troublemakers’ in their district.[40] 

[40] Department of Foreign Affairs and Trade, Country Information Report Vietnam, 11 January 2022, paras 5.19 – 5.24.

113.   The United States Department of State discusses the registration rules that apply to both citizens and foreigners when they are staying anywhere in private accommodation outside their own homes:

Citizens (or their hosts) must register with local police when staying overnight in any location outside their own homes. Foreign passport holders must also register to stay in private homes, although there were no known cases of local authorities refusing to allow foreign visitors to stay with friends or family.

Religious leaders were required to specify geographic areas where they were active. Some reported that authorities told them that preaching outside the approved areas was illegal, although enforcement was inconsistent.[41]

[41] United States Department of State, 2021 Country Reports on Human Rights Practices: Vietnam, issued on 12 April 2022.

114.   The country information referred to above makes it clear that a Citizen Identity Card and permanent household registration are only available to citizens of Vietnam, which the applicant is not. The information also makes it clear that unless a person has permanent household registration in a particular region, they are likely to be denied access to basic services in such region. The information from the United States Department of State referred to above in relation to stateless persons highlights that without household registration, it is difficult to secure legal employment in Vietnam.

115.   The Tribunal accepts that based on the country information referred to above that having permanent household registration is a condition precedent to accessing basic services such as public health care and education in Vietnam and is also a condition precedent to securing legal employment.

116.   In the applicant’s case, he is stateless and therefore a non-citizen of Vietnam. He would not be entitled to obtain a Citizen Identity Card in Vietnam and as a non-citizen he would not be entitled to permanent household registration. If he stayed in a private home anywhere in Vietnam (such as with his family members) he would need to register as a temporary resident with local police, which he has indicated in his evidence over time that he had to do on previous visits to Vietnam. However, there is no information before the Tribunal that this would be create a pathway for him, as a non-citizen, to obtain permanent household registration in future and in any event the act of temporary registration itself would alert local authorities to the fact that he is a non-citizen of Vietnam and not a permanent resident in the region where he may be registered as a temporary resident.

117.   On this basis, the Tribunal accepts that if the applicant returned to Vietnam as a stateless person, he would not be able to access legal employment or any welfare benefits in Vietnam. If he became ill, he would not be entitled to access public health care. In short, he would be condemned to living on the fringes of society relying on the goodwill of others and perhaps the opportunity to access some employment in the informal economy. Credible reports from the United States Department of State (which cites information from the International Labour Organisation) discuss the treatment of such informal workers in Vietnam as follows:

‘informal workers typically had low and irregular incomes, endured long working hours, and lacked protection by labor market institutions’.[42]

[42] United States Department of State, 2021 Country Reports on Human Rights Practices: Vietnam, issued on 12 April 2022.

118.   The Tribunal considers that a person being forced to live on the fringes of society in the way described above without access to legal employment or basic services, including public health services, constitutes suffering that is cruel and inhuman in nature, and in the case of the applicant, this suffering would be intentionally inflicted on the applicant by the authorities of the Socialist Republic of Vietnam because of his personal status as a stateless person. Accordingly, it is therefore cruel and inhuman treatment or punishment as defined by s 5(1). There is no indication that such treatment or punishment is as a result of an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Therefore, the cruel and inhuman treatment or punishment that the applicant will be subjected to if he was returned to Vietnam meets the definition of significant harm for the purposes of s 36(2A).

119.   In the applicant’s case, the country information makes it clear that the risk of the applicant suffering this significant harm if he was returned to Vietnam is not remote. In fact, on the information referred to above and on the basis that the applicant is stateless, the risk that he would suffer this significant harm on return to Vietnam is at least highly likely, if not inevitable. Accordingly, the risk being more than remote, it meets the definition of real risk for the purposes of s 36(2)(aa).

120.   The real risk of significant harm that the applicant faces is prevalent in all parts of Vietnam so relocation within Vietnam is not an option. Accordingly, s 36(2B)(a) does not apply to the applicant.

121.   As the significant harm is being carried out by the authorities of Vietnam, the applicant would not be able to seek the type of protection from these authorities envisaged by s 36(2B)(b).

122.   The real risk faced by the applicant is one faced by him personally because of his status as a stateless person and is not a risk faced by the population of Vietnam generally. Accordingly, s 36(2B)(c) does not apply to the applicant.

123.   Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm.

Application of Section 36(2C) of the Act

1. 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, the applicant 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).

125.   The Tribunal has found that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam (being the receiving country), there is a real risk that the applicant will suffer significant harm.

126.   The Tribunal notes that the material before it may give rise to issues relating to s 36(2C) of the Act. In particular, the Tribunal notes that the applicant was convicted of attempted murder, grievous bodily harm and wounding and similar acts in the Supreme Court of Queensland on [date] May 2004 and was sentenced to a concurrent term of imprisonment of 14 years.

1. 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 consider s 36(2C) issues. Accordingly, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is ineligible for the grant of a protection visa pursuant to s 36(2C).

   DECISION

128.   The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam (being the receiving country), there is a real risk that the applicant will suffer significant harm.

Peter Katsambanis
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.

…

Stephen Denney [1982]

Stephen Denney [1982]