2407191 (Refugee)

[2024] ARTA 686

2407191 (REFUGEE) [2024] ARTA 686 (18 NOVEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Tribunal Number:  2407191

Tribunal:General Member R Timms

Date:18 November 2024

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

Statement made on 18 November 2024 at 10:35 am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion and political opinion – participated in protest against appropriation of church land – summoned, threatened and monitored – environmental disaster affected mother’s business – mother intimidated after applicant’s social media activity – delay in applying for protection – applied after student visa cancelled – no political membership in home country and anti-government views formed in Australia – no past harm claimed in application and unfavourable inference drawn for late claims – allowed to complete education and travel – application made with wife and child – now divorced with separate review application – separation from son not for refugee criteria reason or amount to significant harm – returned failed asylum seeker and capacity to subsist – work skills and experience – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2), (4)(b), 65, 367A, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
EZC18 v MHA [2019] FCA 2143
Guo Wei Rong v MIEA (1996) 64 FCR 151; 40 ALD 445

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF 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 18 July 2018 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 national of Vietnam, applied for the visa on 22 May 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

3.    While the applicant’s original protection visa application was made together with applications by the applicant’s wife and child, the applicant and his wife have since divorced, and the Tribunal is now reviewing this review application by the applicant separately from his wife and child’s applications. 

4.    The applicant appeared before the Tribunal at hearing held on the dates of 6 June 2024 and 29 July 2024, to give evidence and present arguments in relation to his own review application.  At hearing, the Tribunal also received oral evidence from [Mr A] and [Mr B], who both appeared as witnesses for the applicant.  The Tribunal hearing was conducted with the assistance of interpreters in the Vietnamese and English languages.

5.    On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

Evidence before the Department

6.    The Tribunal has before it Departmental file [Reference], which contains a number of file items including but not limited to the following:

·     Protection visa application form.

·     Supporting documents.

Evidence before the Tribunal

7.    The Tribunal also has before it the online Tribunal file (Tribunal case reference 2407191) which contains a number of file items including but not limited to the following:

·     Review application form.

·     The delegate’s decision.

·     The hearing recordings.

BACKGROUND

The applicant’s personal background

8.    The applicant is a [Age]-year-old male who was born and raised in Ha Tinh province in Vietnam.  He is of Kinh ethnicity and he always lived in Vietnam up until his arrival in Australia in April 2013.

9.    The applicant is one of [number] siblings, with [number] of his siblings currently living in Vietnam, and his other sibling currently living in [Country]. His mother, now aged in her early [decade], is living in Ha Tinh province in the family home where she has lived for many years, while his father passed away in 2008.  The applicant’s mother has been a businesswoman, and his father was [an occupation 1], and the applicant assesses that his family has been a middle-income family.

10.    The applicant completed primary and secondary schooling in Ha Tinh province, before then moving to Hanoi in around [Year] where the applicant completed and graduated with a [subject] diploma qualification in Hanoi in 2011.  He then worked full-time in the [work sector] from 2012 until his departure for Australia in April 2013.

11.    The applicant’s Vietnamese passport was issued [in] 2012, and on 9 April 2013 he was granted a subclass 573 Higher Education Student visa for studies in Australia.  He arrived in Australia on that visa [in] April 2013.

12.    On 23 May 2016, the applicant’s student visa was cancelled.

13.    On [Date], the applicant married a Vietnamese national in Australia, and on [Date] the applicant and his wife had a child together in Australia who is now aged [Age] years old. 

14.    On 22 May 2018, the applicant applied for Australia’s protection together with his wife and child, and they were assisted in the preparation and lodgement of their protection visa applications by a Vietnamese-speaking registered migration agent. As part of that assistance, the applicant had communicated directly himself with the agent in the Vietnamese language.  The agent had asked him to write down his reasons why he needed Australia’s protection and why he is a refugee, and he had then written down this requested information for the agent who had then completed and prepared his and his family’s applications upon their behalf. He did not however review the application before it was submitted, and he did not know what was written in the application.  Also, the avenue for subsequent communication with the agent had been through his wife, and he did not himself afterwards receive any further news about his application from the agent including any news about the refusal of his protection visa application by the Department of Home Affairs, or about lodgement of his review application to this Tribunal. 

15.    More recently, the applicant and his wife have divorced.  

16.    The applicant is currently working as a self-employed [occupation 2], and he has been working in the [work sector] in Australia since soon after his arrival in Australia in April 2013, including working in [occupation 2] since 2015.

17.    The Tribunal accepts the above matters to be true.

CONSIDERATION OF CLAIMS AND EVIDENCE

Criteria for protection visa

18.    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.

19.    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

1. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

2. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

3. 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.

Section 5AAA of the Act

23. Pursuant to s 5AAA of the Migration Act, it is for the review applicant to specify all 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 the applicant in specifying, any particulars of the claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.

24.    The Tribunal has applied this provision when considering the applicant's claims and evidence.

Mandatory considerations

25.    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.

REASONS AND FINDINGS

26.    The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or instead under the ‘complementary protection’ criterion, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.

27.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Country of nationality

28.    The applicant arrived in Australia on a Vietnamese passport, a copy of which is contained on the departmental file. He has at all times stated that he is a citizen of Vietnam and has been assessed on that basis by the Department. At hearing, the applicant also confirmed that he holds Vietnamese citizenship, and only Vietnamese citizenship.

29.    The Tribunal finds that the applicant is a Vietnamese citizen, and the Tribunal has assessed his claims against Vietnam as the country of nationality and the receiving country.

The applicant’s claims for protection

30.    In his protection visa application, in relation to his reasons for claiming Australia’s protection, the applicant claimed as follows:

·     he departed Vietnam in order to study in Australia and obtain Australian qualifications.

·     he did not experience harm in Vietnam. 

·     he had not formed his political views regarding the government of Vietnam while he was still in Vietnam.

·     if he returns to Vietnam, he thinks he will be imprisoned and tortured and subjected to cruel and inhuman treatment and punishment. He will be harmed and mistreated because of his anti-government beliefs and his criticism of the Vietnamese government.  Since coming to Australia, he has come to recognise the wrongdoings of the Vietnamese government which has poorly performed and mishandled things on many occasions, including:

o   the 2016 Formosa marine life disaster which affected many lives around the area.  There were many protests and marches in relation to the Formosa disaster organised by the Catholic Church which the Vietnamese government violently put down. 

o   the Paracel and Spratly islands being invaded, but the Vietnamese government have done nothing, and the locals who speak up on this are severely punished.

o   the Vietnamese blogger Me Nam, who was sentenced to 10 years prison, for discussing land confiscations, freedom of expression for the people, and police brutality in Vietnam.

o   he is Catholic, and a new law which restricts the work of missionaries was passed by the Vietnamese government which considers the Catholic faith as reactionary, and as an instigator and agitator. The Vietnamese government has used violence to repress the Catholic people, despite the constitutional right of freedom of religion. Many Catholic priests are also condemned for their actions by the government as instigators and as being anti-regime.

o   he will not be protected in Vietnam because the Vietnamese government actively imprisons and arrests those that do not follow their beliefs and ideology. They do not tolerate any criticism or protests directed at them. Freedom of speech and religion does not exist under the Vietnamese government. It continues to pressure, monitor and threaten any group, individual or organisation which speaks out or criticises the Vietnamese government’s rules and authority.  People are beaten terribly by the Vietnamese government, and even put in gaol for a long period of time without a proper trial and without clear criminal charges.

31.    The decision maker (‘the delegate’) at the Department of Home Affairs refused to grant the applicant a protection visa, not being satisfied that there was a real chance that the applicant would face serious harm.   The delegate also considered the applicant’s claims under the complementary protection criteria but was not satisfied that there was a real risk that the applicant would suffer significant harm.

Other documentary evidence provided by the applicant at hearing

32.    On 20 May 2024, the applicant provided the Tribunal with the following further items in support of his review application: 

·     three Vietnamese police summonses addressed to the applicant, dated 19 September 2008, 26 September 2008 and 8 October 2008.

·     27 photographs of people protesting in Vietnam, including photographs of a bloodied protestor, and a protestor being arrested. 

·     a support letter for the applicant from [the Reverend C], a Catholic Priest associated with [Catholic Church] in [Suburb] in Melbourne. In that letter, [Reverend C] states he is quite sure that the applicant is eligible for a protection visa, and he further states that the applicant will face serious harm if he returns to Vietnam.

·     an Australian certificate III in [occupation 2 tasks] for the applicant, including also his successful statement of results, as well as a document confirming the applicant’s unique Australian student identifier.

·     Australian business and taxation documents relating to the applicant, including evidence of registration of an Australian business belonging to the applicant called [Company name], as well as Australian Tax Office correspondence with the applicant.

Oral evidence provided by the applicant

33.    At hearing before the Tribunal, the applicant gave further evidence about his claims for Australia’s protection which the Tribunal relevantly summarises as follows: 

·     he is Catholic, and he was born into a Catholic family in Vietnam.

·     in 2008, while he was studying his diploma course in Hanoi, he had received a police summons, which had later meant that he was unable to secure a government job and that he could only work in the private sector.

·     the police summons which he had received was because of his 2008 involvement in protests in [Location] in Hanoi, over Catholic church land which was being compulsorily appropriated by the government.  In response to this government land appropriation, which he had considered to be unreasonable, and as a student who was religious, he had joined a Catholic religious protest group which protested against incorrect actions by authorities and which was protesting against this [Location] land appropriation, and he had then protested in rallies with that group regularly over a period of a few months. 

·     the police summons he received required him to attend a police office in his hometown area, but he had felt too scared to attend the police office because he thought he might be arrested.  He then received a second summons, and then a third summons, before he finally attended the police office. At the police office, he was intimidated and threatened by the police who warned him that if he continued to protest he would not be allowed to graduate from his [subject] diploma course, and he would also be arrested and gaoled.  Some student members of the religious protest group had already not been allowed to graduate, and the police threatened that he would suffer the same fate as those other students if he continued to protest.

·     the police had delivered all three of his summonses through his mother, and at the same time they had also threatened her that he would be arrested if he continued to join the protests. They also visited his mother sometime after the applicant had attended the police station, and they further threatened her about him being arrested. 

·     after he had attended the police station in his hometown in response to the summonses, he was then monitored by the police wherever he went.

o   the Tribunal asked the applicant how he knew that he was being monitored wherever he went.  He responded by stating that he knew this because the police had sent a notification to his college and to his home threatening that he would not be able to graduate if he continued his protesting.  

o   the Tribunal further asked the applicant whether anything else had happened to him in Vietnam apart from his involvement in the protest and the summons.  The applicant answered that nothing else had happened to him.

·     he had come to Australia to look for freedom because he was suffering from suppression and oppression in Vietnam, and because he had participated in religious activities resulting in him having been summonsed by the police.

o   the Tribunal discussed with the applicant that it was trying to understand why freedom had been still so important to him five years after the summonses when he had left for Australia.  The applicant stated that after the summonses he had difficulties while he was studying, and that after graduation he did not enjoy freedom at work, and that in Vietnam there is no freedom or democracy, and he was being discriminated against and he had come here seeking freedom. 

o   the Tribunal asked the applicant whether there were any other reasons he had come to Australia, or if the only reason he had come to Australia was to look for freedom.  The applicant confirmed that the only reason he had come to Australia was to seek freedom.

·     he was not a member of any political organisation in Vietnam, including of the Communist Party of Vietnam (CPV).  He was not allowed CPV membership because of his religion.

·     he had left Vietnam legally, and his 2013 ticket to Australia and his Australian studies were funded by his mother. 

·     prior to coming to Australia, he had intended to apply for a protection visa in Australia once he had landed in Australia and he had intended to remain permanently in Australia.  After he had come here, he was then introduced by some people to an agent so the agent could prepare a protection visa application properly for him.

o   the Tribunal discussed with the applicant that it might generally consider that an applicant with genuine claims for Australia’s protection would apply for protection as soon as they could after arrival in Australia rather than waiting for more than five years to apply, and it invited the applicant’s comment on this. The applicant responded that when he had arrived in Australia as a student he had not known where or how to apply for Australia’s protection, and then his family had become unable to support him further financially and he had had to drop out of his course of studies.  At that time, through some of his friends he had come to know his migration agent and about how to apply for the protection visa, but because an agent costs money he had had to work to earn money to pay for the agent.  The Tribunal further put to the applicant that it might possibly consider that his protection visa application was a just vehicle to stay legally in Australia because of his student visa being cancelled. The applicant stated that he did not know the status of his student visa at the time he was applying for his protection visa, and that his student visa status was not connected with his protection visa application. 

o   the Tribunal also asked the applicant about his Australian studies.  The applicant stated that while he had been enrolled upon his arrival in Australia in both an English course and a bachelor degree course following the English course, he had subsequently never actually been able to commence his bachelor degree course because he had never been able to meet the English entry level requirements for that course.  Instead, he had pursued trade-related training, but financial difficulties experienced by his mother after the April 2016 Formosa environmental disaster in Vietnam had meant that she was no longer able to assist him financially with any further fees for his studies. 

·     while the applicant was in Australia, the Formosa environmental disaster had occurred in Ha Tinh in Vietnam which had affected his mother who was a businesswoman who has been unable to work since then.  He subsequently made many online posts critical of the Vietnamese government in relation to the Formosa environmental disaster.  Sometimes he had also ‘liked’ other anti-Vietnamese government posts made by others in relation to other Vietnamese government activities which he had also believed were not right.

·     in response to his Formosa-related posts, the police had gone to his mother’s house on two occasions after the police had seen his posts, but not again afterwards.  On their visits, the police had threatened his mother in relation to his posts, and to her the police had also accused the applicant of participating in an overseas anti-government group like the Vietnamese Free People Community organisation or the New Vietnam party.  The last of these two police visits to his mother had occurred in 2016, and his posts also caused trouble for his family members in Vietnam when they needed paperwork approved by local government authorities.  These police visits and accusations had made him feel scared that he would be arrested and gaoled upon his return to Vietnam. 

·     in response to questions from the Tribunal about the significance of the 27 demonstration-related photographs which he had sent the Tribunal on 20 May 2024, and why he had provided them to the Tribunal, the applicant stated that these related to demonstrations relating to religion and Formosa which had taken place in his hometown.  He stated that he had given these photos together with the summonses to his migration agent but when his agent had lodged his protection visa application his agent had failed to submit these photos with his application, and that he had only realised this when he received the Tribunal invitation to attend the Tribunal hearing.

o   the Tribunal asked the applicant how he had known that the agent had not given these photos or the summonses to the Tribunal. The applicant first stated that he was told this by the Tribunal, but after further questioning on this by the Tribunal he then stated that he seen this after seeing a copy of his protection visa application which he had requested from his migration agent.

o   the applicant further stated that these demonstration photographs which he had provided the Tribunal on 20 May 2024 were from around 2016 and 2017 when he was in Australia, and they all related to this Formosa chemical spill incident which had occurred near his hometown of [Town], and which had caused severe damages and suffering to people in his hometown.  Local people including Christian people had at that time stood up against the authorities, who had then acted to suppress them, and someone in his hometown had posted the photos on [Social media].  The applicant had then shared the photos as well as his feelings and thoughts about the injustices of the situation, because he disagreed with the way the authorities had handled this incident, like he had disagreed with the authorities’ handling of the 2008 [Location] incident.  One of the people from his community was sentenced to seven years gaol for involvement in the protests and that person is still in gaol.

·     the Tribunal then put to the applicant its understanding from its own internet research that a number of these photos supplied by the applicant to the Tribunal had instead related to protests different to anti-Formosa protests, including protests against cybersecurity laws and to leases being granted to Chinese interests and to special economic zones. The applicant responded by stating that the photos relate to what Christians believe is not right and to what he also believes is not right.

·     the Tribunal then asked the applicant why authorities had not visited his mother after 2016, and whether this was because he was no longer making anti-government posts after 2016.  The applicant agreed that this was the case, and he stated that he had only posted in relation to the Formosa incident, and he agreed that since 2016 the authorities would not have seen any further posting by him. He stated that since 2016, he has instead limited his online activities to just ‘liking’ posts by others in order to protect his mother who had been intimidated by the police visits. 

o   the Tribunal asked the applicant whether the only times he is likely to have come to the attention of Vietnamese authorities since being in Australia was in relation to his Formosa-related postings. The applicant also agreed that this was the case.

· the Tribunal then discussed with the applicant that under the Migration Act, the Tribunal is required to draw an adverse inference against the credibility of any new claims or evidence provided after the time of the decision of the Department of Home Affairs, unless a reasonable explanation could be provided for the delay in putting forwards the new claims or new evidence. The Tribunal discussed with the applicant its understanding that his migration agent had prepared his application after he had provided the agent his claims, and that it was trying to understand why he had made no mention in his protection visa application of any harm experienced by him in Vietnam, or of any threats, or of any summonses, or of any threats to his mother relating to his summonses and his Formosa-associated postings, and why he had instead stated in his protection visa application that he had left Vietnam in order to study and obtain Australian qualifications. The applicant stated that he had provided his migration agent with all of his claims, as well as the photographs, as well as information about his religious claims, and that it was his agent’s fault that these claims had not been included in his original protection visa application. The applicant further stated that his agent, who had primarily been dealing with his ex-wife with their joint application, had also been at fault afterwards in not having kept him informed about the status of his protection visa application including the departmental refusal of his protection visa application and the subsequent Tribunal review application. He further stated that after having provided his claims to the agent, the next time he had heard about the agent was when the Tribunal had recently told him that the agent was no longer representing him.

·     the most important reason he cannot now go back to Vietnam relates to his religion because of his past participation in 2008 in the religious protest group voicing opinions against the communist regime.

o   the Tribunal put to the applicant that it might consider that his activities in the Catholic religious group were essentially political activities rather than religiously-based activities, and that any troubles he might face in relation to these activities might be regarded as politically-related troubles rather than religiously-related ones.  The applicant responded by stating that in Vietnam, there is no freedom of religion like in Australia, and in Vietnam there have been multiple arrests of Catholic priests and preachers.

o   the Tribunal further put to the applicant that it might consider that there is now no real chance of serious harm and no real risk of him suffering significant harm, due to his activities prior to coming to Australia, for the following reasons:

o   his involvement in the protest rallies in [Location] all happened over 15 years ago in 2008.

o   since that time, he had been allowed to complete his [subject] qualification, and also in 2011 to graduate with his [subject] qualification. 

o   he was also then able to leave Vietnam freely in April 2013 to come to Australia, about which the DFAT Country Information Report on Vietnam states that “…the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest”.

·     the applicant stated that he had no comment on this, and that he just wished to discuss the things which happened in 2016.

·     the second reason he cannot go back to Vietnam is because of his 2016 postings on social media about the Formosa incident, for which authorities in Vietnam will arrest and gaol him if he returns to Vietnam.  

o   the Tribunal put to the applicant that it might consider that he would not have any significant social media profile such that he would be at risk of serious harm or significant harm by authorities on any return to Vietnam, due to the Tribunal’s understanding that while he had made critical anti-government posts about the Formosa disaster, since 2016 he has limited his online activities to protect his mother to only ‘liking’ some other posts by others.  The applicant responded by stating that he has lived under communism, and that he knows that in his hometown whenever anyone stands up against the authorities, the authorities will then allege that they are participating in anti-government overseas organisations and they will then arrest those people.  In his hometown, one person was imprisoned for seven years and they are still in gaol. He does not know what the authorities think about him, but he is scared and he cannot return home. 

o   the Tribunal further put to the applicant that it might consider that he would not currently be a person of interest to Vietnamese government authorities, and that there is no real chance or real risk of him suffering harm due to his political opinions if he must return to Vietnam, for the following reasons:

o   he was able to leave Vietnam legally.

o   apart from his involvement in the protest rallies in 2008, he has not been involved in any other anti-government activities in Vietnam.

o   the only anti-government postings he has undertaken in Australia related to the Formosa incident.

·     the applicant responded by stating that he has been in Australia for 11 or 12 years without returning home, and he is afraid that if ever he returns to Vietnam he might be arrested and imprisoned.  During this time, he has wished to return to Vietnam to be with his mother because he is her son and she is in her [decade] and she is sometimes sick and unwell.  However, because of his fear of arrest he has not dared to return home.  He knows the Vietnamese authorities, and that they are very different to how they look from the outside. He swears this is the truth.

·     the applicant also stated that he has a child in Australia, and if he must return to Vietnam he would be separated from his child and he will have no chance to see his child in Australia which would be severely painful for him.

o   the Tribunal invited the applicant’s comment on its possible consideration, in relation to the refugee criterion, that while the Tribunal might consider that not being able to see his child would likely be extremely difficult and painful for him, the Tribunal might not be satisfied that the harm which he would experience from this would be harm being directed at him for the essential and significant reason of his race, religion, nationality, political opinion, or because of his membership of a particular social group. The applicant responded that his wife has remarried and has custody rights over their child, and if she remains here with their child and he returns to Vietnam, then he will lose the opportunity to be with his child and he will be very saddened by this. 

o the Tribunal then invited the applicant’s comment on its possible consideration, in relation to the complementary protection criterion, that the Tribunal might consider that this harm was not significant harm for the purposes of the Migration Act. That is, the Tribunal might consider that it would not be someone torturing him intentionally trying to cause him pain or suffering, or someone cruelly or inhumanely treating him or punishing him through intentionally trying to cause him pain or suffering, or someone treating him or punishing him in a degrading way so as to cause him extreme humiliation. Nor might the Tribunal be satisfied that the harm involves the arbitrary deprivation of his life, or the death penalty being carried out on him. The applicant declined to comment.

·     the applicant also stated that he cannot go back to Vietnam because he has been away from Vietnam for 11 or 12 years and he fears that he would be unable to find a job so that he could subsist in Vietnam, and that he would suffer discrimination like before, and that he would be unable to reintegrate back into Vietnamese society.

o   the Tribunal discussed with the applicant that when considering whether he might qualify for a protection visa because of the harm or difficulties which he might face on trying to reintegrate into society if he must return to Vietnam, the Tribunal must be satisfied that there is a real chance that he will suffer serious harm, or that there is a real risk that he would suffer significant harm, through his reintegrating back into society.  The Tribunal discussed with the applicant that when considering whether there is a real chance of serious harm, or a real risk of significant harm, among its considerations the Tribunal is required to take into account the DFAT Country Information Report on Vietnam which generally states the following[1]:

[1] DFAT Country Information Report on Vietnam, 11 January 2022, page 32.

·     The Penal code in Vietnam prohibits people smuggling.

·     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 [that is, either being involved in smuggling people out of Vietnam  or being helped to leave Vietnam by people smugglers]. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose. 

·     Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased… Returnees may be offered assistance by Non-Government Organisations (NGOs), but this may be more available to victims of trafficking rather than failed asylum applicants.

·     Being a failed asylum seeker is not generally stigmatised.  Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.

o   The Tribunal further discussed with the applicant that when considering this DFAT Country Information, and while acknowledging that he may face a range of difficulties on any return to Vietnam, including with accessing social services, the Tribunal might not consider that there is real risk that he would face serious harm or significant harm.  The Tribunal might not consider this because it might consider that while he would initially face difficulties in obtaining work or employment, any employment-related difficulties would be likely to be temporary in nature only and that he will likely be able to obtain ongoing employment into the future either as [an occupation 2] or in some other [work sector] role.  The Tribunal might consider this due to his being an experienced and qualified [occupation 2] with experience in running his own [occupation 2] business, and to his having worked in the [work sector] in both Vietnam and Australia, and to his being still young and generally very employable with a strong employment history. The Tribunal might consequently consider that any difficulties he might face, which could include difficulties in accessing social services, would not be at the level of either serious harm or significant harm.  The applicant responded that one of his friends whose situation is similar to his own had returned to Vietnam one month ago, and he was picked up and arrested, and there are many cases of arrests and assaults and beatings which only those involved and their families know about, and about which the Australian government does not know about.  He fears that if he returns, he will be arrested and he will be beaten and gaoled. He has previously received the summonses, and he has also shared Formosa-related content on social media, and Vietnamese authorities will make it extremely difficult for him on his return.

o   The Tribunal also discussed with the applicant that it might consider that being Catholic in Vietnam would be unlikely to result in harm to people who are not also protesting against the government, when considering the following to information contained in the DFAT Country Information Report on Vietnam[2] including the following: 

[2] DFAT Country Information Report on Vietnam, 11 January 2022, at 3.31

o   DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.

o   In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation.

o   Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities…which may include arrest or violence.

·     the applicant responded by stating that the DFAT report is totally wrong and that there is discrimination in Vietnam against Catholics including that the Communist Party of Vietnam does not allow people with a religious background to become members, and that university graduates cannot work in government jobs because of their religious background which is why he had to go overseas to Australia to look for freedom.

·     if he must return to Vietnam, he is very fearful about returning to Vietnam and being arrested.  One month ago, his friend returned and was arrested and suffered. He does not know to where in Vietnam he would return.

·     he is a benefit to Australia because he has his business here, and he pays taxes to the government, and he creates jobs here for other people, and he is a law-abiding person.  He very much wishes to be able to remain in Australia and he wishes to request the Tribunal the opportunity to stay in Australia and to work and contribute to building up this beautiful Australia.  He hopes that the Tribunal will view his case favourably and give him a positive outcome.

34.    At hearing, the applicant requested that the Tribunal take evidence from [Mr B] as a witness for the applicant.  In the presence of [Mr B], and in response to the Tribunals’ question to the applicant about what specifically the applicant wished the Tribunal wished to ask his witness [Mr B] about, the applicant told the Tribunal that during the time that he had worked together with [Mr B], he had told him about his past experience in Vietnam, and he also told him that he had come to Australia to look for freedom because as a student in Vietnam he had been involved in some religious activity and as a result he was summonsed by the authorities a few times, and after graduation because of his Catholic background he was discriminated against when looking for a job.

35.    [Mr B]’s evidence to the Tribunal was that he had met the applicant here in Australia when the applicant was a student, and that over the past 10 years he has come to recognise the applicant to be a law-abiding and good person in society, and that he considers him to be like his younger brother. 

o   When the Tribunal then asked [Mr B] what he knew about the applicant’s reasons for coming to Australia, [Mr B] stated that he thinks that the applicant came here to look for freedom because under the communist regime in Vietnam there is a lot of suppression and restraint and there is no democracy. [Mr B] further stated that he himself had come to Australia from Vietnam as a boat person looking for freedom, and that the applicant should be allowed to stay in Australia like him in a free and safe society and to be treated like a human being.

o   The Tribunal then asked [Mr B] whether he knew anything about any difficulties faced by the applicant while the applicant was in Vietnam, to which [Mr B] responded by stating  that he did not know about the applicant’s living conditions in Vietnam, but that from what the applicant had told him he feels sorry for the applicant in terms of him mentally living his life there, and that he guesses that the applicant had suffered while the applicant was in Vietnam.

o   The Tribunal then asked [Mr B] whether he was telling the Tribunal that he just guesses that the applicant had suffered mentally while he was in Vietnam but that he does not know specific details about that, to which [Mr B] responded that this was correct.

o   After [Mr B]’s evidence, the Tribunal asked the applicant to tell the Tribunal more about the nature of his relationship with [Mr A]. The applicant told the Tribunal that he has known [Mr A] for around 10 or 11 years, and that [Mr A] is [an occupation 3], and that when he was a student and newly arrived in Australia he would work for [Mr A] whenever he did not have classes, and so their relationship became closer and closer, and [Mr A] also became the godfather of his child.  The Tribunal then asked the applicant about the extent to which he had shared personal information with [Mr A], to which the applicant responded that he had shared information with [Mr A] to some extent about his life including that he had applied for a protection visa and that something had happened to him in Vietnam, but that he did not share with him a lot of personal information, only just a little bit of personal information.  The Tribunal then asked the applicant why he had only ever shared a little bit of personal information to [Mr A], given that [Mr A] is the godfather of his children.  The applicant responded by stating that he does not work with [Mr A] now, and that he just brings his children to see [Mr A] occasionally, and that [Mr A] is a godfather to his children in spiritual and religious terms only but not in other practical aspects. 

o   Further to s424AA of the Act, the Tribunal then discussed with the applicant that given that he and [Mr A] had known each other for more than 10 years, and given also [Mr A]’s evidence that he regarded the applicant to be like his younger brother, and given that [Mr A] was godfather to his children, the Tribunal might have expected [Mr A] to know more about the applicant’s situation in Vietnam and more about why he cannot return to Vietnam.  The Tribunal might have expected the applicant to have told [Mr A] about his involvement in the protests in 2008, and about the summonses and warnings he had received as a result, and about his fears of return and about why he feared returning, and about his claims of oppression as a Catholic, given the Tribunal’s understanding that these are the key reasons as to why he had left Vietnam.  Instead however, [Mr B] had just told the Tribunal that he knew that the applicant had come to look for freedom from the oppressive communist regime but that he did not know specific details about the suffering the applicant had experienced in Vietnam, and that he feels sorry for the applicant because he guesses that the applicant had suffered mentally in Vietnam.  The Tribunal told the applicant that this lack of knowledge by [Mr B] was relevant to the Tribunal’s review because it might make the Tribunal consider that the applicant’s claims of being involved in protests in [Location] and about the summonses and about the threats to himself and his mother, and about his fears of harm on return to Vietnam, and about his claims of oppression as a Catholic and about his fears of harm for being Catholic, were not credible.  The applicant responded by stating that he considers [Mr B] to be like his older brother which is why he is the godfather of his children, and that he had told [Mr B] that he was seeking refugee status and that he was scared to go back to Vietnam where he would be arrested, and that [Mr B] knows why he has remained in Australia for 12 years without returning to Vietnam, but he did not know why [Mr B] had not told this to the Tribunal.  He stated that he had not however told [Mr B] about the summonses received by him, and perhaps this was because he had not remembered to tell [Mr B] about this or perhaps it was because [Mr B] had not asked him, but that anyway he is not required to tell [Mr B] about everything which has happened to him because [Mr B] is not his mother or his father.  He further stated that he had not known the purpose behind having a witness at the Tribunal, and that he had just invited [Mr B] to give witness to his good character, and that he had not realised that he had been required to tell [Mr B] everything in order for [Mr B] then to be a witness at the Tribunal for him.  

36.    At hearing, the Tribunal also took evidence from [Mr A] also who appeared as a witness for the applicant. [Mr A]’s evidence to the Tribunal was that the applicant had told him that he will be persecuted because of his religious beliefs as a Catholic if he returns to Vietnam.  He stated that he himself is also [an occupation 2], and that he had first met the applicant around 10 months ago at a [shop] in [Suburb 2].  After their meeting, he started subcontracting [occupation 2] work to the applicant and he has found him to be a very honest, reliable and dependable worker who gets the job done right, and who keeps the customers happy. He said that it is very hard to find a good worker like the applicant, and that he would continue to provide him with work going forwards. He stated that the applicant is a very genuine person, who speaks the truth, and he said that the applicant is person about whom what you see is what you get.

37.    At hearing, the applicant also provided to the Tribunal a letter addressed to the applicant from the charitable organisation [Organisation], confirming he had commenced being a monthly donor to [Organisation].

Findings

Credibility

38.    When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the evidence, and the Tribunal acknowledges the importance of adopting a reasonable approach in its findings in relation to the credibility of evidence.  In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; (1996) 40 ALD 445, the Full Federal Court made comments about determining credibility, and the Tribunal takes particular note of the following comments provided by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

39.    The Tribunal further acknowledges that difficulties are often faced by genuine asylum seekers in being able to support their claims by documentary evidence or other proof, and it acknowledges the importance of giving the benefit of the doubt to asylum seekers whose account appears generally credible but who are unable to substantiate all of their claims.  In relation to this, the Tribunal accepts and applies in its findings process the credibility-related guidance provided by the United Nations High Commissioner for Refugees:

…if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts[3].

Harm because of his past anti-government activities

[3]The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at paragraphs 196 and 204).

40.    The applicant has claimed at hearing that he needs Australia’s protection and cannot go back to Vietnam because of his past anti-government activities, including his [Location] protest activities about which he received police summonses and warnings in 2008, and including his Formosa disaster anti-government social media postings after his arrival in Australia for which he also received police warnings.  He fears that he will be harmed by government authorities for those activities on any return by him to Vietnam, including being arrested and gaoled.   

41.    In considering whether the applicant is a refugee under the Act in relation to this harm feared by him, the Tribunal needs to be satisfied that there is a real chance that he would suffer serious harm: s5J(1)(b) of the Act.  A real chance is one that is not remote or insubstantial or a far-fetched possibility, and it can be well below fifty per cent and may even be a ten per cent chance: Chan Yee Kin v MIEA (1989) 169 CLR 379 & 429.

42.    In considering whether the applicant instead meets the Complementary Protection criterion under s36(2)(aa) in relation to this same harm, the Tribunal must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Vietnam, there is a real risk that he will suffer significant harm.  

43.    The Tribunal has considered the applicant’s written and oral evidence in support of his claims to be Catholic, including also the support letter from [Reverend C], and it is satisfied that the applicant is a practising Catholic, and that he has been practising Catholic since birth.  

44.    However, the Tribunal has significant difficulties in accepting the applicant’s oral evidence at hearing relating to his claimed protest activities in Vietnam prior to coming to Australia, and his related claimed reasons for leaving Vietnam.  This includes his oral evidence that he protested against the Vietnamese government in [Location] in 2008 in relation to Catholic land appropriation by the government, and that he came to the attention of authorities in Vietnam because of that protest activity, and that he was summonsed to the police station because of that protest activity, and that he was then warned by police that he must cease his [Location] protest activities or else he would be arrested and prevented from being able to complete and graduate from his diploma course, and that police also warned his mother about his protest activity, and that as a result of that protest activity he was also then monitored by the police wherever he went, and that he also experienced further difficulties while he was studying as a result, and that he then later experienced lack of freedom while working because of that protest activity, and that he left Vietnam in order to seek freedom, and that he genuinely now fears harm from authorities because of his protest activity. 

45.    Also, and in relation to the applicant’s oral evidence at hearing relating to his claimed anti-government social media activities after coming to Australia, while the Tribunal is prepared to accept that the applicant may have shared or ‘liked’ some Formosa-related anti-government material through social media in 2016 and even made some comments on some of that material while sharing it, the Tribunal has significant difficulties in accepting the applicant’s oral evidence that through his social media activity in Australia the applicant’s social media profile with Vietnamese authorities became such that the authorities then decided to visit the applicant’s mother to threaten her that he must cease his social media postings, and that they visited her on two separate occasions for that purpose, and that his family then also had difficulties in securing local government paperwork approvals because of that social media activity, and that the applicant genuinely now fears harm from authorities because of that social media activity. 

46.    The Tribunal has significant difficulties in accepting these oral claims made by the applicant at hearing in relation both to his protest activity in Vietnam and to his social media activity in Australia for several reasons, including firstly because the Tribunal finds that these are all new claims which were never mentioned by the applicant in his original protection visa application. 

47.    Further to this and in relation to his protest activity in Vietnam, the Tribunal finds that in his original protection visa application the applicant made no mention of involvement in any protests or protest groups, or of being monitored by authorities, or of any summonses or threats by authorities, or of any visits to his mother by authorities, or of any fear of punishment by authorities because of his actions while he was in Vietnam, or of any other difficulties or restrictions faced by him because of any actions by him in Vietnam, or of having left Vietnam to seek freedom.  Instead, the Tribunal finds that in his original protection visa application the applicant had stated that while he was in Vietnam, he had not formed any anti-government views, and he did not suffer any harm in Vietnam, and the reason that he had left Vietnam was to come to Australia to study and to obtain an Australian qualification. 

48.    Also further to this, but in relation to his social media activity in Australia, the Tribunal finds that the applicant also made no mention in his original protection visa application of any social media activity by himself, or of his having come to the attention of authorities, or of his having been threatened or warned by authorities, or of his mother having been visited and warned by authorities, or of his family then also having difficulties in securing local government paperwork approvals because of his social media activity.  Instead, the Tribunal finds that in his original protection visa application the applicant only made more generalised claims in relation to wrongdoing and poor performance and oppression and repression by the Vietnamese government, which he further stated that he had only come clearly to recognise after his arrival in Australia.  These more generalised claims included the applicant’s citing several examples of wrong-doing and poor performance by the Vietnamese government including in relation to its handling of the Formosa incident, as well as his stating that there had been many Formosa-related protests and marches organised by the Catholic church which had been violently put down by the government, as well as his making more generalised claims about the government’s repressive actions against individuals and groups who speak out against and criticise the government, as well as his making more generalised claims about the government’s repressive actions against many Catholic priests whom the government regards as being anti-regime, as well as his making more generalised claims about the Vietnamese government’s use of violence to repress the Catholic people whose faith the government regards as reactionary. 

49.    While the Tribunal acknowledges that the applicant did specifically state in his original protection visa application that he believed that he would be harmed and mistreated if he is to return to Vietnam ‘because of his…criticism of the Vietnamese government’, the Tribunal finds that in his original protection visa application the applicant otherwise did not make any other mention of criticism by him of authorities.  In these circumstances, and given the Tribunal’s above findings about the more generalised nature of the applicant’s claims in his protection visa application, as well as the context of this criticism reference within his written claims, the Tribunal further finds that this criticism reference by the applicant was a written reference by the applicant to future criticism by him of the authorities for which he might in future come to the attention of authorities, rather than a reference by him to past criticism of authorities for which he had already come to the attention of authorities.

50.    Further, the applicant’s oral evidence at hearing was that the reason why these new claims and the new physical evidence of summonses and photographs are only now being put forwards by him, is entirely due to the fault of his migration agent who had omitted to include them.  However, the Tribunal rejects this excuse as being implausible, because the Tribunal does not accept it as likely that a registered migration agent would completely omit to include all such claims and all such evidence, either intentionally or otherwise, which the applicant says he had provided to his agent before lodgement, and which the Tribunal also finds to be significantly stronger claims and supporting evidence for Australia’s protection than the claims and supporting evidence otherwise put forward by the applicant in his original application. In these circumstances also, the Tribunal finds that the applicant does not have a reasonable explanation as to why these new claims and this new evidence were provided after the time of decision on his application by the Department, and under s367A of the Act the Tribunal draws an inference unfavourable to the credibility of these new claims and this new evidence.

51.    The Tribunal also has significant difficulties in accepting the new oral claims made by the applicant at hearing, as they relate to the applicant’s circumstances prior to his departure from Vietnam, for the second main reason that the Tribunal finds that if they were genuine then it is likely that the applicant’s witness [Mr B] would have been able to give at least some oral evidence to the Tribunal about some of these claims. Instead however, the Tribunal finds that [Mr B]’s evidence to the Tribunal was that he did not know any details about the applicant’s situation in Vietnam and that he could only ‘guess at’ that situation.  In making these findings, the Tribunal has accepted that the applicant and [Mr B] are both from Vietnam, and that they have known each other for approximately 10 years, and that during that time they have also worked closely together and become close friends such that they now regard each other as being like their brother, and such that [Mr B] is also godfather to the applicant’s child. In making this finding, the Tribunal has also further found that the relationship between the applicant and [Mr B] is of such a nature that it is very likely that the applicant would have shared at least some aspects of these new claims with [Mr B] over the 10 years that they have known each other. In making this  finding, the Tribunal also acknowledges, but has rejected as being implausible, the applicant’s statement that he has never shared much personal information with [Mr B].

52.    The Tribunal also has further significant difficulties in accepting the applicant’s new oral claims at hearing, as they relate to the applicant’s social media activities after his arrival in Australia, for the third main reason that the applicant has claimed at hearing that the 27 photographs which he had provided the Tribunal on 20 May 2024 were photographs relating to protests in his hometown against the Formosa incident, which he had himself seen on social media and then reposted in 2016, and which he had also provided to his migration agent to submit with his protection visa application.  The Tribunal rejects this oral evidence because on its own viewing of the photographs and through its own online research, the Tribunal finds that a number of those photographs do not relate to demonstrations against the Formosa incident but instead to demonstrations against 99-year leases being granted to Chinese interests and against new Cybersecurity laws, with some of those photographs also including protest banners with June 2018 date references.  The Tribunal finds that these non-Formosa related demonstration photos include some or all of the photographs found on pages 4, 6, 8, 9, 11, 19, 21 and 27, of the 27 pages of photographs provided to the Tribunal by the applicant on 20 May 2024, which the Tribunal finds instead relate to mass protests in Vietnam against 99-year leases and against new cybersecurity laws.  The Tribunal further finds that these mass protests against the leases and cybersecurity laws occurred in Vietnam in June 2018[4] [5], which the Tribunal finds is after 2016 when the applicant claims to have re-posted these photographs, and also after lodgement of the applicant’s protection visa application in May 2018 for which the applicant claims to have provided his migration agent these photographs.

[4] Protests Spread in Vietnam Over Proposed New Laws

[5] Mass protests sweep Vietnam for the first time in decades | Waging Nonviolence

53.    The Tribunal also has further significant difficulties in accepting these new oral claims for Australia’s protection by the applicant for the fourth main reason of the time it took for the applicant to apply for Australia’s protection after his arrival in Australia.  In this regard, the applicant has asserted at hearing that his foremost reason for applying for Australia’s protection relates to his involvement in the [Location] protests prior to his coming to Australia, but the Tribunal finds that it took the applicant more than five years after his arrival in Australia in April 2013 to lodge his protection visa application in May 2018.  While the applicant has stated that his lack of knowledge of the protection visa application process and a lack of funds together delayed his application lodgement, the Tribunal does not accept that these together would cause a five year delay in application for Australia’s protection for someone genuinely fearing harm on their return to Vietnam, including also especially in circumstances where they have claimed to have received in 2016 further threats and home visits by authorities, and where also the Tribunal finds that it is likely that the applicant would have been aware in 2016 (or earlier) that his Australian immigration status was in jeopardy because of his discontinuation of his studies.

54.    In all these circumstances, the Tribunal is not satisfied that the applicant ever participated in any protests in [Location], or that he ever received any summonses from the police relating to that protest involvement, or that he and his mother ever received any visits or threats from the authorities relating to involvement by him in any protests, or that he was ever subsequently monitored by authorities or had subsequent difficulties with his studies or lack of freedom at work because of any protest involvement, or that the applicant has ever feared and still now fears harm because of any involvement by him in any protests, or that there is any risk of harm to him because of any involvement in such protests, or that he left Vietnam in search of freedom.  There is also no evidence before the Tribunal that the applicant has participated in any other anti-government activities while he was in Vietnam. Instead, the Tribunal accepts the applicant’s statements in his original protection visa application that he did not experience any harm when he was in Vietnam, and that he left Vietnam to study in Australia and to gain an Australian qualification.

55.    In all these circumstances also, and while the Tribunal is prepared to accept that the applicant may have made some more limited anti-government posting in relation to the Formosa incident including some sharing of his thoughts and feelings about government actions in relation to that incident, given the nature of that incident which the Tribunal accepts to have been one of Vietnam’s worst ever environmental disasters which caused considerable suffering in the applicant’s own province of Ha Tinh[6], the Tribunal is not satisfied that the applicant has ever participated in any other public anti-government activity or that he has become of such an online profile or other profile to Vietnamese authorities since his arrival in Australia so as to warrant them visiting his home and threatening him or his mother, or so as otherwise to endanger him, or that authorities ever visited his mother to threaten him because of his social media activity, or that his family members ever had difficulties in securing local government approvals because of his social media, activity.  

[6] Victims of Vietnam’s Formosa Toxic Spill Deserve Justice | Human Rights Watch

56.    In all these circumstances also, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm, or that there is a real risk that he will suffer significant harm, if he must return to Vietnam, because of any anti-government activities by the applicant either in Vietnam or in Australia or in both countries. 

57.    In making these findings, the Tribunal acknowledges the three summonses provided by the applicant to the Tribunal, which the Tribunal finds are all addressed to the applicant and all dated at around the time of the [Location] protests, but which otherwise do not make any reference as to why the applicant was being summonsed.  In all the above circumstances however, and noting that if the police summonses are genuine they could relate to activities by the applicant totally unrelated to any [Location] protest activities, and noting also the DFAT Country Information Report on Vietnam which states that document fraud is common in Vietnam[7], the Tribunal is not satisfied that these summonses are genuine police summonses of the applicant which relate to any [Location] protest activities by the applicant.  

Harm in relation to future anti-government activities

[7] DFAT Country Information Report for Vietnam, 11 January 2022 at 5.42

58.    In his protection visa application form, the applicant has also claimed that he will be harmed and mistreated if he returns to Vietnam, including being imprisoned and tortured and subjected to cruel or inhuman treatment and punishment, because of his anti-Vietnamese government beliefs and because of his criticism of the Vietnamese government.  As above, the Tribunal has found that this ‘criticism’ reference by the applicant is a reference by the applicant to future criticism by him of the authorities for which he might in future come to the attention of authorities.

59.    In its consideration about whether the applicant qualifies for Australia’s protection under the refugee or complementary protection criteria due to this harm claimed by the applicant, among other requirements the Tribunal must be satisfied that the applicant has a subjective fear of serious harm, and there is a real chance or real risk that the applicant would suffer harm amounting to serious harm or significant harm. 

60.    At hearing however, the applicant gave no oral evidence about any fear of harm held by him related to any future anti-government activity by him, or about any wish or intention by him to undertake anti-government activity in Vietnam in the future.  Also, as above the Tribunal has found that the applicant was not involved in the [Location] protests or in other anti-government activities while he was in Vietnam, and that since his arrival in Australia he has not publicly participated in any anti-government activity apart from some Formosa-related postings in 2016 which were of a limited nature such that he did not come to the attention of Vietnamese authorities in any way that might endanger him.  In these circumstances, the Tribunal is not satisfied that on any return to Vietnam, the applicant would undertake or wish to undertake anti-government activity in any significant way in the reasonably foreseeable future which might engager him. In these circumstances also, the Tribunal is not satisfied that the applicant has a subjective fear of serious harm, or that there is a real chance or real risk that the applicant would suffer harm amounting to serious harm or significant harm on his return to Vietnam, for reasons of any future anti-government activity.

Harm due to being Catholic

61.    The applicant claims that there is no freedom of religion in Vietnam, and that he has previously been discriminated against for being Catholic through not being allowed to join the Communist Party of Vietnam or to secure a government job.  He also claims more generally that the government considers the Catholic faith to be reactionary and to be an instigator and an agitator, and that there has been a new law restricting the work of missionaries, and that the Vietnamese government uses violence to repress the Catholic people, and that there were many protests and marches in relation to the Formosa disaster organised by the Catholic Church which the Vietnamese government violently put down, and that many Catholic priests are condemned for their actions by the government as instigators and as being anti-regime, and that there have been multiple arrests of Catholic priests and preachers.  The applicant’s written witness, [the Reverend C], has also stated that the applicant will face serious harm if he returns to Vietnam and that he is quite sure that the applicant is eligible for a protection visa.

62.    For the applicant to qualify for a protection visa due any harm he faces because of his Catholicism, among other requirements the Tribunal must be satisfied that there is a real chance or real risk that the applicant would suffer harm amounting to serious harm or significant harm. 

63.    In relation to the applicant’s above claims, as also supported by [Reverend C], the Tribunal gives strong weight to the DFAT Country Information Report on Vietnam[8] including to the following excerpts from that report: 

o   In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination.

o   DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.

o   In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation.

o   Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities…which may include arrest or violence.

[8] DFAT Country Information Report on Vietnam, 11 January 2022, at 3.31

64.    The Tribunal accepts that the applicant’s evidence that he is unable to join the Communist Party of Vietnam (CPV) or secure a government job because of his faith, and also that there are laws which restrict the work of missionaries including Catholic missionaries, and that the Vietnamese government has previously arrested Catholic priest and preachers, and that it has also used violence to repress Catholics including also those involved in the 2016 Formosa-related protests. 

65.    However, giving strong weight to the above DFAT Country Information Report excerpts, the Tribunal finds that past violence directed towards Catholics by Vietnamese authorities has generally only been directed towards those Catholics who were involved in anti-government political activism.

66.    Further, there is no evidence before the Tribunal to suggest that the applicant belongs to or intends to belong to an unregistered Catholic church in Vietnam on his return to Vietnam, or that he intends work as a Catholic priest or preacher or missionary on his return to Vietnam, and instead the Tribunal finds that he would be a member of a registered Catholic church on any return to Vietnam and that he would not likely work as a Catholic priest or preacher or missionary. 

67.    As above, the Tribunal has also found that the applicant was not involved in the [Location] protests or other anti-government activities while he was in Vietnam, and that he has not while in Australia come to the attention of authorities in any way that might endanger him.   As above also, the Tribunal is not satisfied that on any return to Vietnam, the applicant would undertake anti-government activity in any significant way which might engager him. The Tribunal is also not satisfied that being unable to join the communist party of Vietnam and being unable to secure a government job because of his religion, either individually or together amounts to harm at the level of either serious harm or significant harm. 

68.    In all these circumstances, and considering everything cumulatively, and also giving strong weight to the DFAT Country Information Report extract immediately above, including in particular its assessments that in general Catholics are able to worship freely, and that they generally do not face societal discrimination, and that Catholics who belong to registered churches and who are not politically active face a low risk of official harassment, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant or a real risk of significant harm to the applicant, because of his Catholicism. 

69.    In making these findings, and in relation to the above overall risk assessments by DFAT in its Country Information Report as excerpted above, the Tribunal has also noted that DFAT’s assessments of ‘low risk’ and ‘moderate risk’ should not substitute for an evaluation by the Tribunal as to whether the applicant faces a real chance or real risk of persecution. 

Harm due to separation from his son

70.    The applicant has claimed that his ex-wife now has a new partner as well as custody in Australia of their son, and that if he must return to Vietnam he would be separated from his child and he will have no chance to see his child which would be severely painful for him.

71.    In considering whether the applicant is a refugee under the Act in relation to this separation harm feared by him, among other requirements the Tribunal must be satisfied that this separation harm feared by the applicant would be persecutory harm which is directed at him by a third party for the essential and significant reason of his race, religion, nationality, membership of a particular social group, or political opinion: s5J(1)(a) of the Act refers.

72.    The Tribunal accepts if the applicant were to have to return to Vietnam with his son remaining in Australia, the resultant separation would likely be extremely difficult and painful for the applicant. However, there is nothing in the material before the Tribunal to suggest that this separation harm is harm which would be directed at the applicant by a third party for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion.  For this reason, the Tribunal finds that the separation harm feared by the applicant on his return to Vietnam does not meet the criteria set out in s5J(1)(a) of the Act.

73.    In considering whether the applicant instead meets the Complementary Protection criterion under s36(2)(aa) for this same separation harm, the Tribunal needs to be satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. Significant harm is exclusively defined in s36(2A) of the Act as follows:

(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.

74.    An intention to inflict the relevant harm is specifically required by the Act under further legislative definitions of ‘torture’, of ‘cruel or inhuman treatment or punishment’, and of ‘degrading treatment or punishment’. Additionally, the Australian courts have found that an intentional act or omission is required for an arbitrary deprivation of life[9]. 

[9] EZC18 v MHA [2019] FCA 2143

75.    However, the Tribunal does not accept that any harm through separation from his son which the applicant would experience through the applicant’s return to Vietnam would amount to the applicant being subjected to torture intended to cause him severe pain or suffering, or to him being subjected to cruel or inhuman treatment or punishment intended to cause him pain or suffering, or to him being subjected to degrading treatment or punishment intended to cause him extreme humiliation.  Nor does the Tribunal accept that it would amount to the arbitrary deprivation of the applicant’s life through an intentional act or omission by a third party, or to the death penalty being carried out on him. 

76.    For these reasons, the Tribunal does not accept that that any harm through separation from his son which the applicant might experience if the applicant must return to Vietnam would meet the definition of ‘significant harm’, as that term is exclusively defined in s.36(2A). The Tribunal accordingly finds that s36(2)(aa) is not met in relation to any separation harm. 

Other harm and difficulties in returning to Vietnam

77.    The applicant has given evidence to the Tribunal that he cannot go back to Vietnam because he has been away from Vietnam for 11 or 12 years and he fears that he would be unable to find a job so that he could subsist in Vietnam, and that he would suffer discrimination like before, and that he would be unable to reintegrate back into Vietnamese society.

78.    The applicant has also given evidence to the Tribunal that very recently one of his friends, whose situation is similar to his own, was picked up and arrested and had suffered after returning to Vietnam, and that there are many cases of arrests and assaults and beatings which only those involved and their relatives would know about, and about which the Australian government does not know. 

79.    In its consideration about whether the applicant qualifies for Australia’s protection under the refugee or complementary protection criteria due to these return and re-integration and discrimination difficulties feared by the applicant, among other requirements the Tribunal must be satisfied that there is a real chance or real risk that the applicant would suffer harm amounting to serious harm or significant harm. 

80.    In relation to these claims by the applicant, the Tribunal gives weight to the following information about conditions for returnees to Vietnam contained the DFAT Country Information Report on Vietnam[10]:  

o   Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased.

o   Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.

o   Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum.

[10] DFAT Country Information Report on Vietnam, 11 January 2022, page 33.

81.    While the Tribunal accepts that the applicant would likely face a range of difficulties on any return to Vietnam, including in accessing social services, the Tribunal also finds that the applicant is an experienced and qualified [occupation 2] who currently runs his own [occupation 2] business and who has worked in the [work sector] in both Vietnam and Australia, and that he is a reliable and dependable worker who performs well as a worker and [occupation 2].  The Tribunal further finds that while it is likely the applicant may initially face difficulties in obtaining work or employment, the applicant is still young and generally very employable with a good employment history and work ethic, and that any employment-related difficulties faced by him on return to Vietnam are likely to be temporary and short-term in nature only, and that he will likely be able to obtain ongoing employment in the reasonably foreseeable future either as [an occupation 2] or in some other [work sector] role. 

82.    In these circumstances, and given also the Tribunal’s above findings that there is no real chance of serious harm or real risk of significant harm to the applicant directly relating to any previous anti-government activities, the Tribunal is not satisfied that any difficulties faced by the applicant in re-integrating back into society, and including also when considered cumulatively, would rise either to the level of serious harm or to the level of significant harm.

83.    In making this finding, the Tribunal has also accepted and taken into account the applicant’s evidence that he would not be able to join the Communist Party or be employed in the public sector because of having a religious background. However, the Tribunal is not satisfied that these factors elevate the re-integration and return and discrimination-related difficulties to be faced by the applicant to the level of serious harm or to the level of significant harm.

84.    In making this finding, the Tribunal has also considered the applicant’s evidence that very recently one of his friends, whose situation is similar to his own, was picked up and arrested and had suffered after returning to Vietnam, and that there are many cases of arrests and assaults and beatings which only those involved and their relatives would know about, and about which the Australian government does not know. However, and while the Tribunal accepts that the applicant may genuinely believe this evidence, the Tribunal is not satisfied that the applicant could ever truly know his friend’s full circumstances and about how similar they are to his own, or the full circumstances of those many others who have suffered arrests and assaults and beatings, and the Tribunal instead relies on the above-cited DFAT Country Information. 

85.    On the evidence before it, the Tribunal is not satisfied that any difficulties to be faced by the applicant on his return to Vietnam are at the level of serious harm for the purposes of s5J(4)(b) of the Act, or that they are significant harm for the purposes of s36(2A) of the Act.  Accordingly, the Tribunal finds that there is no real chance of serious harm, or real risk of significant harm to the applicant, on his return to Vietnam in relation to his return and re-integration into Vietnam, and that sections 5J(1)(b) and 36(2)(aa) of the Act are not met in relation to any return and re-integration difficulties to be faced by the applicant on his return to Vietnam.  

CONCLUSIONS 

86.    For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a).

87.    Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

88.    There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the Tribunal finds that the applicant does not satisfy the criteria in s36(2).

DECISION

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

Date of hearing:  6 June 2024 and 29 July 2024.

Representative for the applicant: Not represented.

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…