2012159 (Refugee) [2022] AATA 1363 (7 April 2022)

Last Updated: 29 May 2022

2012159 (Refugee) [2022] AATA 1363 (7 April 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2012159

COUNTRY OF REFERENCE: Vietnam

MEMBER: Alison Mercer

DATE: 7 April 2022

PLACE OF DECISION: Melbourne

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

Statement made on 7 April 2022 at 4:33pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – opposition to Communist Party in Vietnam – protested over Formosa chemical spill – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547
MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 30 November 2019. The delegate refused to grant the visa on the basis that he did not accept that Australia owed the applicant protection obligations as he found that she did not meet the refugee criteria or the complementary protection criteria. The delegate was not satisfied that the applicant would face a real chance of harm due to her imputed opposition to the Communist Party in Vietnam (simply because she was not a member of that Party), nor for her for taking part in protests due to environmental impact of the 2016 Formosa Steel Corporation disaster, given there was no credible evidence that she had a significant profile as a high profile political activist who might be at risk from the government.

3. The Tribunal received a review application from the applicant on 28 July 2020.

4. On 22 September 2021, the Tribunal conducted an outreach to the applicant seeking her current telephone number in order to schedule a telephone hearing. The applicant did not respond.

5. On 12 October 2021, the Tribunal wrote to the applicant again to invite her to a telephone hearing on 28 October 2021, providing a Tribunal telephone number for her to call in to attend the hearing.

6. On 28 October 2021, the applicant rang in to attend the hearing. The Tribunal conducted this hearing as a directions hearing, with the assistance of an interpreter qualified in the Vietnamese and English languages.

7. The Tribunal confirmed with the applicant that the claims contained in her protection visa application lodged on 30 November 2019 were her complete claims, and that she had no other claims to raise or to add about why she feared returning to Vietnam. The Tribunal confirmed with the applicant that she initially travelled to Australia as the holder of the visitor visa. The applicant confirmed that she is single, and has never been married. She clarified that the child referred to in her protection visa application is her brother, and that the fears she expressed in her protection visa application related to herself, her parent(s) and her brother. In response to the Tribunal’s query, the applicant confirmed that she is living with her aunt (her mother’s oldest sister) in Australia, who is an Australian citizen. The applicant confirmed her current email and mobile telephone details. The Tribunal advised the applicant that it intended to suspend the hearing and adjourn her matter for a longer hearing, to be conducted by video conference, most likely in December 2021 and it advised her that it would write to her to confirm the date in due course.

8. On 28 January 2022, the Tribunal wrote to the applicant to invite her to attend a resumed video hearing to be held on 16 February 2022. On 9 February 2022, the applicant responded by email indicating that she would attend the hearing. She did not provide any additional submissions with her hearing response.

9. The applicant appeared before by the Tribunal by telephone on 16 February 2022 to give evidence and present arguments, as it transpired on the date of the hearing that the applicant did not have the technical capacity to participate by video conference, and she consented to proceed with the hearing by conference telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. After the applicant advised the Tribunal that she felt unwell during this hearing after giving evidence for approximately 2 hours, the Tribunal adjourned the hearing at her request and advised the applicant that it would schedule a resumed hearing for her in the near future. The Tribunal also indicated that it did not anticipate rescheduling the matter another time for health reasons unless the applicant was able to provide a medical certificate clearly indicating that she was unable to participate in a telephone hearing scheduled for approximately 2 hours. The Tribunal is satisfied that the applicant had the capacity to give evidence up until the point she requested a hearing adjournment, as she did not express any concerns about her ability to give evidence up until that point, nor did the Tribunal observe that she was compromised in her ability to respond to its questions prior to that point.

10. On 16 February 2022, the Tribunal wrote to the applicant to advise her that the resumed telephone hearing had been scheduled for 25 February 2022 at 10am for 2 hours, and that it would not be rescheduled on health grounds in the absence of the applicant providing a medical certificate clearly indicating that she was medically unfit to participate in a telephone hearing expected to last 2 hours with breaks.

11. On 21 February 2022, the Tribunal received a hearing response form from the applicant in which she had ticked the box indicating that she would not attend the hearing and consented to the Tribunal making a decision on the papers. At the Presiding Member’s request, a Tribunal officer rang the applicant on 21 and 22 February 2022 to confirm her intention not to attend the hearing, but was unable to speak with her directly. Accordingly, the Tribunal Officer left a message requesting that the applicant return her call. However, the applicant did not do so.

12. On 24 February 2022, the Tribunal wrote to the applicant via email to advise that after receiving her hearing response, the Tribunal had cancelled the resumed hearing scheduled for 25 February 2022. It nevertheless invited the applicant to provide any further written submissions and/or documents in support of her case by 11 March 2022.

13. The Tribunal did not receive any further material from the applicant by 11 March 2022, and it has received no further communications from her to date.

14. The Tribunal has therefore proceeded to make a decision on the basis of the available evidence, pursuant to s.425(2)(b) of the Act.

CRITERIA FOR A PROTECTION VISA

15. 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.

16. 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.

17. 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).

18. 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.

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

Mandatory considerations

20. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

21. In this matter, the Tribunal has had regard to the above Guidelines and also to the most recent DFAT Country Information Report on Vietnam issued 11 January 2022.

22. CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

Protection visa application

23. In her protection visa application, the applicant claimed to be a citizen of Vietnam, stating that she was born in [Phu Yen province], Vietnam in [year]. She stated that she could speak, read and write Vietnamese, that she was of Vietnamese ethnicity and had no religion. She stated that she had never been married and listed her previous occupation in Vietnam as a [Occupation 1] at [Workplace 1] between July 2017 and November 2019.

24. In relation to her family details, the applicant stated that there were no members of her family unit included in her application, and none who were not included in the application. She indicated that her family contact in Australia was her aunt, Ms [name deleted].

25. The applicant stated that she arrived in Australia on [date] November 2019 on a valid Vietnamese passport holding an Australian visitor visa, having departed Vietnam the previous day. She further stated that she had not travelled to any other country besides Vietnam before coming to Australia.

26. The Department’s records indicate that the applicant was granted a visitor visa on 18 November 2019 which was valid until 18 December 2019, that she arrived in Australia on [date] November 2019 and she made her protection visa application on 30 November 2019 and was granted a bridging visa A, which remains in effect to date. The bridging visa A is not subject to any conditions.

27. The applicant’s written claims in the form can be summarised as follows:

• she grew up seeing the dictatorship country mistreated her family, life had been so hard for them. She was not a communist party member so she received unfair treatment on most social interactions, including jobs, opportunities and social justice;

• they had no human rights so she decided to find ways to leave;

• she experienced harm in Vietnam. She was always conscious that social justice was a freedom that people were entitled to, she often participated in protests against companies that contributed harm to the people and the environment. It happened in the area where they lived, almost all the fish, shrimps and marine creatures all died and the fishermen were unemployed for a long time. They lived in a polluted atmosphere. She was part of a protest against a company called FORMOSA for illegally dumping poisonous waste to waterways and as a result, she was threatened, harassed by the intelligence elements of the government for her participation;

• she tried to seek help after this but was unsuccessful;

• she tried to move away to a different part of the country but fearing her parents and child would be harassed and/or mistreated, she therefore decided to stay put. If she tried to relocate within Vietnam, she would have no support;

• if she returned, she would be punished, harmed, threatened for speaking up against ‘their’ will. She would be in all sorts of trouble: labour camp, torture or imprisonment. She would not receive state protection if she returned as Vietnam had committed human rights abuse against its citizens. Only Human Rights Watch could help but there is none in Vietnam.

Department decision

28. The delegate accepted that the applicant was a Vietnamese citizen of Vietnamese ethnicity with no religion.

29. The delegate noted that the applicant claimed that she was discriminated against as she was not a member of the Communist Party of Vietnam (CPV). The delegate found that country information indicated that holding membership in the CPV conferred important social status, noting that one report concluded with respect to rural Vietnamese, that there was a ‘positive and significant effect on household income’ suggesting that CPV membership might allow easier access to lines of credit from both formal and informal lenders. He further accepted that membership of the CPV was a condition for leadership positions in government bodies, mass organisations and government run enterprises and ‘brings opportunities to participate in making important decisions for the community and whole nation’. Finally, the delegate acknowledged that the Australian Department of Foreign Affairs and Trade (DFAT) noted that, following the end of the Vietnam War, ‘trusted CPV members and their families were awarded prime positions, while Vietnamese previously allied with the US were punished and their children denied opportunities.’ He noted that DFAT also stated that the ‘CPV continues to prohibit membership if one’s parents (or those of a spouse) worked in the Saigon government or ‘armed forces of the enemy.’ However, the delegate also found that country information indicated that, with the growing importance of the private sector there were now alternative pathways to social and professional advance for non-CPV members. The delegate concluded that an interrogation of Departmental resources, along with open-source material, revealed no evidence to support the applicant’s assertion that non-members of the CPV were routinely discriminated against equating to serious harm.

30. The delegate found that the country information suggested that those Vietnamese that were allied to the US or in the Vietnamese army were prevented from becoming CPV members, but noted that the applicant had provided no evidence to suggest that her family were allied with the US or supporters of the South Vietnamese regime. While he accepted that, as non-member, the applicant might not be able to obtain government jobs that require membership of the CPV, he found that there was no evidence that demonstrated that simply being a non-member of the CPV resulted in routine discrimination that equated to serious harm. He was not satisfied there is a real chance that the applicant would suffer serious harm due to her non-membership of the CPV.

31. The delegate then considered the applicant’s claims that she had been threatened by the Vietnamese authorities for taking part in protests due to environmental impact of the 2016 Formosa Steel Corporation disaster (the delegate noted that for the purposes of his assessment, the terms ‘Formosa incident’, the ‘Formosa Steel Corporation’ and the ‘Formosa Ha Tinh Steel Corporation’ would be used interchangeably).

32. The delegate acknowledged that according to country information, the Vietnamese government suppressed political expression and protest, that Defend the Defenders, a local human rights organisation, had identified 242 current prisoners of conscience, and that those arrested included bloggers, lawyers, unionists, land rights activists, political dissidents, and followers of non-registered minority religions, with many charged under vague provisions of the 2015 penal code (which took effect in 2018) such as ‘making, storing, disseminating or propagandizing materials and products that aim to oppose the State of the Socialist Republic of Vietnam’, ‘disrupting national security’ or ‘abusing democratic freedom to violate the interests of the state’. The delegate further noted that university authorities had been told by the Ministry of Public Security to expel activists from their universities and that there had been reports that university students who participated in human rights advocacy had been prevented from graduating.

33. The delegate further found that the government prevented the exit and entry of individuals who openly expressed anti-government views, and that several individuals considered to be political dissidents or activists, or their family members, had been prevented from leaving or returning to Vietnam, or had had passports confiscated or withheld on often vague or unexplained grounds. The delegate specifically noted that in March 2019, police stopped Bui Kim Phuong, wife of political prisoner Nguyen Bac Truyen, from leaving Vietnam for Singapore; that in June 2019, police barred environmental activist Cao Vinh Thinh from travelling to Thailand; that in March 2018, at Hanoi Noi Bai airport authorities denied exit permission to a student who was traveling to study overseas due to his involvement in Formosa-related protests; that in May 2017, police stopped Polish-Vietnamese activist Phan Chau Thanh from entering Vietnam, while in June 2017, the authorities stopped former political prisoner Do Thi Minh Hanh from leaving for Austria to visit her ill mother. The delegate noted that in the same month, Vietnamese authorities stripped former political prisoner Pham Minh Hoang of his citizenship and deported him to France.

34. The delegate further found that public protests and gatherings were monitored or restricted and that the law required people wishing to gather in a group to apply for a permit from local authorities. He noted, however, that in practice, only those arranging publicised gatherings to discuss sensitive matters appeared to require permits. He further noted that while permits could be denied without explanation, and the government generally did not allow demonstrations seen to be anti- government or political, but nevertheless, despite legal restrictions and threats of crackdown by the police, Vietnamese citizens continued to express their views through numerous protests. The delegate accepted that activist groups seeking to exercise their freedom of expression or association might experience harassment, surveillance, restrictions on their movement, short-term detention and physical attack, and that attacks on rights campaigners had taken place in many regions of Vietnam.

35. The delegate accepted that anti-government protests were not tolerated by authorities, and that individuals and groups who protested against the Government or openly criticised the Communist Party were likely to attract adverse attention from authorities, experience police intimidation or harassment, or see their protests shut down, sometimes with the use of physical force. Country information indicated that individual petitioners seeking government action in relation to their land use rights had also been attacked or jailed. He further found that local communities protesting about the Formosa Ha Tinh Steel Corporation chemical spill had been accused of deliberately stirring anti-government sentiment. The delegate noted that Formosa Steel, the Taiwanese company responsible for an April 2016 spill in which chemicals leaked into the South China Sea, decimating fish stocks and devastating fishing communities along Vietnam’s central coast, agreed to pay $500 million in damages, and that the disaster provoked large protests against both the company and the government in part due to the heavy impact on the livelihoods of the affected communities. He further noted that attempts by fishermen to sue Formosa in a provincial court were thrown out, and that protests were also held in diaspora countries including Australia, where in March 2017 about 300 members of the Vietnamese community in Australia protested outside Victoria’s Parliament.

36. The delegate found, however, that authorities had generally not arrested or used unreasonable force against Formosa protesters, and that large protests demanding the Formosa Ha Tinh Steel Corporation be closed and further compensation provided to assist with the clean-up had generally not resulted in injuries or arrests by state actors. The delegate noted that the government had reportedly cracked down on human rights activists connected to a new civil society organisation, The Alliance of Self-Determined People, and that on 6 February 2018, a Vietnamese court sentenced two other activists to prison terms of 14 years and two years respectively for protesting against Formosa. He further noted that some supporters of the pair who attended the court building were beaten and detained in a police station until the trial ended at midday, and that on 6 April 2017, hundreds of Catholic protesters marked the one-year anniversary of the waste spill on the streets and beaches of Vinh diocese, and carried black flags with anti-Formosa slogans on them. Finally, he noted that in November 2018, Nguyen Van Hoa was jailed by the People’s Court of Ha Tinh in Nghe An province after filming protests outside the Taiwan-owned Formosa Plastics Group steel plant. His jailing followed being held for nine days at the Ha Tinh police station where he hung by his hands and beaten by eight police officers, who also threw water in his face.

37. The delegate concluded that the above country information showed that individuals with a high profile involvement in political activities who had been identified as anti-government activists or human rights defenders were likely to be monitored by the Vietnamese authorities and were frequently prevented from leaving the country. The applicant’s description of her experiences in Vietnam, however, was not commensurate with that of a high profile political activist. The delegate was also not satisfied that there was any evidence to suggest that the applicant was of adverse interest to the authorities when she last left Vietnam. He concluded that there was also no evidence to indicate that she had been involved in any political activities in Australia that would assign her a profile to that of an active organiser or dissident so as to be of interest to the Vietnamese authorities if returned. Further, the applicant’s ability to successfully obtain a passport, leave her home country, and travel to Australia confirmed that she did not possess a profile with the Vietnamese authorities due to her anti-CPV/anti-Government opinions, or any involvement in anti-government protests or other political activities.

38. While the applicant claimed that the she was threatened by Vietnamese intelligence due to her involvement in such protests, the delegate acknowledged that the above country information suggested that the Vietnamese government generally did crack down on individuals and organisations it viewed as anti-government using various methods to supress their activities, it also indicated that in relation to protests regarding the Formosa Ha Tinh Steel Corporation’s spilling of chemicals, only a small number of activists were arrested and that the protests had largely gone ahead without incident. The delegate acknowledged that participating in protests against the Formosa Steel Corporation’s involvement the 2016 environmental disaster might lead to the applicant being assigned an anti-government / anti-CPV political opinion. However, he found that there was no evidence that demonstrated that her involvement in such protests had actually assigned her a profile that was of adverse interest to the Vietnamese authorities, particularly given her ability to obtain a passport lawfully and depart Vietnam.

39. In assessing whether the applicant would face serious harm if she returned to Vietnam, the delegate considered that the country information did not support her assertion that someone with her profile and level of activity would be of adverse interest to the Vietnamese authorities, again noting that this conclusion was supported by the fact that the applicant was able to depart Vietnam freely on her own passport. He found that there was also no information that the applicant or her family had come to the adverse attention of the Vietnamese authorities prior to her leaving for Australian or since her arrival in Australia.

40. The delegate found that the applicant faced no real chance of harm from the Vietnamese authorities or anyone else in Vietnam as a result of her actual or imputed political opinion, due to her involvement in protest against the Formosa Steel Corporation.

41. Moreover, the delegate was not satisfied that there was a real chance that the applicant would suffer persecution for reasons relating to her anti-CPV/anti-Government, imputed or actual, political opinion if she were to return to Vietnam.

42. As a result of his consideration of the country information above and the applicant’s claims, both individually and cumulatively, the delegate found that there was no real chance that the applicant would face persecution on return to Vietnam in the foreseeable future. Accordingly, he found that she did not meet the criteria in s5H(1) of the Act and was therefore not a refugee and was not a person in respect of whom Australia had protection obligations as provided for in s36(2)(a) of the Act.

43. Further, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there was a real risk the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act; given this, he was not satisfied that she was a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.

44. Given the above, the delegate found that the applicant did not meet the definitions of a refugee or complementary protection, and was not entitled to a protection visa.

Tribunal application

45. As noted above, the applicant made a review application on 30 November 2019, and attended an initial telephone hearing on 28 October 2021 (the summary of evidence from which is set out at paragraph 7 above) and a resumed telephone hearing on 16 February 2022. The applicant declined to attend a further telephone hearing scheduled for 25 February 2022.

Tribunal hearing of 16 February 2022

46. At the resumed hearing by telephone with the Tribunal on 16 February 2022, the applicant and the Tribunal were assisted by the services of an interpreter in English and Vietnamese languages.

47. For the reasons set out in paragraph 9 above, the Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the ongoing COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant, including the preliminary telephone hearing conducted by the Tribunal on 28 October 2021 in which the applicant confirmed that she did not have any additional claims besides the ones listed in her protection visa application. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

48. As noted above, at the telephone hearing on 28 October 2021, the applicant confirmed that she completed her protection visa herself and that the biodata information contained in it was correct; that she is a Vietnamese citizen of Vietnamese ethnicity with no religion. She confirmed that she was not married at the time she made the visa application, and had never been married.

49. At the hearing on 16 February 2022, the applicant confirmed that she is living in Australia with her maternal aunt, who is an Australian citizen. She told the Tribunal that she has another aunt and an uncle in Australia, who are also Australian citizens. In relation to her immediate family, the applicant said that her parents and younger brother are in Vietnam, in Phu Yen province. Her younger brother is aged[age] and is at school. She also had a younger sister (aged [age]) who is currently in Australia as an overseas student, studying[field]. The applicant said that her younger sister came to Australia to study in or about mid-2019. The applicant told the Tribunal that her parents own and live on a farm in rural Phu Yen province.

50. In response to the Tribunal’s query, the applicant confirmed that she completed secondary school and then undertook a [degree] at [named University]. She then got a job with [Workplace 1] in Phu Yen province in a district town. She rented her own accommodation while working for [Workplace 1]. Since coming to Australia, the applicant had worked at [Workplace 2] but this closed down during the COVID19 pandemic. The applicant told the Tribunal that in the meantime, she had managed to get by financially due to living with her aunt, and was now looking for work again.

51. The Tribunal asked the applicant why she applied for a visitor visa to come to Australia in 2019. The applicant said that she wanted to visit her aunt here, and to do some sight-seeing. She said that she expected to stay in Australia for about 12 days, and that she understood that the visitor visa was valid for about 3 weeks. The applicant said that she applied online herself for the visitor visa. She confirmed that she also applied herself for a Vietnamese passport in order to travel overseas, as she had not been outside Vietnam until she came to Australia. She confirmed that she had no difficulty obtaining a Vietnamese passport in order to travel.

52. In response to the Tribunal’s query, the applicant said that she then applied for a protection visa on 30 November 2019 because she found that living in Australia was safer after the Formosa incident, and she had lost her job in Vietnam and wanted to look for other opportunities. The applicant said that she lost her job at [Workplace 1] because of downsizing – there was a restructure at [Workplace 1] and her job was made redundant. When asked when this occurred, the applicant said that it was 1 to 2 weeks prior to coming to Australia. The Tribunal noted that the applicant provided a copy of her employment contract with [Workplace 1] (dated 1 July 2017) with her protection visa application, which suggested that she was still employed by [Workplace 1] at that time. The applicant responded that she was still employed at [Workplace 1] when she applied for her visitor visa. The Tribunal queried this, noting that she had earlier indicated that 1 of the reasons she applied for the visitor visa was because she had lost her job. The applicant reiterated that she was employed at the time she applied for the visitor visa, but lost her job after this, about 1 to 2 weeks before she flew to Australia.

53. The Tribunal asked the applicant to talk about the Formosa incident that she had referred to earlier. The applicant responded that the Formosa company was a Chinese company that was responsible for an environmental disaster in Vietnam, where contaminated material was released into the sea by the company, which resulted in the widespread death of fish and other marine life, which in turn severely affected the livelihoods of fishermen and associated people and caused significant environmental damage. However, the government did not do anything about it. The applicant said that her parents were affected by this. When asked how her parents were affected, given they had an inland farm in Phu Yen province, which was not one of the provinces identified in reports as affected by the Formosa environmental disaster, the applicant said that the coastal disaster affected a stream which irrigated her parents’ farm so they were indirectly affected. When asked when this happened, the applicant said it was in the same year that the Formosa disaster occurred. She said she could not remember exactly when this was but thought it was maybe 2018. When asked if her parents were still affected by this, the applicant said that their farm had recovered, it was better now and they were no longer affected. The Tribunal observed that her parents would have had to have demonstrated their financial capacity in order for the applicant’s younger sister to obtain an Australian student visa in 2019. The applicant agreed.

54. When asked whether she had any personal involvement in the Formosa environmental incident, given that she appeared to have no connection to the areas or industries directly affected, the applicant said that she had family connections in Hue, which was significantly affected. She said that her grandparents and parents were born in Hue, and that she still had her grandparents and aunts and uncles in Hue. The applicant said that she went to a demonstration to protest about the Formosa company.

55. In response to the Tribunal’s query, the applicant said that she went to 1 demonstration only. It was held in her home area, the district township where she was employed by [Workplace 1]. Local people were upset by the disaster and organised a protest. Someone rang her and invited her to attend, so she did. She did not know the organisers beforehand but she agreed with their view. The protest involved about a dozen people, including her, and took place outside the local government building in her town. The police took all of the participants to the police station and gave them a verbal warning not to participate in any further demonstrations. The police told them it was not their direct concern and they should not take to the streets.

56. In response to the Tribunal’s query, the applicant said that she and the others received a verbal warning only, there was no paperwork and/or fines and no follow up by the police. The applicant confirmed that she had no further contact with the police before coming to Australia in November 2019, and nor did her family in Vietnam. Nor had the police contacted her family members in Vietnam since she came to Australia. The applicant said that she was too scared to attend any other protests after the police detained her as she did not want a black mark on her record. When asked if she felt that there were other protests she would have attended if not for the police detaining her, the applicant said that she was concerned about the Formosa incident. The police warned her that she would be penalised if she did participate in any further demonstrations or protests.

57. The Tribunal asked the applicant what she thought would happen if she returned to Vietnam now. The applicant said that she feared that the Vietnamese government would think that she had renounced her Vietnamese citizenship because she had applied for a protection visa application. The Tribunal queried how the Vietnamese government would know that she had applied for a protection visa application, given that the Australian government treated the protection visa application process as confidential and did not share this information with the Vietnamese government. The applicant said that she was not sure how the Vietnamese government would find out and stated that she would not tell them. She said that she was still afraid that she might be stripped of her Vietnamese citizenship.

58. The Tribunal raised with the applicant information in the January 2022 DFAT Report on Vietnam about returnees, which indicated that there were generally not any serious problems for returnees to Vietnam, including asylum seekers/protection visa applicants, unless there was some suggestion that they left and/or re-entered Vietnam illegally and/or were high profile anti-government activists in Vietnam and/or overseas. It asked the applicant if she wished to comment or respond. She indicated that she did not have any comments.

59. The Tribunal then read out to the applicant the claims set out in her protection visa application and asked her whether they were accurate or not. At this point, as set out in paragraph 9 above, the applicant indicated that she was feeling unwell and she requested the Tribunal to postpone the hearing to be completed on another day. The Tribunal agreed to do so, noting that it would not postpone again on medical grounds without the applicant providing a medical certificate indicating that she was medically unfit to attend a telephone hearing. As also set out in paragraph 9 above, the Tribunal was satisfied that the applicant was fit to give evidence up until this point during the hearing.

60. As noted above, the Tribunal scheduled a resumed hearing by telephone for 25 February 2022, but the applicant declined the resumed hearing invitation and consented to the Tribunal making a decision on the papers. She was given until 11 March 2022 to provide any additional submissions, comments or documents in support of her case but did not do so.

Country Information

61. The Tribunal had regard to the following sections from the Australian Department of Foreign Affairs and Trade (DFAT) Country Report on Vietnam, issued 11 January 2022:

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ECONOMIC OVERVIEW

2.5 According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation.

Employment and welfare

2.6 The official unemployment rate is about 2.4 per cent according to ILO data. However, the rate of informal employment is very high. According to figures quoted by the World Bank, 76 per cent of all workers are in the informal sector. The COVID-19 pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020. Women and low-skilled workers were particularly affected by the pandemic with many losing their jobs.

2.7 Vietnam is rapidly urbanising. The services sector has become the largest part of the economy at about 50 per cent of GDP. Vietnam has become a popular destination for manufacturing as wages are low and there is a young, growing and increasingly educated workforce. Some multinational companies looking to diversify their outsourced manufacturing have sought out Vietnam as an alternative location to other countries in the region for manufacturing, creating jobs for young people.

2.8 The poor are eligible for a social welfare benefit from 60 years of age with greater coverage and benefits for those over 80. The payment is usually not high enough to subsist on without other assistance. A compulsory insurance scheme (pension scheme) covers about 20 to 25 per cent of the population, mostly workers in the formal sector. Given the young population and high rates of informal work, a large number of people are not covered by any pension scheme. Particular groups among the poor, such as the elderly or ethnic minorities, without other means of support, may receive official payments or loans to assist with daily living expenses or practical assistance such as food, healthcare or vocational training.

2.9 Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount that they would receive would be unlikely to sustain them without other means of support. For information on health care subsidies see Health.

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Political System

2.28 Vietnam is a one-party communist state. Communist Party of Vietnam (CPV) members hold all senior government and military positions. The National Congress is the CPV’s largest national decision-making body. It meets every five years. The most recent Congress was in January/February 2021 and comprised 1,600 delegates. These delegates elected the 200-member Central Committee (the second-highest decision-making body that meets twice a year) which, in turn, elected the (currently) 18-member Politburo, Vietnam’s most powerful decision-making body.

2.29 The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power. Elections are held for the National Assembly, most recently in May 2021. Ninety-two per cent of candidates in the National Assembly are members of the CPV. Real political power is held in CPV structures rather than the National Assembly.

2.30 Vietnam is politically organised into 58 provinces and 5 municipalities (Hanoi, Haiphong, Da Nang, Ho Chi Minh City and Can Tho). Further subdivisions are districts and communes, which are the smallest level of government that exist in both rural and urban areas.

Human Rights Framework

2.31 Vietnam has ratified a number of UN treaties related to human rights. Vietnam does not have a national human rights institution. The Labor Code, revised in 2021, prohibits discrimination in employment based on sex, skin colour, race, nationality, ethnic group, marital status, pregnancy, political views, disability, HIV status or membership of a union (LGBTI rights are not covered). For information on how rights are exercised in practice see the relevant section: Religion, Race, Political opinion, Particular social groups and Complementary protection.

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Political Opinion (Actual or imputed)

3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.

3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.

3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.

3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information ... opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .

3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.

3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.

3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.

3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.

3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted. See also Online activists and Land and environmental disputes.

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Online activists and social media users

3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.

3.62 Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.

3.63 Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.

3.64 It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.

Land and environmental compensation disputes

3.65 Protests about land and its compulsory acquisition occur occasionally. All land in Vietnam is formally owned by the state, which issues usage rights to individuals or organisations. The state retains the right to reacquire the land and land owners allege low levels of compensation, which sometimes leads to protests. A recent prominent example was the January 2020 Dong Tam commune incident in which three police officers and a civilian were killed. The Dong Tam commune protests had been occurring for some years; protesters’ trials concluded in 2020 with some protesters receiving the death penalty and others life in prison for charges that related to the deaths of several police officers. Social media commentary on the issue later led to arrests of, and prison terms for, those commenting, demonstrating the sensitivity of the issue.

3.66 The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.

3.67 It is difficult to predict when a protest will escalate or attract Government attention. As with other protests, Government action might depend on the local government authority and its priorities. Overall, DFAT assesses that land and environmental protesters face a moderate risk of official discrimination.

Civil society organisations (CSOs)

3.68 Vietnam has a large Civil Society Organisation (CSO) landscape that is constitutionally protected (article 25) but heavily restricted in practice. While those involved in sensitive topics like human rights are carefully monitored, other active and vocal CSOs involved in less sensitive subjects such as women’s and LGBTI groups are relatively free to operate. Other factors that can determine the likelihood of Government attention are links to foreign CSOs and the actions of local government, which differ from place to place.

3.69 In practice, CSOs are experienced and skilled about how they publicly present their work, which can assist in avoiding official interference. For example, words like ‘human rights’ and ‘democracy’ are sensitive and different descriptions of CSO work are used instead. Even so, CSOs report a heavy bureaucratic burden (for example, extensive paperwork and delays) in registration and approval both for establishment and to have activities approved.

3.70 Because each CSO has to be registered and their activities approved, there is significant space for different approaches and outcomes for CSOs. CSOs dealing in sensitive matters may have registration delayed or cancelled and, at worst, members of CSOs might be imprisoned. DFAT assesses that those CSOs dealing in human rights or advocating for democracy or challenging one-party rule are subject to a moderate risk of official discrimination, but those working in less sensitive subjects are skilled in navigating the legal and cultural landscape of Vietnam and do not face significant interference.

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TREATMENT OF RETURNEES

Exit and entry procedures

5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.

5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.

5.27 Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.

5.28 Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.

Conditions for returnees

5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.

5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.

5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.

5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.

Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.

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

5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. 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. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.

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Other sources of information

62. In relation to the Formosa environmental incident, and associated protests, the Tribunal had regard to the following additional information:

• Business Human Rights Resource Centre, Vietnam: Fish deaths blamed on Formosa Plastics; Taiwan Court dismisses Vietnamese farmers' lawsuit over environmental damage, 17 April 2020, https://www.business-humanrights.org/en/latest-news/vietnam-fish-deaths-blamed-on-formosa-plastics-taiwan-court-dismisses-vietnamese-farmers-lawsuit-over-environmental-damage/
• Radio Free Asia, Ha Tinh villagers protest in bid to get Formosa payouts in Vietnam, 29 March 2017, available at: https://www.refworld.org/docid/58f9cb9613.html

63. The article from Business Human Rights Resource Centre states that 'in April 2016, large numbers of dead fish were found on the coasts of Ha Tinh, Quang Binh, Quang Tri, and Thua Thien Hue in Vietnam. A massive fish kill was caused by water pollution from toxic industrial waste discharged by a steel plant of Formosa Plastics. The company has admitted responsibility for the environmental disaster.'

64. Radio Free Asia reported that:

The April spill – Vietnam’s largest environmental disaster to date – killed an estimated 115 tons of fish and left fishermen and tourism industry workers jobless in four central provinces, including Ha Tinh.

Two months later, Taiwan-owned Formosa Plastics Group acknowledged it was responsible for the release of toxic chemicals from its massive steel plant located at the deep-water port in Ha Tinh province's Ky Anh district.

The Vietnamese government said in a report to the National Assembly in July of that year that the disaster had harmed the livelihoods of more than 200,000 people, including 41,000 fishermen.

The company pledged U.S. $500 million to clean up and compensate people affected by the spill, but the government has faced protests over the amount of the settlement and the slow pace of payouts.

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Identity

65. From the material before it, the Tribunal is satisfied that the applicant is a Vietnamese citizen who is of Vietnamese ethnicity and no religion. It finds that Vietnam is the appropriate country of reference against which to assess her claims to meet the refugee and/or complementary protection criteria.

Summary of Claims

66. The applicant claimed to fear harm if she had to return to Vietnam now or in the foreseeable future:

• because she was not a member of the Vietnamese Community Party and had faced, and would face, social and/or economic discrimination and breaches of human rights; and
• she would be at risk of being targeted and seriously harmed by the Vietnamese government due to her participation in a protest against the Formosa company in 2016 for environmental damage, and she had been threatened, harassed by the intelligence elements of the government for her participation; and/or
• she would be identified and targeted by the Vietnamese government for having applied for protection in Australia.

Credibility

67. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded 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.

68. The Tribunal also accepts that '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 United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

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.

69. 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 applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers.

70. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

71. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220).

72. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547).

73. The Tribunal found the applicant to be a credible witness in regards to most of her oral evidence at hearing; however, some of that evidence was at odds with her original claims. This is discussed, where relevant, in the sections below.

Non-membership of Vietnamese Communist Party

74. Although the applicant identified this in her written claims as giving rise to discrimination against her in the past (and potentially doing so in future), she did not raise this issue at the hearings of 28 October 2021 and 16 February 2022. The Tribunal did not have opportunity to explore this further with the applicant as she declined to attend a further hearing on 25 February 2022.

75. The Tribunal accepts, from the applicant’s written and oral evidence, that:

• the applicant completed secondary schooling in Vietnam, and then undertook tertiary education there, obtaining a [degree] from [University] in 2017;
• she then obtained employment as [Occupation 1] at [Workplace 1] from July 2017 until November 2019, when she was made redundant after a [Workplace 1] restructure;
• she left Vietnam on a validly issued Vietnamese passport; and
• her parents continue to own and operate a farm in Vietnam.

76. The Tribunal accepts that neither the applicant, nor her family members, are members of the Community Party of Vietnam (CPV), as she claims. However, it is not satisfied that she, or any family members, have suffered any harm as a result of their non-membership. The applicant told the Tribunal that she completed secondary and tertiary education in Vietnam and then obtained employment in her field in [Workplace 1], until she was made redundant in late 2019. There is no suggestion that she was denied employment or educational opportunities, nor is there any suggestion or indication that she lost her job due to her political affiliation (or lack of political affiliation, such as her lack of membership of the CPV). Rather, the applicant told the Tribunal, and it accepts, that she was made redundant due to a [Workplace 1] restructure. At hearing, she did not claim to have been refused government employment of any kind.

77. Further, her evidence to the Tribunal at the second hearing was that her parents owned and operated their own farm. Although the farm apparently experienced difficulties arising from flow on effects of the Formosa company environmental spill in 2016, the applicant told the Tribunal that these ceased to be an issue after a year or so, and that the farm was no longer affected by them. There is on evidence before the Tribunal, and the applicant did not claim at hearing that her parents had experienced any discrimination or breach of human rights at the hands of the Vietnamese government due to the fact that they are not CPV members (or for any other reason).

78. The Tribunal is therefore not satisfied that the applicant has not suffered any discrimination or other form of harm due to her non-membership of the CPV, and there is no evidence to suggest that she would do so if returned to Vietnam now or in the reasonably forseeable future.

Involvement in demonstration against Formosa Steel Company

79. The Tribunal had some concerns about the applicant’s credibility in relation to her claim to have been involved in a protest against the environmental damage caused in 2016 to the Vietnamese coastline due to a toxic spill from Formosa Steel, a Taiwanese company. This was because, based on her written claims, ostensibly, neither she nor her family had any geographical connection with the areas of the Vietnamese coastline that were affected, and also because the applicant appeared to struggle to recall when the incident took place, the details of the Formosa company, and when she attended a protest about it: as set out in paragraph 53 above, the applicant said that the Formosa company was Chinese (it is Taiwanese), and that the environmental spill and her attendance at a protest about it occurred in 2018 (the spill was in 2016)).

80. However, at hearing the applicant also explained that she has family connections in Hue (an area which was affected by the spill) and that her parents’ farm was indirectly affected due to some damage to its irrigation system.

81. On balance, the Tribunal accepts that the applicant had some personal motivation to protest against the Formosa company and/or about the handling of the incident by it and/or the Vietnamese government. It accepts that she attended 1 protest in the area in which she was employed with [Workplace 1], as this was her evidence at hearing. As noted above, the spill occurred in 2016, at which time the applicant (on her own evidence) was studying her [degree]. The Tribunal therefore accepts that the protest she refers to took place in 2018, as she claimed at hearing, in Song Cau town, Phu Yen province. While it does raise an issue of why there was a protest some 2 years after the incident, in an unaffected area, the Tribunal notes that the information cited by the delegate in his decision (a copy of which was provided to the Tribunal by the applicant) refers to protests about this incident continuing to occur in 2017 and action being taken against high profile activists/demonstrators in 2018. Accordingly, the Tribunal accepts that it is possible that a protest about the Formosa incident occurred in 2018 in Song Cau, Phu Yen, as claimed by the applicant.

82. Extending the benefit of the doubt, the Tribunal accepts that:

• the applicant attended 1 demonstration relating to the Formosa incident, which took place in 2018 in Song Cau town in Phu Yen province, where the applicant was employed as a [Occupation 1];
• the applicant was not an organiser but responded to a call to attend the demonstration, which involved approximately a dozen people, including her, and which took place outside the local government building in the town;
• the police took all of the participants to the police station and gave them a verbal warning not to participate in any further demonstrations. The police told them it was not their direct concern and they should not take to the streets;
• she and the others received a verbal warning not to participate in further demonstrations only, there was no paperwork and/or fines and no follow up by the police;
• the applicant had no further contact with the police before coming to Australia in November 2019, and nor did her family in Vietnam;
• the police had not contacted her family members in Vietnam since she came to Australia;
• the applicant was too scared to attend any other protests after the police detained her as she did not want a black mark on her record. When asked if she felt that there were other protests she would have attended if not for the police detaining her, the applicant said that she was concerned about the Formosa incident. The police warned her that she would be penalised if she did participate in any further demonstrations or protests.

83. To the extent that the applicant originally claimed that she was threatened, harassed by the intelligence elements of the government for her participation in the protest, the Tribunal does not accept this, as at hearing, she referred only to being temporarily detained and verbally warned by the police on the day of the protest, and made no reference to the intelligence services taking any action against her on that day or after that.

84. Based on the above evidence, and having regard to the country information cited in the delegate’s decision and the DFAT Country Report on Vietnam (January 2022), the Tribunal is not satisfied that the applicant would now suffer any harm from the Vietnamese police or government if she were now to return to Vietnam arising from her involvement in the above protest. In reaching this conclusion, the Tribunal places significant weight on the following information:

• the applicant did not organise the demonstration, but attended after being invited;
• the applicant was not arrested, but detained temporarily for several hours after attending the demonstration;
• she was not charged with an offence or fined for her participation;
• she received a verbal warning not to participate in further demonstrations and was not ill-treated in any way by the police;
• neither she nor her family have had any contact with the Vietnamese police since this occurred, some 4 years ago; and
• the applicant was able to obtain a valid Vietnamese passport legally without any difficulty and was able to depart Vietnam for Australia on this passport without any difficulty in November 2019, the year after her attendance at the demonstration.

85. The Tribunal is satisfied from the above that the applicant has no significant profile as a political activist and/or ring leader in relation to the Formosa incident (or any other cause) and would not be of any continuing interest to the Vietnamese authorities as a result of her attendance at the above demonstration.

86. In relation to whether the applicant would continue to demonstrate in relation to this issue if she now returned to Vietnam, the Tribunal is not satisfied that she would do so. The Tribunal reaches this conclusion based on:

• the applicant’s evidence that her parents’ farm had recovered from any damage caused by the Formosa incident;
• the fact that the applicant did not claim that she would continue to protest if she returned to Vietnam; and
• the country information that indicates that this matter has largely been resolved by the Formosa company and/or Vietnamese authorities offering compensation to affected persons and businesses.

87. The Tribunal accepts that in the past, the applicant may have altered her conduct (by not attending protests) to avoid persecution, but given her evidence is that she would only have attended Formosa-related demonstrations, and since that issue is now resolved, the Tribunal is satisfied that her motivation for not attending future demonstrations has evaporated. It is satisfied that she does not face a real chance of serious harm because she would not attend future demonstrations since the issue she demonstrated against no longer exists.

88. Therefore, the Tribunal is not satisfied that the applicant would continue to protest about this issue if she returned to Vietnam now or in the foreseeable future, and it finds that this is not because she fears harm for doing so, but because she is no longer sufficiently motivated about this issue to do so.

Returnee claims

89. At her second hearing, the applicant claimed that she feared being arrested, imprisoned and/or having her citizenship stripped from her if the Vietnamese authorities found out that she had applied for protection in Australia.

90. As discussed with the applicant at the second hearing, the Tribunal considers that the only way in which the Vietnamese authorities would find this out is if they were told by the applicant that she had done so. She indicated that she did not intend to tell them.

91. However, it is possible from the country information cited in the relevant section of the DFAT Country Report on Vietnam (issued January 2022) that the applicant might be questioned upon her return by Vietnamese officials at the airport, during the course of which it might emerge that she applied for protection while in Australia (see DFAT Report paragraph 5.31 above). If this were to occur, the Tribunal is nevertheless not satisfied that the applicant would be at risk of any harm from the Vietnamese authorities, as the above country information indicates that the likelihood of this is remote unless the applicant had been involved in people smuggling, people trafficking and/or departed Vietnam illegally (see DFAT report paragraph 5.34 above). The applicant did not claim to have done so, and there is no evidence that she did. The Tribunal gives weight to the fact that the Report indicates that failed asylum seekers generally face no discrimination from the government (see paragraph 5.34 above).

92. To the extent that the DFAT Report indicates that returnees, including failed asylum seekers typically face a range of difficulties upon return, including unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased, the Tribunal notes that the applicant was previously employed in her area of qualification in [Workplace 1], a position which was then made redundant after a restructure. However, there is no clear indication to the Tribunal that the applicant would not be able to seek similar employment if she returned to Vietnam now or in the reasonably foreseeable future.

93. The Tribunal is not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood of any kind, such that her capacity to subsist would be threatened, or suffer any other form of harm, on the basis of being a failed asylum seeker.

Residual Claims

94. The applicant did not raise any other claims at the hearings of 28 October 2021 or 16 February 2022, and declined a further hearing when it was offered to her.

95. In relation to her original protection visa claims, the Tribunal notes that she claimed:

• she grew up seeing the dictatorship country mistreated her family, life had been so hard for them and they had no human rights so she decided to find ways to leave;
• she experienced harm in Vietnam. She was always conscious that social justice was a freedom that people were entitled to, she often participated in protests against companies that contributed harm to the people and the environment;
• she tried to seek help after this but was unsuccessful;
• she tried to move away to a different part of the country but fearing her parents and child would be harassed and/or mistreated, she therefore decided to stay put. If she tried to relocate within Vietnam, she would have no support;
• if she returned, she would be punished, harmed, threatened for speaking up against ‘their’ will. She would be in all sorts of trouble: labour camp, torture or imprisonment. She would not receive state protection if she returned as Vietnam had committed human rights abuse against its citizens. Only Human Rights Watch could help but there is none in Vietnam.

96. The applicant did not provide any evidence or details relating to these claims at her hearings, except to indicate that:

• she participated in 1 demonstration about the Formosa incident only (second hearing);
• the reference to fearing for her ‘parents and child’ meant her parents and younger brother. She did not have a child (first hearing);
• she moved from her home area to study at University and again to take up employment upon graduation (second hearing);
• she gave no evidence of having sought any assistance from any organisation in relation to her involvement in the protest in 2018.

97. Based on the above, the Tribunal is not satisfied that:

• the applicant or her family experienced any denial of human rights at the hands of the Vietnamese authorities (aside from the applicant’s temporary detention by the police after the 2018 demonstration);
• the applicant relocated within Vietnam to avoid harm; or
• the applicant would face any serious or significant harm (including that she would be sent to a labour camp, tortured, or imprisoned) for any reason if she returned to Vietnam now or in the reasonably foreseeable future.

Totality of Claims

98. The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if she returned to Vietnam.

Refugee Assessment

99. For the reasons given above, the Tribunal finds that the applicant does not have a well - founded fear of persecution as required by s.5J for any of the grounds advanced and it therefore finds that she is not a refugee within the meaning of s.5H.

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

Complementary Protection Assessment

101. In considering whether the applicant meets the complementary protection criteria in s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm. In this case, the Tribunal accepts that the applicant’s receiving country for these purposes is Vietnam.

102. For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Vietnam. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. The Tribunal has found that there is no real chance that the applicant will suffer serious harm in the reasonably foreseeable future if returned to Vietnam.

103. It follows that the applicant does not accept that there is a real risk that the applicant would face significant harm if returned to Vietnam for any of the above reasons, whether taken individually or cumulatively.

104. The Tribunal is not satisfied that the applicant meets the requirements of s.36(2)(aa).

Family Unit Member Assessment

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

DECISION

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



Alison Mercer
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

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

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

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

but does not include an act or omission:

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

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

...

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

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

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

...

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

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

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

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

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

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

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

...

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

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

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

...

5H Meaning of refugee

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

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

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

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

...

5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) significant physical harassment of the person;

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

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

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

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

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

5K Membership of a particular social group consisting of family

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

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

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

(i) the first person has ever experienced; or

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

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

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

5L Membership of a particular social group other than family

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

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

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

(c) any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i) the relevant State; or

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

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

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

(a) the person can access the protection; and

(b) the protection is durable; and

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

...

36 Protection visas – criteria provided for by this Act

...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...