AATA Case No. 1609717

1609717 (Refugee)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER:  1609717 

COUNTRY OF REFERENCE: Vietnam

MEMBER: Giles Short

DATE: 6 September 2016

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies paragraph 36(2)(a) of the Migration Act.

Statement made on 06 September 2016 at 8:55am

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
INTRODUCTION

1. [The applicant] is a citizen of Vietnam. She comes from [City 1] in the Khanh Hoa Province of Vietnam. She last arrived in Australia as the holder of a [visa] in March 2014 but this visa was cancelled under section 109 of the Migration Act 1958 [in] August 2015 on the basis that she had not complied with paragraph 101(b) of the Act in that she had provided incorrect answers in her application for the visa. [The applicant] has said that she fears that she will be arrested on her return to Vietnam because the Vietnamese Criminal Code has provisions which punish people involved in immigration fraud. She has said that although she is a victim of immigration fraud the authorities in Vietnam may take the view that she was involved in the scam. She has also referred to the fact that she is a Catholic and that her [relatives] worked for the Government of South Vietnam and fought the Communists. She has said that she fears that she will be treated differently or punished more heavily than other people because of her religion and her political opinion opposed to the Vietnamese Communist regime.
2. [The applicant]’s application for a protection visa was refused by a delegate of the Minister for Immigration and she has applied to this Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. The issues in this review are whether [the applicant] is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm.

CONSIDERATION OF CLAIMS AND EVIDENCE

Is [The applicant] a refugee?

[The applicant]’s claims

3. [The applicant] is aged in her [age]. She has said that she completed the equivalent of [education] in Vietnam in [year] and that she then worked mainly in retailing. She has said that for nearly three years before she came to Australia in 2014 she had her own business, a shop selling [certain items]. In a statutory declaration accompanying her application for a protection visa she said that her family had fought against the Communists during the Vietnam War and that after the end of the war her father’s family had lost all of their property. She said that her family had always been politically victimised. She said that they had had small businesses and they had frequently been visited by officials looking for bribes. She said that members of her family could not get government jobs, their movements were monitored and [some] of her [siblings] had escaped the regime by claiming asylum. She said that after this the monitoring of her family had escalated and she had felt as if she had been living in a prison. She said that she herself had always spoken out against the Vietnamese Communist regime’s oppression of their citizens.
4. [The applicant] said that she had paid $[amount] to an agent whom she knew only as [name] in order to obtain the visa which she had used to travel to Australia. She said that the agent had advised her to put her occupation as ‘[occupation]’ on her incoming passenger card and she said that she had not been aware that she had been committing any offence. She said that she had worked with her [sibling] in her [shop] from March 2014 when she had arrived in Australia until August 2015 when her visa had been cancelled by the Department on the basis that she had provided incorrect information in her application about her skills and her English language proficiency. [The applicant] said that she had not been aware how the agent had obtained the visa which she had used to travel to Australia nor had she been aware of the nature of the documents which she had signed because she had poor English.
5. [The applicant] said that she was a victim of immigration fraud and that the Vietnamese authorities were fully aware of this. She said that she would be suspected of having been involved in the scheme and that she had a well-founded fear of returning to Vietnam on this basis. She said that the Vietnamese Criminal Code had provisions to punish people who committed immigration fraud and that she was fearful that she would be arrested upon her return to investigate the scheme of which she had been a victim. She said that in Vietnam the police used brutal tactics to obtain information from people and that it would be difficult for her to prove that she had not been involved in the scam. She said that she could be beaten or even killed during the investigation and that she feared that she would be kept in gaol for an indefinite period of time.
6. [The applicant] was interviewed by the primary decision-maker in relation to her application [in] June 2016. [The applicant] said that she had been assisted by her representative when she had prepared her application for a protection visa. She said that her parents were visiting Australia from Vietnam at the time of the interview and that while they were here the local police force had put their house under surveillance in Vietnam. She said that her own case was very well-known because a lot of Vietnamese people had been in the same situation. She confirmed that she believed that the Vietnamese Government had learned of her case through the media. She said that her [siblings] had come to Australia through marrying Australian citizens. (At a subsequent interview [in] June 2016 she said that [one sibling] had come to Australia on a partner visa but [another sibling] had come here as a student and had then married. She said that her [other sibling] was now waiting for [permanent residence].) She said that when she had stated in her statutory declaration that they had escaped the regime by claiming asylum she had meant that they had been happy to have gained refuge in Australia.
7. Asked her reasons for seeking protection in Australia [the applicant] repeated that she believed that the Vietnamese Government knew about her case. She said that she was very concerned for her safety if she had to go back. The primary decision-maker asked her about her claim that she had spoken out against the Vietnamese Communist regime. [The applicant] said that her family had worked for the Government of South Vietnam and since her childhood she had never supported the Communist government because they were very cruel. She said that after the end of the war the Communist government had taken away property belonging to her family both on her father’s and mother’s sides. She said that the government claimed that there were human rights in Vietnam but the Vietnamese people were subject to suppression every day. She said that without money her family could not do anything: they had to pay bribes. She said that Catholics would never get government jobs.
8. [The applicant] said that she had spoken out against the government, she had listened to music that was prohibited in Vietnam, specifically music about South Vietnamese soldiers and songs against the current government, and she had shared information from the South Vietnamese Government. She said that the Communists tried to cover up arrests but she had put this information on [Social Media]. She said that every time she had had to deal with the government they had caused delays and they had asked her for money. She said that she had not had any involvement in political activity but she had put a lot of things on her [Social Media]. She said that she had had a group of friends and every time they had met they had discussed things against the government. She said that they had tried to avoid being arrested by the Communists because if this had happened they would never have got out. She said that she had spoken to her friends about things like policies which made the people suffer. She said that they had compared the current government to the South Vietnamese Government.
9. [The applicant] said that she had not experienced any physical harm from the government but the local government had kept coming to her home asking for money. She said that they had kept telling her that she was not allowed to listen to reactionary music written before 1975. She said that after the end of the war her family members had been sent to ‘new economic zones’ and even now her family on her father’s side were still there. She said that even now they were afraid to say anything against the government for fear of arrest. She said that her father’s [sibling] was a [occupation] and it had been very hard for him to become a [occupation]. She said that her father used to run a wholesale [business] but he had had to pay taxes and bribes. She said that at the moment her parents had [certain accommodation] and every [person] who came to stay there had to report to the local government. She said that her parents always complied with the law but the local police still came around and harassed them and asked them for money. She said that businessmen were singled out like this.
10. [The applicant] said that she herself had been harassed and asked for bribes whenever she had wanted to apply for documents or things like that. She said that as a Catholic it would have been very hard for her to get a government job. She said that the authorities were monitoring her family home on a daily basis. She said that her family had paid them money so that they would not touch them. The primary decision-maker referred to the fact that [The applicant]’s [sibling] had returned to Vietnam from Australia on numerous occasions. [The applicant] said that her [siblings] still had to visit her family in Vietnam. She said that the Vietnamese Government would not dare to touch Vietnamese people who had left the country and who had gained citizenship of another country. She said that if she herself returned to Vietnam she would have no one to turn to for help because she was still a Vietnamese citizen and the government could do whatever it wanted to her. The primary decision-maker referred to the fact that [the applicant] herself had first visited Australia in 2009 and had returned to Vietnam. [The applicant] said that she had not known that she could apply for a protection visa at that time.
11. [The applicant] said that an [relative] in Australia had paid for one of her [siblings] to come to Australia to study and at that time her father had been working on a [farm] so her family had had some money as well. She said that, although her father had been sent to a ‘new economic zone’ with his father, her parents had moved to Nha Trang after their marriage and they had started to build up from there. She said that she had borrowed the $[amount] for her visa from her parents and she had sold her small [business]. She said that she knew that the Vietnamese authorities had visited detention centres in Australia in 2014 and she thought that it would be very easy for them to have learned about her case. She said that one of her friends was a member of the Viet Tan party and the first time he had landed in Vietnam they had arrested him. She said that this proved that they learned everything from here. She said that an Australian and an American had been arrested.
12. [The applicant] said that all of her family had been members of the old regime so now her family was monitored by the current regime because her family had always opposed their regime. She said that everybody knew about her case so it would be very easy for the Vietnamese Government to get her information. She said that, because the Australian Government had found that she had not told the truth (in connection with her visa), the Vietnamese Government would suspect that she was not telling the truth to them as well. She said that the Vietnamese Government had a tight relationship with the Vietnamese in Australia.
13. The interview continued [in] June 2016. [The applicant] said that she would be considered by the Vietnamese Government to be a dissident because the Australia Government had concluded that she had come here using fabricated documents. She said that she had not been the one who had fabricated these documents. She said that if she were returned to Vietnam they would ask her why she was being deported and if the reason was that she had fabricated the documents which she had used to travel here the Vietnamese authorities would conclude that she would be able to do the same to deceive them. She said that if she were sentenced by the Vietnamese Government she would not be able to escape imprisonment. She said that she was paying a price for something which she had not done by being detained here and if she were return to Vietnam she would have to pay another price for something which she had not done.
14. [The applicant] said that she believed that there were specific provisions in the Vietnamese Criminal Code relating to migration fraud. She said that she was a victim of this migration scam. She said that the law in Vietnam said that you were not supposed to use fraudulent documents to exit or re-enter the country and she would be heavily punished. She said that all the information she had given to the person who had arranged her visa had been true and she had no idea how they had used this information to create these fraudulent documents. She said that the Australian authorities had accepted that she had been a victim of this scheme. She said that the Vietnamese Government could do anything because they were Communists. She said that she did not trust the Vietnamese Government and she referred to the case of failed asylum-seekers returned to Vietnam in May 2016 who had been gaoled for organising a boat departure.^[1]
15. [The applicant] confirmed that she claimed that she was a Catholic and she said that in Vietnam she had gone to church every week and she had also been a member of the church [group]. She said that she had also participated in all the religious activities in her parish. She said that at the moment Catholics in Vietnam were oppressed by the government and she believed that she would received a harsher sentence because she was a Catholic. She said that the government denied that it discriminated on the basis of religion but it was happening: the government grabbed land from churches, they damaged churches and they intervened during prayer sessions.
16. [The applicant] said that a Catholic priest who had raised his voice against the government had been assassinated and another Catholic father had been sentenced for his opposition to the government. She said that when her church had tried to do charity work they had been asked by the local government if they had permits to do this. She said that they had been free to hold their services but she said that she believed that Catholics were discriminated against in government employment. She said that her family had been Catholics for four generations. She said that her mother’s side of the family had had to move to the southern part of Vietnam because of oppression by the government.
17. [The applicant]’s representative submitted that the sole reason for the cancellation of [the applicant]’s visa had been the allegation of fraud and that [the applicant] had been an innocent victim in this regard. He submitted that the fact that her visa had been cancelled for this reason suggested that the Immigration Department had concluded that she had committed fraud. He submitted that this conclusion had been wrong and unfair and unjust but the Government of Vietnam could infer that she had been convicted of fraud overseas and that she might commit fraudulent acts in Vietnam. He submitted that she therefore held a genuine fear of persecution or punishment in one form or another.
18. [The applicant]’s representative submitted that [the applicant]’s application for protection was based on her religion as a Catholic. He submitted that, although [the applicant] had not had difficulties practising her religion in the past, the fact that she would be returning to Vietnam after her visa had been cancelled would mean that ‘her way of practising her religion would not be at ease’. He submitted that all it needed was one negative factor to trigger some investigation. He also submitted that because [the applicant] had been overseas her thinking would have been changed in one way or the other and ‘hence her ability to practise her religion will not be freely’.
19. [The applicant]’s representative submitted that more importantly [the applicant] relied on complementary protection in relation to the allegation of a fraudulent act. He said that he was asking the Department of Immigration to exercise its discretion to grant [the applicant] a visa for compelling and compassionate reasons.
20. Under cover of a submission to the Tribunal dated [in] August 2016 [the applicant]’s representatives produced a statutory declaration which repeated verbatim much of what she had said in the statutory declaration accompanying her application for a protection visa including the claim that her [siblings] had ‘escaped the regime by claiming asylum’. [The applicant] said that she had married her Australian citizen fiancé but she provided no details of the marriage. She confirmed that she claimed that she had posted comments on the government’s activities on [Social Media] and that she had listened to music prohibited by the authorities. She said that once she had been caught by the local authorities when listening to songs on South Vietnamese soldiers but she provided no further details. She confirmed that she claimed that her parents had told her that her home in Vietnam was currently under police surveillance. She said that it had been in 2013, not 2014, that Vietnamese officials had visited people in detention centres in Australia. She added that they had secret police around the world to monitor the activities of Vietnamese citizens.
21. In their covering submission [the applicant]’s representatives referred to her claims, again repeating verbatim much of what she had said in the statutory declaration accompanying her application for a protection visa including the claim that her [siblings] had ‘escaped the regime by claiming asylum’. [The applicant]’s representatives referred to advice from the Immigration and Refugee Board of Canada in relation to penalties under the Vietnamese Penal Code for falsifying the contents of passports, visas, household registration, civic status registration or various kinds of certificates and other documents of agencies and/or organizations and using such papers to commit illegal acts. They also referred to the fact that a representative of the Vietnam Human Rights Network had told the Board that the punishment for exiting Vietnam illegally and/or using fraudulent documents varied depending on the person and the circumstances and that dissidents who left the country illegally and/or used fraudulent foreign visas might face a high level of punishment including being put in gaol for years.^[2]
22. [The applicant]’s representatives said that she claimed that she and her family had been harassed due to their political affiliation with the South Vietnamese regime and their practice of Catholicism and they referred to her evidence that the local authorities had demanded bribes. They submitted that she had been harassed by the authorities as a Catholic but they provided no details of this claim. They submitted that her circumstances suggested that she had a profile as a person with views opposed to the Communist regime and that her deportation would enable them to punish her for her acts. They also submitted that her visa had been cancelled for providing fraudulent information and that the authorities would consider this to be immigration fraud. They submitted that details of her detention were already in the hands of the Vietnamese regime but they provided no evidence of this. They referred to the fact that Vietnamese officials had visited detention centres in Australia in 2013 and they submitted that the Communist regime had power to investigate the scam of which [the applicant] had been a victim. They referred to [the applicant]’s fear that she would be put in gaol for an indefinite period and they submitted that this claim fell under the complementary protection criterion.

Discussion of [the applicant]’s claims

23. At the hearing before me I referred to the fact that [the applicant] had said when she had been interviewed by the primary decision-maker in June 2016 that her parents had been visiting Australia at the time. [The applicant] said that her parents had come to Australia for three months at that time. She said that they had since returned to Vietnam but they were now visiting Australia for another six months. She confirmed that they had [certain accommodation] in Vietnam and she said that her [relative] - was looking after the business while they were here. She said that usually her parents visited Australia one at a time, not together.
24. [The applicant] confirmed that she was a Catholic. I asked her if she had experienced problems practising her religion in Vietnam. She said that she had not but she had had problems when she had gone to remote areas to persuade people to become Catholics. She said that this had not been approved by the local authorities. She said that she had done this within Khanh Hoa Province and she had gone to these remote areas with the priest and with the leader and other members of the church [group]. She said that usually they had gone there on significant or important festivals like the Mid-Autumn Festival or at Christmas because they had had to raise money in order to go there. She said that, even though they had informed the local authorities of their trip, when they had arrived the local authorities had forced them to go away. She said that they had only made [number] successful trips: the rest had not been successful. I asked her if, apart from the problems which she had just described, she had experienced other problems because she was a Catholic. She said that she herself had not had other problems but her family had. She said that, for example, when her [relative] had [chosen] a [occupation] it had taken him a long time to do the paperwork and they had asked him what grade he had finished at school.
25. [The applicant] said that when she had stated that her family had worked for the Government of South Vietnam and had fought the Communists she had been referring to [certain relatives]. I asked her what problems she had had because of her family background. She said that after the Communists had taken over in 1975 they had burned all her family’s personal documents and they had seized their assets. She said that her family had been forced to go to mountainous areas to work with their hands and two of her [relatives] had been sent to re-education centres. I asked [the applicant] if she herself had had problems because of her family background when she had been growing up. She said that as a child of a family who had worked for the South Vietnamese Government and as a Catholic even before they had gone to school they would be deemed democratic and they would be looked at in a different way from other people. She said that when she had been at school she had needed to ask for permission from the school if she had wanted to take part in activities for the church and they had always refused. She said that she was not sure whether this had been because of her family background or because they had objected to activities for the church. She said that in the context of her business the authorities had asked her for bribes although she said that other people whom she had known had also had problems like this.
26. I referred to the fact that [the applicant] had told the primary decision-maker that she had not been involved in political activity in Vietnam. [The applicant] said that this was correct but she referred to her evidence that she had had her own group, talking about things with her friends. She said that she had followed the Viet Tan party on the internet but she had not done anything else. I noted that at the interview she had said that a friend of hers from overseas who had been a member of the Viet Tan party had been arrested when he had landed in Vietnam. [The applicant] said that this person had just been someone whom she had known on the internet, not a friend of hers. She said that she had wanted to show that all the members of the Viet Tan party were under the surveillance of the Communist Party and that if they were involved in activities in Vietnam they would be arrested or they would be stopped from doing these activities. She said that this had been why she had mentioned this person who had been arrested when they had landed in Vietnam. She said that there could have been a misinterpretation and she had not claimed that this person had actually been her friend.
27. [The applicant] said that while she had been in Vietnam and also since she had been here she had shared information about what was happening with the Viet Tan party with her friends on [Social Media] and with her family because the Communists usually covered up these facts. She said that she had also shared her opinions and ideas which were contrary to the political policies of the Vietnamese Government in the same way. She said that she had not had problems because of comments she had posted on [Social Media] while she had been in Vietnam because the Communists had not been supervising people on [Social Media]. She said, however, that after she had arrived here there had been an order from the Vietnamese Government that all people on [Social Media] should be supervised or monitored. She said that while she had been in Vietnam she had not been able to access the website of the Viet Tan party and other websites of the Vietnamese community overseas. She said that she had had to change her IP address constantly so that she could access these websites to read information about the Vietnamese community overseas. She confirmed that she had also listened to music prohibited by the authorities and that on one occasion she had been caught by the local authorities when listening to songs on South Vietnamese soldiers. She said that she had been warned that she was not allowed to listen to this music. She said that since she had been in Australia she had not taken part in any Vietnamese community activities but she had added the flag of the Government of South Vietnam to [the status on Social Media].
28. I noted that [The applicant] had referred to the fact that her visa had been cancelled because she had provided incorrect information in her application. [The applicant] said that she had not been the person who had provided the incorrect information: she said that all the information which she had provided to the person who had done the paperwork for her had been true but this person had put incorrect information in the application. She said that the application had been lodged online and she had not signed the application. She said that she had not known anything about them providing false documents when they had lodged the application. I referred to her evidence that a corrupt immigration officer named [name] had assisted her to obtain her visa. [The applicant] said that when she had been in the detention centre she had read the news about this person and then she had compared it with the visa which she had received. She said that before this she had not known. She said that when she had been in the detention centre she had been interviewed by people from the Department of Immigration and the Australian Federal Police.
29. I referred to the fact that [The applicant]’s representatives had submitted that details of her detention in Australia were already in the hands of the Vietnamese regime. [The applicant] said that this was what she believed. She referred to the fact that in 2013 Vietnamese officials had visited detention centres in Australia and she said that the involvement of the corrupt immigration officer, [name], in providing false documents had been spread on the news in Australia so she believed that the Vietnamese Government was aware of these things. She said that she believed that the Vietnamese Government would keep an eye on the statistics about the number of Vietnamese people detained in the detention centres and how many had left.
30. I indicated to [The applicant] that I accepted that the Vietnamese Government would be aware of the activities of the corrupt Australia immigration officer because, as she had said, this had been quite well-reported in the media. I put to her that this did not necessarily mean that, if she were to go back to Vietnam, the Vietnamese Government would know that she had been a victim of this fraud or indeed that she had been in immigration detention in Australia. I noted that she had referred to the fact that Vietnamese officials had visited the detention centres in Australia in 2013 but I put to her that she had not even been in Australia at the time. [The applicant] said that a large number of Vietnamese refugees had come here and the Vietnamese Government would keep an eye on these people. She said that she also believed that the Vietnamese Government and the Australian Government would work together to exchange information about these things. She said that their visit in 2013 had just been an initial step: it had not been the end of it.
31. I noted that [The applicant] had referred to her family home in Vietnam being watched by the police. I put to her that it appeared from what she had said at the hearing before me that her parents had not had difficulty leaving Vietnam and going back there. [The applicant] said that a few days after her parents had arrived back in Vietnam the police had come to demand money. She said that if you wanted to lead a peaceful life in Vietnam the only way you could do this was to give bribes. I noted that she had also referred to having to give bribes to the authorities to conduct her business but I put to her that corruption was a significant problem in Vietnam.^[3] I put to her that I might take the view that these sorts of demands for bribes were something that everyone in Vietnam faced and that neither she nor her family were being singled out because of her family background or because of her political opinion opposed to the Communist regime. [The applicant] said that she did not agree. She said that when she had lived there her opinions had always been opposed to the Vietnamese regime.
32. I put to [The applicant] that the issue was whether she had been singled out by the authorities to make requests for bribes because of her political opinion. [The applicant] said that she had faced a higher level of demands for bribes compared to other people because of her religion and her political opinion opposed to the Vietnamese regime. She said that while it was true that a lot of people in Vietnam had to pay bribes, people who held political opinions opposed to the policies of the Vietnamese Communist Party or who had a religion would face a higher level of demands for bribes and they would be subject to worse treatment or heavier punishment. I noted that [The applicant] had not said that she had ever experienced any bad treatment or heavier punishment. [The applicant] said that whenever she had wanted to do some paperwork they had always refused to sign it and now if she had to go back there she would be punished more heavily.
33. I referred to [The applicant]’s evidence that she had not experienced difficulties practising her religion in Vietnam but that she had experienced problems when she had gone to remote areas with the priest and the [church group]. I noted that the Australian Department of Foreign Affairs and Trade produced assessments in relation to different countries which the Tribunal was required to take into account. I put to her that the Department assessed that Catholics in Vietnam who worshipped quietly and in a manner that conformed to government policies and sensitivities were able to do so with a low risk of official interference.^[4] I put to her that I might not accept that there was a real chance that she would be persecuted for reasons of her religion as a Catholic if she returned to Vietnam. [The applicant] said that lots of people had been arrested in Vietnam for practising their religion.
34. [The applicant] said that she had come to Australia and then she had been told that her documents were false and this had been why her visa had been cancelled. I put to her that she had said herself (in her application for a protection visa) that her visa had been cancelled because she had provided incorrect information,^[5] not because she had provided false documents. [The applicant] denied that she had provided incorrect information. I put to her that in the context of the Migration Act it did not matter whether she herself had filled out the form or whether someone else had filled out the form for her: she was held to be responsible for the incorrect answers in her application. [The applicant] said that she was a victim: she was not someone who cheated. She said that if she had known from the beginning that they had been going to provide false information she would not have applied for a visa to come here.
35. I referred to [The applicant]’s evidence that she had not experienced difficulties because of her political activities, for example posting things in [Social Media] and following the Viet Tan party in Vietnam. I put to her that I might not accept that there was a real chance that she would attract the attention of the Vietnamese authorities by carrying on these sorts of activities if she went back to Vietnam now. [The applicant] said that she was sure that she would be arrested and detained when she arrived at the airport in Vietnam. She said that the refugees who had come to Australia and who had been returned to Vietnam had been arrested when they had arrived at the airport although the Vietnamese Government had promised that they would not be arrested.
36. I put to [The applicant] that there did not appear to be any evidence that the Vietnamese authorities knew the basis upon which her visa had been cancelled. [The applicant] said that when she had left Vietnam the Vietnamese Government had been aware of what type of visa she had so if she went back to Vietnam they would have a reason to ask her why she had to go back. She said that this had happened not just to her but to many other people. I put to her that even if the authorities in Vietnam were to be aware that she had been a victim of this migration fraud, the Australian Department of Foreign Affairs and Trade had said that people who had paid money to the people organising these sorts of frauds were generally viewed by the government as victims of criminal activity rather than as criminals themselves. It had said that some of these people had been detained briefly and interviewed in relation to the investigation of these sorts of frauds.^[6]
37. I put to [The applicant] that it was difficult to accept on the basis of the evidence before me that there was a real chance or a real risk that she would be prosecuted for criminal responsibility in relation to this fraud. [The applicant] said that she did not think that the Vietnamese Government would think so. She said that the way the Vietnamese Government would look at this was very simple: when someone’s visa was cancelled they would be deemed to have done something wrong so when they came back to Vietnam they would be considered as someone who had committed some offence and they would be punished. She said that this was stated in the Vietnamese law.
38. After a break to allow [The applicant] to speak with her representative she said that she did not think that the Vietnamese Government would view her as a victim: she said that she thought that they would consider her as a criminal. She referred again to the fact that, although the Vietnamese Government had promised not to arrest failed asylum-seekers returned to Vietnam, they had not kept this promise. She also referred again to the fact that the fraud of which she had been a victim had been well-reported and people were aware of this. She said that she thought that her case would already be in the black book of the Vietnamese Government. She said that there had not been many people who had been victims of this scam and she was sure that the Vietnamese authorities would have a list of these people. She said that she believed that the Vietnamese Government and the Australian Government worked together. She repeated that 2013 had been the initial step.
39. [The applicant] said that while she had been in the detention centre she had heard a lot of information about those people who had been victims of this scam. She said that some of them had been arrested when they had arrived in Vietnam while others had had to pay bribes in order not to be arrested. She said that this was why she definitely believed that she would be arrested when she arrived at the airport in Vietnam. She said that the Vietnamese Government did not keep its promises. She said that they always tried to arrest people and to give people a hard time. She repeated that if she had known from the beginning that false documents had been going to be produced she would not have done this. She said that this had made her lose her future. She said that she had trusted her friend too much and she had been cheated.
40. [The applicant] said that when she had come to Australia she had considered it her second home. She said that she had worked very hard and she had obeyed all the Australia laws. She said that she had had a car and a house like everyone else and she was married as well. She referred to the fact that her husband was here and she said that he would be affected. She said that when her visa had been cancelled her future had been ruined. She said that she really hoped that she would be able to be reunited with her husband. [The applicant]’s representative submitted that if the Tribunal was not satisfied that [The applicant] met the requirements for a protection visa he would ask that the Tribunal recommend to the Minister that he exercise his discretion under section 417 of the Migration Act.

Conclusions

41. I formed a generally favourable view of [The applicant]’s credibility. In particular I consider it in her favour that she did not attempt to exaggerate her claims with regard to the problems which she has said she and her family had in Vietnam as a result of her religion and her family background. I accept that she is a Catholic and I accept that, as she said, lots of people have been arrested in Vietnam for practising their religion. However she said that she had not experienced difficulties practising her religion in Vietnam and the only problem to which she referred related to the obstacles placed in her way when she attempted to go to remote areas with the priest and with the leader and other members of the church [group] to persuade people to become Catholics. She said that they had only made [number] successful trips of this kind - the rest had not been successful - but she did not suggest that she or other members of her church had attempted to challenge the local authorities. As I put to her, it appears to me that she falls in the category of those Catholics in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities and who therefore face a low risk of official interference rather than in the category of religious activists who are perceived to be opposed to government policies.^[7]
42. I likewise accept what [The applicant] has said about her family background, in particular that her [relatives] worked for the Government of South Vietnam and fought the Communists. I accept that her family suffered persecution following the victory of the Communists in 1975 but she has not suggested that she was disadvantaged to any significant extent by her family background in obtaining an education or running her business. She said that the authorities asked her for bribes but she said that other people whom she had known had also had problems like this. While she said subsequently that she had faced a higher level of demands for bribes compared to other people because of her religion and her political opinion opposed to the Vietnamese regime, she has not suggested that this prevented her from running her business. She has said that her family is under police surveillance but it appears that what she really meant is that their activities are monitored so that, for example, the police were aware that her parents had returned to Vietnam and visited them a few days after their return to demand money. As I noted, she has not suggested that her parents have had any difficulty in leaving Vietnam.
43. I accept that, as [The applicant] has said, she holds a political opinion opposed to the Vietnamese Communist regime. Once again, however, she has not suggested that she has been involved in political activities which have attracted the attention of the regime or that there is a real chance that she will be involved in such activities if she returns to Vietnam now or in the reasonably foreseeable future. She has said that she shared information with her friends on [Social Media] and with her family and that she discussed political matters with a group of friends. However on the one occasion on which she actually came to the attention of the authorities - when she was caught by the local authorities when listening to songs on South Vietnamese soldiers - she has said that she was simply given a warning. She said that the government now monitors [Social Media] and her evidence in this regard is supported by the independent evidence available to me.^[8] However she said that she had been able to evade the government’s controls intended to prevent people from accessing websites such as that of the Viet Tan party by changing her IP address constantly and I consider that she will continue to be able to avoid the attention of the authorities by using such expedients if she returns to Vietnam. Having regard to her own description of her activities I do not accept that there is a real chance that she will be persecuted for reasons of her political opinion as a result of such activities if she returns to Vietnam.
44. [The applicant] has said that she obtained the visa which she used to travel to Australia through an immigration scam perpetrated by a corrupt officer working for the Immigration Department, [name]. According to media reports the scam was very simple: [Details deleted].^[9] [Details deleted].^[10]
45. As I indicated to [The applicant], I accept that the Vietnamese Government will be aware of [officer]’s activities. As I noted, the scam was well-reported in the Australian media. I consider that, even if the Australian Government did not seek the assistance of the Vietnamese authorities in investigating the scam, it must inevitably have come to the attention of the Vietnamese authorities having regard to the fact that the [number] victims mentioned in the media report were all from Vietnam. In their submission dated [in] August 2016 [The applicant]’s representatives referred to advice from the Immigration and Refugee Board of Canada in relation to penalties for exiting Vietnam illegally. While they specifically drew attention to the offence involving using fraudulent documents (which I do not consider to be applicable in [The applicant]’s case, given that no fraudulent documents were in fact involved), the advice also refers to Article 17 of Decree No. 167/2013 which prescribes penalties for giving an untruthful declaration in order to be issued valuable papers for exit from Vietnam.^[11]
46. As I put to [the applicant], there does not appear to be any evidence that the Vietnamese authorities actually know the basis upon which her visa was cancelled. However I accept the force of her submission that, if she is removed from Australia as a consequence of the cancellation of her visa, the Vietnamese authorities will become aware of the fact that her visa has been cancelled and will ask her why it was cancelled. Given that, as I have said, I consider it clear that the Vietnamese authorities are aware of the immigration scam perpetrated by [name], I consider it reasonable to conclude that in these circumstances they will be able to identify [the applicant] as one of the victims of the scam.
47. The question then arises with regard to what their attitude will be to [the applicant] in these circumstances. As I put to her, the Australian Department of Foreign Affairs and Trade has said that people who have paid money to the people organising these sorts of frauds are generally viewed by the government as victims of criminal activity rather than as criminals themselves although it has said that some of these people have been detained briefly and interviewed in relation to the investigation of these sorts of frauds.^[12] [The applicant] has referred in this context to the well-reported case of failed asylum-seekers who were returned to Vietnam from Australia earlier this year, four of whom were subsequently convicted and gaoled for organising the departure of the group by boat.^[13] While I do not regard this case as inconsistent with the advice of the Australian Department of Foreign Affairs and Trade, I consider that it indicates that caution should be exercised in concluding that, just because the Australian authorities might view someone as a victim of people smugglers (or migration fraud), the Vietnamese authorities will necessarily take the same view.
48. I also accept the force of [The applicant]’s argument that, given that the Australian authorities have cancelled her visa, the Vietnamese authorities will not see her as an innocent victim but as someone who has done something wrong. No issue of double jeopardy arises on the facts in this case because, as the primary decision-maker correctly noted, [the applicant] has never been prosecuted for any offence under Australian law. In considering whether there is a real chance that [the applicant] will be charged with an offence on her return to Vietnam I consider it relevant that a representative of the Vietnam Human Rights Network told the Immigration and Refugee Board of Canada that the punishment for exiting Vietnam illegally and/or using fraudulent documents varied depending on the person and the circumstances and that dissidents who left the country illegally and/or used fraudulent foreign visas might face a high level of punishment including being put in gaol for years.^[14] As I have indicated above, I accept that [the applicant] is a Catholic, that she has a family background of support for the former Government of South Vietnam and opposition to the current regime and that she holds a political opinion opposed to the Vietnamese Communist regime. Taking the cumulative effect of these circumstances into account and having regard to the advice of the Immigration and Refugee Board of Canada, I consider that there is at least a real chance that [the applicant] will be arrested and charged with an offence under Vietnamese law if she returns to Vietnam.
49. While the penalty for a breach of Article 17 of Decree No. 167/2013, referred to in paragraph 45 above, is only a fine, the representative of the Vietnam Human Rights Network told the Immigration and Refugee Board of Canada that other articles of the Penal Code which carried gaol terms could be used to punish those whom the regime regarded as dissidents. The representative provided the Board with details of cases in which people had been charged and punished under Article 91 of the Penal Code, dealing with those who flee abroad with a view to opposing the people’s administration. Such people can be sentenced to between three and twelve years of imprisonment. The Board noted that Amnesty International corroborated the use of the national security section of the Penal Code to imprison political activists.^[15] Having regard to the advice from the Immigration and Refugee Board of Canada, I consider that there is at least a real chance that, as [the applicant] fears, she will be treated by the Vietnamese authorities as a criminal and that her particular circumstances - her religion, her family background and her political opinion - could result in her being treated differently, and punished more harshly, in particular by the imposition of a term of imprisonment, than other people who may have obtained foreign visas by making untruthful declarations.
50. Taking into account the cumulative effect of [the applicant]’s circumstances, therefore, I consider there is a real chance that she will be persecuted for reasons of her religion and her real and imputed political opinion (based on her family background) if she returns to Vietnam. I consider that the harm which [the applicant] fears amounts to persecution involving ‘serious harm’ as required by paragraph 5J(4)(b) of the Migration Act in that it involves a threat to her liberty. I consider that her religion and her real or imputed political opinion are the essential and significant reasons for the persecution which she fears, as required by paragraph 5J(4)(a), and that the persecution which she fears involves systematic and discriminatory conduct, as required by paragraph 5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for one or more of the five reasons mentioned in paragraph 5J(1)(a). Given that the Government of Vietnam is responsible for the persecution which [the applicant] fears, I consider that the real chance of persecution relates to all areas of Vietnam and that effective protection measures (as referred to in section 5LA) are not available to her in Vietnam. I therefore find that [the applicant] is outside her country of nationality, Vietnam, and, owing to a well-founded fear of persecution as defined in section 5J of the Migration Act, is unable or unwilling to avail herself of the protection of that country, thus satisfying the definition of a refugee in section 5H. There is nothing in the evidence before me to suggest that she currently has a ‘right to enter and reside in’ any country other than her country of nationality, Vietnam, of the kind referred to in subsection 36(3) of the Migration Act.^[16] It follows that I am satisfied that she is a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) of the Migration Act. It is therefore unnecessary for me to consider her claims under the complementary protection criterion in paragraph 36(2)(aa) of the Act.

DECISION

51. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies paragraph 36(2)(a) of the Migration Act.

Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW

52. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations. Subsection 36(2) of the Act provides that:

‘(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.’

Refugee criterion

53. Section 5H of the Migration Act defines a person as a refugee if, in a case where the person has a nationality, the person 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, in a case where the person does not have a nationality, the person 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. Subsection 5J(1) states that a person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of a receiving country.
54. The definition of a refugee contains four key elements. First, the applicant must be outside his or her country of nationality or country of former habitual residence. Secondly, the applicant must fear ‘persecution’. Subsection 5J(4) of the Migration Act states that the persecution must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 5J(5) states that the following are instances of ‘serious harm’:
    • (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.
55. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ paragraph 5J(4)(c) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429. Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

‘A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

56. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Refugees Convention, the threat of harm to a person:

‘need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

57. Thirdly, the applicant must fear being persecuted ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Paragraph 5J(4)(a) states that one or more of the reasons mentioned in paragraph 5J(1)(a) must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
58. Fourthly, the applicant must have a ‘well-founded fear of persecution’ as defined in subsection 5J(1). That subsection contains a subjective requirement, that the person fears being persecuted, and an objective requirement, that there is a real chance that the person will be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility: see Chan per Toohey J at 407 and McHugh J at 429. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation: see Guo, referred to above, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572.

Complementary protection criterion

59. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Migration Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa), set out above. The Full Court of the Federal Court has 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 context of the Refugees Convention: see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed. ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A): see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’, to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

Ministerial direction

60. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Credibility

61. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281-282)

62. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

63. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

^[1] See the media report which she produced at folios 90-91 of the Department’s file [number].
^[2] Immigration and Refugee Board of Canada, ‘Vietnam: Consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas’, 6 March 2014, VNM104803.E.
^[3] US State Department, Country Reports on Human Rights Practices for 2015 in relation to Vietnam, Section 4, Corruption and Lack of Transparency in Government.
^[4] DFAT Country Information Report - Vietnam, 31 August 2015, paragraph 3.24.
^[5] See her answer to question 64 on Part C of the application form.
^[6] DFAT Country Information Report - Vietnam, 31 August 2015, paragraphs 5.23, 5.28.
^[7] DFAT Country Information Report - Vietnam, 31 August 2015, paragraphs 3.19-3.24.
^[8] US State Department, Country Reports on Human Rights Practices for 2015 in relation to Vietnam, Section 2.a, Internet Freedom.
^[9] Contrary to what is said in the decision under review, therefore, [the applicant]’s visa was not cancelled because she produced fraudulent documents: the scam did not involve any fabricated documents. As [the applicant] herself said in her application for a protection visa, her visa was cancelled because she gave incorrect information in her application for the visa.
^[10] [Information deleted].
^[11] Immigration and Refugee Board of Canada, ‘Vietnam: Consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas’, 6 March 2014, VNM104803.E.
^[12] DFAT Country Information Report - Vietnam, 31 August 2015, paragraphs 5.23, 5.28.
^[13] See the media report which [the applicant] produced at folios 90-91 of the Department’s file [number].
^[14] Immigration and Refugee Board of Canada, ‘Vietnam: Consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas’, 6 March 2014, VNM104803.E.
^[15] Immigration and Refugee Board of Canada, ‘Vietnam: Consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas’, 6 March 2014, VNM104803.E.
^[16] See Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35.