Vietnam: Consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

Information about the consequences of illegally exiting Vietnam was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

In correspondence with the Research Directorate, a representative of the Vietnam Human Rights Network (VHRN) provided information about the consequences for Vietnamese people who exit the country illegally, which they obtained with the consultation of a lawyer in Vietnam (27 Feb. 2014). VHRN describes itself as an "international consortium of human rights leaders and activists" formed in California in 1997, that aims to promote human rights and increase awareness of human rights abuses in Vietnam (n.d.). VHRN also sent the Research Directorate the relevant legislation and policy documents pertinent to this Response (27 Feb. 2014).

1. Legislative Penalties for Exiting Vietnam Illegally

The 1999 Vietnam Penal Code states:

Article 274. Illegally leaving or entering the country; illegally staying abroad or in Vietnam

Those who illegally leave or enter the country or stay abroad or in Vietnam, have already been administratively sanctioned for such act but continue the violation, shall be subject to a fine of between five million dong [VND] [about C$263 (XE 3 Mar. 2014a)] and fifty million dong [about C$2,630 (XE 3 Mar. 2014b)] or a prison term of between three months and two years. (Vietnam 1999, Art. 274)

Penalties for illegally leaving Vietnam are also addressed in the regulations of administrative violations under Decree No. 167/2013/ND-CP (VHRN 27 Feb. 2014). It states:

3. A fine of between VND 3,000,000 [about C$158 (XE 3 Mar. 2014c)] and 5,000,000 [about C$263 (XE 3 Mar. 2014a)] shall be imposed for one of the acts as follows:

a. Crossing national border without entry or exit procedures as prescribed. (Vietnam 12 Nov. 2013, Article 17. Para. 3)

2. Legislative Penalties for Using Fraudulent Visas

The VHRN representative said that Vietnamese citizens who use fraudulent foreign visas may face penalties under Article 266 of the Penal Code (27 Feb. 2014). The law states:

Article 266.- Amending and/or using certificates and papers issued by agencies and/or organizations

Those who amend, falsify the contents of passports, visas, household registration, civic status registration or various kinds of certificates and other documents of agencies and/or organizations and use such papers to commit illegal acts, causing serious consequences, or have already been administratively sanctioned for such acts but continue to commit them, shall be subject to warning, a fine of between one million dong [about C$52 (XE 3 Mar. 2014d)] and ten million dong [about C$525 (XE 3 Mar. 2014e)], non-custodial reform for up to three years or a prison term of between six months and three years.

Committing the offenses in one of the following circumstances, the offenders shall be sentenced to between two and five years of imprisonment:

In organized manner;

Committing the crime more than once;

Causing very serious or particularly serious consequences.

The offenders may also be subject to a fine of between one million dong [about C$52 (XE 3 Mar. 2014d)] and five million dong [about C$263 (XE 3 Mar. 2014a)], a ban from holding certain posts, practicing certain occupations or doing certain jobs for one to five years. (Vietnam 1999, Art. 266)

The VHRN representative indicated that a Vietnamese citizen who uses fraudulent foreign visas may also face penalties prescribed by Decree No. 167/2013/ND-CP (27 Feb. 2014). The relevant sections state:

Article 17. Violation of regulations on entry, exit, transit, stay and traveling

[. . . ]

2. A fine of between VND 500,000 [about C$26 (XE 3 Mar. 2014f)] and 2,000,000 [about C$105 (XE 3 Mar. 2014g)] shall be imposed for one of the acts as follows:

[. . . ]

c. Giving untruthful declaration in order to be issued with Passport or other valuable papers in lieu of Passport, Vietnam visa, temporary residence card, permanent residence card or valuable papers on entry, exit or residence in Vietnam;

[. . . ]

4. A fine of between VND 5,000,000 [about C$263 (XE 3 Mar. 2014a)] and 10,000,000 [about C$525 (XE 3 Mar. 2014e)] shall be imposed for one of the acts as follows:

[. . . ]

b. Using fake Passport or valuable papers in lieu of fake Passport, fake visa, fake temporary residence card, fake permanent residence card or fake verification seal for entry, exit, transit or residence;

[. . .]

6. A fine of between VND 30,000,000 [about C$1,575 (XE 3 Mar. 2014h)] and 40,000,000 [about C$2,100 (XE 3 Mar. 2014i)] shall be imposed for one of the acts as follows:

Forging, record or papers for issue of Passport or other valuable papers in lieu of Passport, visa, temporary or permanent residence card;

Forging Passport or other valuable papers in lieu of Passport, visa, temporary or permanent residence card or verification seal;

[. . . ] (Vietnam 12 Nov. 2013)

3. Implementation of Legislation

The VHRN representative said that the punishment for exiting Vietnam illegally and/or using fraudulent documents varies depending on the person and the circumstances (VHRN 27 Feb. 2014). The representative explained that there are two groups of people who commonly exit Vietnam illegally: poor labourers, who, through criminal networks, cross the border to China and other countries in order to work; and dissidents who try to "escape the suppression" of the government (ibid.).

He expressed the opinion that for the poor labourers that leave illegally, the punishment would "not be serious" and that most might be able to return to Vietnam without any punishment despite the prescribed punishments in the law (ibid.). He explained that

[t]he reason is they are mostly poor, they leave Vietnam for some personal economic reasons and have no financial capacity to pay the fine. The government's officials understand their difficulties and have no will to punish them. (ibid.)

Corroborating information about the implementation of these laws against poor migrant labourers returning to Vietnam could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

In contrast to the situation with poor migrant workers, the VHRN representative said that dissidents who leave the country illegally and/or use fraudulent foreign visas may face a "high level" of punishment, including being put in jail "for years" (ibid.). He also said that in addition to the legislation pertaining to illegal exits and fraudulent documents, sometimes articles 78-92 of the penal code, related to "'crimes infringing upon national security,'" or other articles, are used to punish dissidents (ibid.). Amnesty International (AI) corroborates the use of the national security section of the penal code to imprison political activists and human rights defenders (Nov. 2013, 9).

The VHRN representative provided the Research Directorate with details of cases in which people were charged and punished under Article 91 of the Penal Code, "Fleeing abroad or defecting to stay overseas with the view of opposing the people's administration" (VHRN 28 Feb. 2014). This article states:

Article 91. Fleeing abroad or defecting to stay overseas with a view to opposing the people's administration

Those who flee abroad or defect overseas with a view to opposing the people's administration shall be sentenced to between three and twelve years of imprisonment.

Organizers, coercers and instigators shall be sentenced to between five and fifteen years of imprisonment.

In the case of committing particularly serious crimes, the offenders shall be sentenced to between twelve and twenty years of imprisonment or life imprisonment. (Vietnam 1999)

In the three most recent examples of those provided by the VHRN representative, in which people were arrested in 2009 and sentenced in 2010, the punishments ranged from three years imprisonment and three years of house arrest to four years imprisonment and four years of house arrest (ibid.).

The VHRN representative also said that Article 258 is sometimes invoked to punish dissidents (27 Feb. 2014). This article states:

Article 258.- Abusing democratic freedoms to infringe upon the interests of the State, the legitimate rights and interests of organizations and/or citizens

Those who abuse the rights to freedom of speech, freedom of press, freedom of belief, religion, assembly, association and other democratic freedoms to infringe upon the interests of the State, the legitimate rights and interests of organizations and/or citizens, shall be subject to warning, non-custodial reform for up to three years or a prison term of between six months and three years.

Committing the offense in serious circumstances, the offenders shall be sentenced to between two and seven years of imprisonment. (Vietnam 1999, Art. 258)

Several human rights organizations report on the use of Article 258 to imprison people who have peacefully criticized the government (AI Nov. 2013, 9; Human Rights Watch 3 Mar. 2014; FIDH 4 Mar. 2014). AI explains that over time, "hundreds" of activists and human rights defenders in Vietnam "have been arrested, charged, detained or imprisoned through the use of restrictive laws, or spurious charges," and have faced prison terms ranging from two years to life imprisonment (AI Nov. 2013, 5). AI notes that as of the 2013 report, 75 people remained imprisoned for the "peaceful exercise" of freedom of expression (ibid.).

Further information about the implementation of legislation punishing those who illegally exit the country or use fraudulent documents could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Amnesty International (AI). November 2013. Silenced Voices. Prisoners of Conscience in Viet Nam. [Accessed 4 Mar. 2014]

Human Rights Watch. 3 March 2014. "Vietnam: Relentless Prosecutions to Squelch Dissent." [Accessed 4 Mar. 2014]

Fédération internationale des ligues des droits de l'homme (FIDH). "Vietnam: Another Blogger Jailed for Denouncing Human Rights Violations." [Accessed 4 Mar. 2014]

Vietnam. 1999. Penal Code. No. 15/1999/QH10. Sent to the Research Directorate by the Vietnam Human Rights Network, 27 February 2014.

_____. 12 November 2013. Decree No. 167/2013/ND-CP Regulations on Sanction of Administrative Violation in Social Security, Order and Safety, Prevention and Fighting of Social Evils, Fire and Domestic Violence. Sent to the Research Directorate by the Vietnam Human Rights Network, 27 February 2014.

Vietnam Human Rights Network (VHRN). 28 February 2014. Correspondence from a representative to the Research Directorate.

_____. 27 February 2014. Correspondence from a representative to the Research Directorate.

_____. N.d. "A Short Summary About the Vietnam Human Rights Network." [Accessed 3 Mar. 2014]

XE. 3 March 2014a. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014b. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014c. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014d. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014e. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014f. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014g. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014h. "Currency Converter." [Accessed 3 Mar. 2014]

_____. 3 March 2014i. "Currency Converter." [Accessed 3 Mar. 2014]

Additional Sources Consulted

Oral sources: Attempts to reach representatives of the following organizations were unsuccessful within the time constraints of this Response: Radio Free Asia. A professor at the University of New South Wales, an international human rights lawyer and a representative of Boat People SOS were unable to provide information.

Internet sites, including: Boat People SOS; ecoi.net; Factiva; International Crisis Group; Radio Free Asia; UN - Development Programme, Integrated Regional Information Networks, Refworld; US - Department of State.