Reasons for Leaving and Unwillingness or Inability to Return
Section D of the current HKQ ("Motives") does not accurately reflect the screening criteria and improperly demands narrative answers in violation of the burden borne by the examiner to ascertain the reasons for the persecution feared.12 For that reason, IRAC recommends Section D be replaced as follows.
1. Reasons for Leaving. Question C(i)13 focuses heavily on subjective intent
rather than ascertainment of reasons for leaving related to objective incidences of past persecution or future expectations. Proper questions would elicit objective indicia of intent, such as: "When did you decide to leave Vietnam? Did you know the trip was fraught with danger? What circumstances or instances that we have already discussed, if any, or any other circumstances or instances, made you decide to risk the danger?" (If other circumstances are given, proceed with the follow-up list of questions found in Recommendation I(A)(1)(c) above.)
2. Unwillingness or inability to return. Question D(ii)1 ignores the
prosecutorial, punitive, and/or discriminatory measures which in reality face many persons repatriated to Vietnam. These governmental measures are directly relevant to the screening criteria. Where there is reason to believe that a person, due to illegal departure or unauthorized stay abroad, is liable to severe measures, the person is recognized as a refugee if his or her reasons for leaving are related to persecution as defined in the 1951 Refugee Convention and its 1967 Protocol.
Although the Socialist Republic of Vietnam has agreed to a limited waiver of prosecution relating to illegal departures in a Memorandum of Understanding between UNHCR and Vietnam, dated 16 December 1989 ("MOU"), the waiver does not cover prosecution under related but more serious criminal provisions. The MOU waiver is explicitly limited to "the provision of the law" (in the singular) against "persons who leave the country illegally", a reference to Article 89 of the SRV Criminal Code dealing with "illegal exit". Article 89 is the least severe of the legislative measures against illegal departure. In contrast, prosecution and severe punishment remain in effect for those who are considered by the government to have fled "with the intention of opposing the People's Government", or to have illegally organized or forced others to flee.16 This limited reading was confirmed by a statement of Mr. Vu Khoan, SRV Assistant Minister of Foreign Affairs, who, at the time of voluntary repatriation of 75 Vietnamese in early March 1989, reportedly announced that "the law was severe for those who encouraged or organized departures. But those who have simply left the country would not suffer [he said]."""
Thus, on the subject of prosecution under all Criminal Code provisions dealing with illegal departure activities, questioning should include such questions as:
Would you return to Vietnam? If no, why not? What do you think would happen upon your return? Why do you think that might happen? Do you
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