1601336 (Refugee)

1601336 (Refugee) [2018] AATA 4186 (12 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601336
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Melissa McAdam
DATE:12 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 12 September 2018 at 3:23pm

CATCHWORDS
REFUGEE – Protection visa – Vietnam – political opinion – opposition to Vietnamese Government – Viet Tan member – protests – anti-government activities in Australia – promoting democracy – religion – Catholic – particular social group – returned asylum seeker – church protests – confiscation of property – use of social media – fleeing abroad to oppose the people’s administration – fear of arrest – fear of torture – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 5J, 5LA, 36, 45AA, 51(3), 57(4), 65, 91, 499
Migration Regulations 1994, Schedule 2, 2.08F

CASES
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 13 June 2014 and the delegate refused to grant the visa on 13 January 2016.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant was represented in relation to the review by her registered migration agent from [agency name].
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.
SUMMARY OF CLAIMS AND EVIDENCE
Arrival Interview, 28 June 2013
The following is a summary of the claims and information provided by the applicant in her Arrival Interview with a Department officer on 28 June 2013:
a.She is of Kinh ethnicity and Catholic religion.
b.She left Vietnam because she knows Australia is a country which protects human rights, the freedom of people, freedom of religion, and freedom to say anything. People in Australia have a very good life. In Vietnam they don’t have anything like that.
c.The main reason she came to Australia is for a bright future.
d.She did not have freedom to speak about what they want in Vietnam. She cannot speak her mind in Vietnam.
e.She is Catholic and Catholics are discriminated against. The government thinks Catholics are against it.
f.She participated in a protest with the church. The protest was at [District 1] in Nghe An in about July 2012. There were a few hundred participants. She attended with her friend. It is a very Catholic district and the government did not want the Priest to conduct mass. The government abused and hit the priests.
g.There are no other reasons she left Vietnam.
h.Her travel to Australia cost $USD 8,000.
Protection visa application
The following is a summary of the claims and information provided by the applicant in her Protection visa application:
a.The applicant was born on [date] in [her home village in] Dien Chau, in Nghe An province, in Vietnam. The applicant submitted copies of her Vietnamese identity documents.
b.She is of Kinh ethnicity and Catholic religion.
c.Her parents [and specified family members] are living in Vietnam.
d.She worked in a [business] in Hanoi for six months in 2011. She worked as [an occupation] in a [business] in Vinh city for 15 months from January 2012 to April 2013.
e.She was forced to leave Vietnam because of her religion. The Vietnamese government is discriminating against Catholics because it thinks Catholics are against the government.
f.Her problems started [in] July 2012. She belonged to the parish of [Parish 1], a neighbouring parish of [District 1]. In July 2012 the Bishop of Vinh informed them that government was trying to confiscate land owned by the [District 1] parish. The Bishop called for support and [in] July there was a protest. The applicant attended the protest with friends from the church [youth group].
g.On the day of the protest she and a group of friends rode motorbikes to the rally. They were stopped by police on their way and sent back. The police took some of their details but not all as the group was big. The police did not take the applicant’s details. It was very chaotic. Some of the group were arrested and have not been released. Nobody knows what happened to them.
h.In the months afterwards several other participants whose details had been taken were also arrested.
i.The applicant’s parents were concerned about her safety and that she might be arrested, so they decided she should leave Vietnam and go to [Country 1] for a while to work. To obtain a visa she needed a Birth Certificate. She approached the authorities but they would not issue her a Birth Certificate. She went to the Village Committee but they refused to give her a copy of her Birth Certificate. Because she is Catholic the committee asked her if she had participated in the [July] protest. She didn’t dare lie so said she had. She was then questioned why she wanted her Birth Certificate and she told them she wanted to go overseas. They told her to come back the following day. She did but was sent away again this continued several times. In the end she gave up.
j.A few months later her father found her Birth Certificate amongst his papers. By then her parents had changed their mind and wanted her to go to Australia instead of [Country 1].
k.She departed Vietnam legally [in] April 2013 on her own passport. Her passport was later taken by a smuggler.
l.She arrived in Australia by boat [in] May 2013.
m.She fears she will be arrested if she returns to Vietnam. Even though most of her group were eventually released some remain in detention. She fears they may have passed her details to the police. After she arrived in Australia her parents told her by phone that a police officer went to their house to ask for her. Her parents told him that she had gone somewhere for work. The police officer did not return.
n.She cannot relocate to another part of Vietnam because she fears the Vietnamese government and they can find her anywhere.
Departmental Letter, 12 March 2014
On 12 March 2014 the Department wrote to the applicant to advise her that a report was unintentionally released on its website which contained personal information about people in immigration detention, including the applicant’s personal information. The information was available for a short time then removed from the website. The information about the applicant included her name, date of birth, nationality, gender, and details about her detention, namely when, where and why she was detained. It did not include her address or former address or any contact information. It did not include any information about her protection claims or health information.
Departmental Interview
The following is a summary of the claims and information provided by the applicant in her Departmental Interview:
a.The applicant practices her religion by attending church, praying and reading the bible. Her religion was passed onto her from her parents. She believes in God. She went to church nearly three times a day in Vietnam. Her priest was called [name]. She was baptised when she was one month old. She has had her first communion.
b.She attends church in Australia near her home. She goes once or twice a week.
c.Her parents had [number] children.
d.Her family trade and do farming.
e.Sometimes her family have some issues with the people’s committee in the village.
f.She fears the government because she fled to Australia, because she took part in a protest. The government mobilised its forces to take land belonging to [District 1] church. Her priest asked them to raise their voice to gather to protect the villagers’ community. She was one of the group who went to the church. They took part in the strike. On the way there they met the police. A group of people beat some people and took some people away. Then they took the personal details of some people to arrest them and take them away. The police did not take her name.
g.For the protest they made some banners ‘Fight against the Communists’, and ‘Return the land to the church’, and ‘Defend religious belief’, plus other banners.
h.The main point was the church wanted its land back.
i.Some of her friends were arrested. She is afraid they may have disclosed her name.
j.There was a large group of people. She wanted to get away to join the protest. She asked some people the best way to get there. She returned home. After 24 hours they could get away from the crowd and get home. They were on motorbikes. They were between her village and [District 1] when the police stopped them, hit some people and arrested some people. She went round to some places and went home in the evening. Some of her friends who lived nearby were arrested so her parents were every worried.
k.When she went home her mother told her to go into hiding. She arranged for her to go to another country because she feared the applicant would be arrested and imprisoned.
l.A lot of people were with the applicant when they were stopped by the police. There were around 1,000 people present. Some were on motorbikes and some had other transport. They were all going to the protest at [District 1]. She does not know why the police would be interested in targeting her out of so many people. The police know she was at the protest because some of her friends were arrested and she thinks they would have said she was with them.
m.Some of the people from her own group were arrested. She does not know their faces or names.
n.She is certain she will be arrested and imprisoned in Vietnam. Some of her friends who left the country like her, and returned, had problems. They were arrested. She found this out when she called home. They were accompanied back to Vietnam. She heard they were arrested but she doesn’t know what happened to them.
o.The delegate put to the applicant that the government would not know she had attempted to attend the protest, or would have any interest in her for attempting to attend the protest.
p.The delegate put to the applicant that in her initial statement she said that she herself had told the government she had attended the protest, but she had not stated this during the current interview.
q.She does not trust the government or that it will soften its attitude to the Catholic church.
r.Her parents arranged for her to flee to another country.
s.She thinks she will be arrested like her friends if she returns to Vietnam. She just knows these friends by face, not by name.
t.She joined a group, [Organisation 1]. It is a religious charity, they help people. The applicant is just a member of the group. She was not involved in any other groups. She was not involved in any activities against the government but the government did not like the charity’s activities.
u.The local government stopped her and her organisation’s charitable activities with [Organisation 1]. This happened when they helped the old people. They were told not to do that. She can’t remember when this was. It was before the [District 1] protest, a few months before. She does not know why the government stopped them doing such activities. She did not stop her charitable activities.
v.Once she asked the local authorities for a birth certificate and they asked if she was catholic and she said yes and they asked were you involved in that protest and she said yes. She did not mention this before because she did not understand the delegate’s questions.
w.The Agent stated that the USCIRF had designated Vietnam as a country of concern. There are reports of clashes between Catholics and police in [District 1] and Nghe An province. Applying for asylum in Australia may impute the applicant with a political opinion in Vietnam. She no longer has a valid passport.
Delegate’s Decision

The Delegate accepted that the applicant is Catholic and a member of the [Organisation 1] charity group. The Delegate did not accept that the applicant has come to the attention of the Vietnamese government for attempting to attend a protest in [District 1]. The Delegate did not accept that the applicant has come to the attention of the Vietnam government for belonging to the [Organisation 1] charity group. The Delegate reasoned there was no evidence to indicate that the applicant had engaged in any conduct that would be considered anti-communist or anti-government, or that would suggest she was a blogger, dissident or activist. The Delegate found that the applicant had not demonstrated anything other than superficial political beliefs and that she had not engaged in any political activities that would attract adverse attention form the Vietnamese authorities.
The Delegate found that the applicant’s fear of serious harm in Vietnam was not well-founded. The Delegate found there was no real risk the applicant would be subjected to significant harm on return to Vietnam.
Information to the Tribunal
Written Submission, 30 May 2018
The applicant’s Agent provided a written submission to the Tribunal on 30 May 2018. It states as follows:
Background
[The applicant] is [an age-] year old, Vietnamese national. She was born in [home village], Nghe An province and lived there the majority of her life.
She arrived undocumented in [Australia] [in] May 2013. We note that when she arrived she identified herself as [an alias] (born [different date of birth]). She subsequently corrected this information.
[The applicant] applied for a protection visa on 13 June 2014. As a result of legislative arrangement and s 45AA being inserted, [the applicant’s] application was converted to a Temporary Protection Visa. Her application was refused on 13 January 2016.
Summary of protection claims
[The applicant] has clearly and repeatedly articulated her strong conviction in the Catholic faith and her commitment to spreading the word of God should she be returned to Vietnam. It is clear from [the applicant’s] evidence that her beliefs are genuinely held and she has not adopted them for the purposes of strengthening her protection claims.
[The applicant] has also repeatedly articulated how her religious views and activities will result in the Vietnamese authorities attributing an anti-government political opinion to her. Her political opinion and her religion are inherently linked and should be assessed as such.
Since arriving in Australia, [the applicant] has also attended a number of protests in [City 1] and recent joined the Viet Tan party. Her actions in Vietnam show that she has always held an anti-government political opinion, she, however, is more free to express this opinion now that she is in Australia.
It is submitted that there is a real and substantial risk that [the applicant] would suffer persecution within the meaning of s 57(4) of the Act now and in the reasonably foreseeable future in Vietnam. We further submit that her individual fears of persecution in Vietnam are well-founded and on this basis we propose that she meets s.36(2)(a).
Without conceding the strength of her claims for s.36(2)(a), it is further submitted in addition and in the alternative that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal to Vietnam, there is a real risk that she would suffer significant harm, as exhaustively defined in s.36(2A), for the purposes of s.36(2)(aa).
We submit that there are five sources of persecution' that arise on the client's claims for the purposes of s.36(2)(a). These are as follows:
·    direct targeted serious harm (including threats to her life or liberty, death and significant physical harassment and ill-treatment by Vietnamese authorities — for the following essential and significant reasons:
oHer imputed and/ or actual political opinion as against the Vietnamese government, on account of:
§Her membership of Viet Tan; and/ or
§Her claim for asylum in Australia; and/or
§Her personal information being released in the Department of Immigration's privacy breach; and/or
§Her participation in demonstrations held in Australia; and/or
§Her Catholic religion; and/or
oHer religion as a Catholic; and/or
oHer membership of the particular social group, 'returned asylum seekers who departed Vietnam illegally'.
·    direct and indirect threats to her life or liberty communicated to the applicant amounting to serious harm (that is, separate and distinct from any harm that may follow those threats) – for the same essential and significant reasons above; and/or
·    direct targeted serious harm (including threats to her life or liberty, death and significant physical harassment and ill-treatment by Vietnamese authorities and/ or thugs for reasons not covered by s 5J(1)(a) but where the Vietnamese authorities may discriminatorily withhold protection for the following essential and significant reasons:
oHer imputed and/ or actual political opinion as against the Vietnamese government, on account of:
§Her membership of Viet Tan; and/ or
§Her claim for asylum in Australia; and/or
§Her personal information being released in the Department of Immigration's privacy breach; and/or
§Her participation in demonstrations held in Australia; and/or
§Her Catholic religion; and/or
oHer religion as a Catholic; and/or
oHer membership of the particular social group, 'returned asylum seekers who departed Vietnam illegally'.
·    direct and indirect threats to her life or liberty communicated to the applicant amounting to serious harm (that is, separate and distinct from any harm that may follow those threats6) by Vietnamese authorities and/ or thugs where the Vietnamese authorities discriminatorily withhold protection for the following essential and significant reasons:
oHer imputed and/ or actual political opinion as against the Vietnamese government, on account of:
§Her membership of Viet Tan; and/ or
§Her claim for asylum in Australia; and/or
§Her personal information being released in the Department of Immigration's privacy breach; and/or
§Her participation in demonstrations held in Australia; and/or
§Her Catholic religion; and/or
oHer religion as a Catholic; and/or
oHer membership of the particular social group, 'returned asylum seekers who departed Vietnam illegally'.
·    ongoing cumulative serious discrimination by Vietnamese authorities and Vietnamese businesses that causes her significant economic hardship that threatens her capacity to subsist and denies her the capacity to earn a livelihood of any kind, where that denial threatens her capacity to subsist' — motivated by the following essential and significant reasons:
oHer imputed and/ or actual political opinion as against the Vietnamese government, on account of:
§Her membership of Viet Tan; and/ or
§Her claim for asylum in Australia; and/or
§Her personal information being released in the Department of Immigration's privacy breach; and/or
§Her participation in demonstrations held in Australia; and/or
§Her Catholic religion; and/or
oHer religion as a Catholic; and/or
oHer membership of the particular social group, 'returned asylum seekers who departed Vietnam illegally'.
·    persecution of the kind referred to by the High Court in Appellant S395/20029 (Appellant S395)— whereby the applicant would be compelled to act discretely and modify her profile to hide her religion, to avoid serious harm (motivated by those reasons identified above), and where those modifications:
owould not be reasonable in all of her personal circumstances for s 5J(3); and/or
owould be a modification of a kind not permitted by ss 5J(3)(a), (b) and (c).
Without negating the strength of the client's claims for s .3 6(2)(a), in addition and in the alternative, we submit for s.36(2)(aa) that the applicant is at a more than remote risk of suffering the following instances of significant harm as a necessary and foreseeable consequence of him being returned to Vietnam:
·    arbitrary deprivation of life by Vietnamese authorities and/ or thugs; and/or
·    torture at the hands of Vietnamese authorities and/ or Vietnamese prison guards; and/or
·    cruel or inhuman treatment or punishment and degrading treatment or punishment by Vietnamese authorities; and/or
·    harm of the kind whereby she would be compelled to act discretely and modify her appearance and profile to hide her Catholic religion, to avoid significant harm.
Further to the above, for the purposes of the client's claims for s 36(2)(a), even if protection would not be withheld for one of the reasons referred to in s 5J(1)(a), we also submit that current country information confirms that effective protection measures in Vietnam would not be available to the applicant now and in the reasonably foreseeable future for s 5LA. Without conceding the strength of her claims for s.36(2)(a), it also submitted for s.36(2)(aa) and s.36(2B)(b), the level of state protection that would be offered to the applicant in her circumstances by Vietnamese authorities would not be of a sufficient standard such that there would not be a real risk that she would suffer significant harm.
For the reasons below, we further submit that there is a more than remote risk (that is, a real risk/chance) of persecution now or in the reasonably foreseeable future, and in the alternative, significant harm, for the applicant in all parts of Vietnam. However, we also submit in addition and in the alternative:
· for the purposes of the applicant's claims to meet the refugee protection criteria in s.36(2)(a) that, in any respect, any proposed relocation would not be reasonable modification of behaviour (including that he remain in the specified location indefinitely) in all of her personal circumstances for s 51(3); and
·    for the purposes of the applicant's claims to meet the complementary protection criteria in s.36(2)(aa) that, in any respect, any proposed relocation to another part of the country would not be reasonable in the sense of practicable in all of the applicant's personal circumstances for s 36(2B)(a), including that the applicant be expected to remain in that location indefinitely.
For the purposes of the client's claims in the alternative to meet s.36(2)(aa), we submit that s.36(2B)(c) does not apply in her circumstances as the risk of harm she faces is particular to her would not be attributable to her membership of the population generally.
We submit that country information is highly consistent with the client's claims and indicates that the risk of her suffering the above types of harm now or in the reasonably foreseeable future, or as a necessary and foreseeable consequence of her removal to that country, could not be described as being remote, far-fetched or fanciful!' We also refer the Tribunal to the country information detailed below and previously put to the Department. On this basis it is submitted that there is a real chance now or in the reasonably foreseeable future, and in the alternative a real risk as a necessary and foreseeable consequence of her removal to Vietnam, that she would suffer this harm.
Accordingly, we submit that based on the country information available and the applicant's evidence that the applicant meets s.36(2)(a), and in the alternative, s.36(2)(aa).
Department Refusal
[The applicant’s] application was refused on 13 January 2016. In making their decision, the delegate was satisfied that [the applicant] was born in [home village], Nghe An province and lived there for the majority of her life. They were also satisfied that she was a practising Catholic and had been since a very young age.
The Department delegate did not believe that [the applicant] attempted to join a protest in [District 1]. The key reason why the delegate doubted [the applicant’s] credibility on this point was because she did not spontaneously discuss an incident where she met with the Village Committee following the protest and discussed her attendance. As was put post-interview, [the applicant] found the interview extremely stressful and believed that the delegate's questions were focused on her attendance at the protest. It is very concerning that the omission of this one detail infected the entire credibility findings relating to this event.
The delegate went on to find that [the applicant’s] fear was not well-founded. At numerous points throughout the decision the delegate notes that [the applicant] had not 'engaged in any activity' that would raise her profile sufficiently to put her at risk of harm on return. It is our strong submission that this finding cannot stand both because of the country information and because of the change in [the applicant’s] circumstances, being her political activity in Australia. We strongly submit that for the reasons outlined below, that [the applicant] is owed protection by Australia.
Actual or Imputed Political Opinion
[The applicant] has been and will be perceived as having an actual or an imputed anti-government political opinion (which is, by association, anti-communist) on the basis of the following: her involvement in the Viet Tan party; her participation of the protest in [City 1]; her application for protection; her religion as a Catholic; her home province of Nghe An; and the Department's data breach and the information that the Department provided to the Vietnamese delegation during their visit to the Australian detention centres.
In our submission, available country information suggest that people who are viewed as holding antigovernment opinion face persecution by the Vietnamese authorities.
The Department of Foreign Affairs and Trade Country Information Report on Vietnam, from21 June 2017 (hereafter `DFAT Report'), states that the `CPV tightly controls political discourse, with very few normal avenues for political participation' and 'does not tolerate political expression against the CPV, the Government or its policies'. DFAT assesses that, 'individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities'.
The DFAT report goes on to say that:
Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government is handling of issues will result in protests being shut down, police intimidation and harassment.
DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.
Since arriving in Australia,
Vietnam has declared a US-based activist group a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarding as co-conspirators and punished.
According to an Associated Press report published in the Mercury News on 7 October 2016, a statement on Viet Tan released by the Ministry of Public Security stated that:
Viet Tan is a terrorist organization, therefore, anyone who joins, propagandizes, instigates others to join, sponsors, receives sponsorship from Viet Tan, participates in training course arranged by Viet Tan, operates under instruction of Viet Tan will be an accomplice in terrorism ... and will be dealt with in accordance with Vietnamese law.
In the 2015 DFAT report it was noted that a group of bloggers / writers / activists, many of whom were Redemptorists ... [and] allegedly associated with Viet Tan' were given jail sentences for 'plotting to overthrow the government'. This all suggests that members of this particular group are censured and would be at a high risk of harm on return to Vietnam.
More broadly, people who seek to criticise the Vietnamese Communist Party are at risk of harm. The United States Department of State in its most recent report on human rights practice have strongly condemned the lack of political freedom afforded to citizens by the Vietnamese government:
Amnesty International goes on to say:
The crackdown on freedom of expression and criticism of government actions and policies intensified, causing scores of peaceful activists to flee the country. At least 29 activists were arrested during the year, and others went into hiding after arrest warrants were issued They were charged mostly under vaguely worded provisions in the national security section of the 1999 Penal Code or detained on other spurious charges. Bloggers and pro-democracy activists were particularly targeted, as well as social and environmental activists campaigning in the aftermath of the 2016 Formosa Plastics toxic spill that killed tonnes of fish and destroyed the livelihoods of thousands of people...
At least 98 prisoners of conscience were detained or imprisoned, an increase on previous years despite some releases on completion of sentences. They included bloggers, human rights defenders working on land and labour issues, political activists, religious followers and members of ethnic minority groups.
Human Rights Watch in their 2018 World Report on Vietnam:
Vietnam frequently used vaguely worded penal code provisions during the year to crack down on dissent, including "carrying out activities that aim to overthrow the people's administration," "undermining national great unity" "conducting propaganda against the state," and "abusing the rights to democracy and freedom to infringe upon the interests of the state." Other laws, such as disrupting public order and resisting officials carrying out their public duty, are also used to repress exercise of basic civil and political liberties.
Physical assaults against human rights activists acme...frequently. In June 2017, Human Rights Watch published a report highlighting 36 incidents in which men in civilian clothes beat activists between January 2015 and April 2017, often resulting in serious injuries. Attacks by thugs on rights campaigners took place in many regions, sometimes in the presence of uniformed police who did nothing to stop the attacks.
In light of above information, we submit that the [the applicant’s] fear of persecution on the basis of her actual/imputed political opinion is well-founded.
Treatment of Catholics in Vietnam
[The applicant] has clearly articulated on multiple occasions her religious beliefs as a Catholic. She has demonstrated a level of knowledge and understanding of the doctrine which lead the Department delegate to accept that [the applicant] was a Catholic and that she was a member of a charity group, [Organisation 1]. She has also discussed previously, the link between religious organisations, particularly Catholicism, and highly politicized issues such as land rights and environmental issues.
We strongly dispute the delegate's assessment that [the applicant] has not come to the attention of the Vietnamese government for attempting to attend a protest in [District 1]. The 2015 DFAT report noted that:
The government maintains a dedicated police force for monitoring the activities and networks of religious organisations in Vietnam. The force is responsible to the Ministry of Public Security and sets and administers policies for the enforcement of state law against nonregistered religious groups who are perceived by the Government of Vietnam to threaten national stability.
Given the level surveillance in Vietnam, it is highly unlikely that [the applicant’s] religion and her activity at the protest was not known by the Vietnamese government.
Even if [the applicant] has not previously come to the attention of the Vietnamese government, we submit that on return, when considered cumulatively with her illegal departure from Vietnam and her application for protection in Australia, there is a real chance that [the applicant’s] Catholic faith will further contribute to her being perceived as 'anti-government' by the Vietnamese authorities and significantly increase the risk of [the applicant] being persecuted and/ or suffering serious harm.
The recent DFAT report states that, 'religious observance and practice only becomes an issue when it is perceived to challenge the authority or interest of the CPV and its policies'. It is our strong submission that [the applicant’s] profile means that her religious observance and practice is seen as challenging the communist party in Vietnam. [The applicant] has provided evidence in her statement provided to the Tribunal with this submission, that she believes her religious and political beliefs are closely linked. She believes the Catholic religion calls on her to advocate for justice and fairness. The reason she had to flee Vietnam was because her Parish was attending a protest against land grabbing.
We note that [the applicant’s] home province is extremely well known for Catholic communities protesting environmental and social issues. Her parish has recently been involved in protests around the Formosa disaster. The Formosa disaster occurred when a steel mill owned by a subsidiary of a Taiwan-based Formosa Plastics Group released toxic chemicals into the ocean threatening the livelihoods of local fisherman in the area. The United States Department of State's most recent report on International Religious Freedom states:
Starting in May, Catholic priests in Nghe An and Ha Tinh Provinces helped organize a series of demonstrations calling for stronger environmental protections and criticizing an international steel company over fish deaths and pollution along the coastline of several provinces in Central Vietnam. The priests also assisted parishioners in filing complaints and lawsuits against the government for financial compensation.
In our submission, the recent Formosa disaster demonstrates that Catholics are imputed to be opposing the Vietnamese authorities and strongly supports [the applicant’s] fear of persecution.
Radio Free Asia reports:
More than 4,000 Vietnamese Catholic parishioners were blocked and assaulted by police on Monday as they attempted to march to township offices to protest government inaction over their loss of livelihood following a massive pollution-linked fish kill in April, sources say.
The April spill caused an estimated 70 tons of dead fish to wash up on the shores of Vietnam's central coast and was blamed on a release of toxic chemicals from a steel mill owned by a subsidiary of Taiwan-based Formosa Plastics Group.
Marchers had tried several times in the past to demand relief from authorities in Vietnam's coastal Ha Tinh province, "but the police always stopped us," a protester named Phuong told RFA 's Vietnamese Service.
"Yesterday, we decided to march [to the Ky Anh township offices), but police had already blocked all access to the highway," she said
Over 200 policemen had been mobilized to block the march and had set up barricades, seizing protesters' banners and loudspeakers as they approached, Phuong said.
"Protesters tried to climb over the barricades, but we couldn't get through. Police used batons to beat people, and one woman was injured," she said.
New York Times reports that the outrage and the protests, organized and participated by Catholics has not dissipated in the area, however, that the government has attempted to control the media report of the protests:
At Sunday's rally, organized by a local Roman Catholic diocese, riot police officers outside the factory clashed with protesters before fleeing the scene, video and photographs circulating on social media show. Some of the protesters later climbed atop the factory's outer wall.
Demonstrators said in telephone interviews on Monday that they had attended the rally to demand that Formosa Steel close the factory and compensate them for damages. Hundreds of people from Ha Tinh have sued the company in recent weeks, many with assistance from the Catholic Church.
"The government tried to hide information and protect Formosa," said Tran Viet Hoc, a fisherman who said his income had fallen more than 70 percent because of the fish kill. "If Formosa remains in Vietnam and doesn't give us our clean environment back we will continue to protest.”
Another protester, Hoang Kim, said that he had seen more than 4,000 people at the rally and that many were Catholics. He said the protesters could have easily entered the factory compound but chose not to because they wanted only to make a point, not to vandalize property.
Online reports about the protest in the state-controlled news media were quickly removed by the Vietnamese authorities, activists said, but the rally was widely discussed on Facebook.
We note that in the majority of the reporting such as cited above, the participants of the protests are often notably described as 'Catholics', rather than protesters or victims, and religious and political issues are closely intertwined. In our submission, this recent disaster reporting illustrates that Catholics, and particularly Catholics in [the applicant’s] province, are imputed with political opinion opposing the government.
Available independent county information, as cited below, strongly supports our submission. Human Rights watch states:
The government monitors, harasses, and sometimes violently cracks down on religious groups operating outside government-controlled institutions. Unrecognized branches of the Cao Dai church, Hoa Hao Buddhist church, independent Protestant and Catholic house churches, Khmer Krom Buddhist temples, and the Unified Buddhist Church of Vietnam face constant surveillance
In February, the European Parliament (EP) Subcommittee on Human Rights visited Vietnam. The EP delegation recognized that Vietnam has made economic and social progress... but voiced concerns over Vietnam's record on civil and political rights, including freedom of expression, association, religion, or belief.
The United States Commission on International Religious Freedom (USCIRF), a Federal Government body, has listed Vietnam in their "Tier 1" category of "Country of Particular Concern (CPC)" in their 2018 Annual Report. The report stated:
The government's crackdown on religion, expression, association and assembly was nationwide, suggesting a concerted effort to silence critics and peaceful activists while the world was watching. Vietnam intensified its harassment, arrests, imprisonments and torture of peaceful activists, dissidents, and bloggers, including persons of faith targeted by the government and nonstate actors for their religious practice or religious freedom advocacy.
The US State Department also notes that the difficulty is greater for Catholic groups in rural or remote areas:
According to many Catholic bishops, parishes in remote areas with majority ethnic minority populations faced difficulty registering, uneven and inconsistent enforcement of national laws, and a lack of accountability on the part of provincial authorities. In the Central Highland's Kon Thin Province, a Catholic priest stated that in January local authorities planned to demolish an unregistered house church. The priest said that authorities were deterred after more than 1,000 followers rallied in protest on the day the church was scheduled to be taken down. In March the Catholic leadership publicized an internal document from the Kon Turn provincial leadership directing local authorities to close 22 unregistered house churches. In September the Catholic leadership stated that Kon lion authorities halted the plans and entered into dialogue with the church regarding construction of new worship facilities.
We note that the Catholic community in Nghe An province, [the applicant’s] province, has been targeted throughout 2017. As Radio Free Asia reports:
In October, two priests from Vinh diocese in central Vietnam were surrounded and threatened by a mob of 300 people waving red. flags, while in May, hundreds of thugs in Nghe An attacked a group of Catholic parishioners, including women and children, sending dozens to the hospital, sources said in earlier reports.
In our submission, above country information strongly supports the applicant's fear that she will be persecuted upon her return, due to her Catholicism.
Returning as a failed asylum seeker/ involuntary returnee
[The applicant] fears that she will face further harm from the Vietnamese authorities as a result of her claim for asylum in Australia. As is discussed further below, due to the Department allowing the Vietnamese authorities to visit Australian Immigration facilities whilst [the applicant] was held in detention, and also as a consequence of the Department's privacy data breach, the Vietnamese authorities will be aware that [the applicant] sought protection in Australia.
Consequently, we submit that in light of country information, there is a real chance that [the applicant] will be seriously/significantly harmed upon her return to Vietnam, on the basis of her failed attempt to seek asylum in the west.
We note that under the Article 91 of the Vietnamese Penal Code, 'fleeing abroad or defecting to stay overseas with a view to opposing the people's administration" is an offence that can be sentenced up to twenty years. It is our submission that [the applicant’s] application for asylum in Australia will be perceived as political dissent and having provided evidence to the Australian authorities, which would be understandably viewed as opposing the Vietnamese Government.
Country information confirms that unauthorized departure from Vietnam and providing foreign countries with evidence contrary to the Vietnamese authorities' interests has very serious consequences. Father Ly, a Catholic priest, was charged under Article 88 of the penal code and imprisoned because he submitted evidence about religious restrictions in Vietnam to the United States Commission on International Religious Freedom. He has continued to be monitored by the authorities and has been imprisoned on numerous occasions over the past decade.
Australian media has reported the following concerning the practices of detaining, charging, and jailing returnees by the Vietnamese government. The Sydney Morning Herald has reported that:
Asylum seekers who were returned to Vietnam by the Australian Navy last week are believed to be being interrogated at a police-run detention centre in a coastal province north of Ho Chi Minh City.
According to sources in the Australian Vietnamese community, all adults who were on-board a boat intercepted somewhere north of Australia have been detained for questioning for the past week.
…
According to the state-run Bin Thuan Online, there is a "temporary police detention centre" in Phan Thiet. The publication boasted in August 2013 about how "ebullient and aggressive" youth had been "enlightened" by the centre's police superintendents before being released as part of a national amnesty.
The Guardian reported that a group of Vietnamese asylum seekers were intercepted on water by the Australian authorities and forcibly returned to Vietnam where they now face jail terms for attempting to flee:
Four Vietnamese asylum seekers forcibly returned to their country by Australia will appear in court on Thursday, facing up to seven years in jail for trying to flee.
Four others have already been jailed for between two and three years for illegally leaving the country, despite written assurances from the Vietnamese government — according to the commander of Operation Sovereign Borders — that they would not be charged or punished for leaving.
…
One of those returnees reported that an Australian immigration official told the group on the ship that the Vietnamese government would not arrest or imprison any of them, but would help with education and community reintegration.
A Vietnamese security official boarded the boat and confirmed that no one would be arrested The commander of Operation Sovereign Borders, Maj Gen Andrew Bottrell, told Senate estimates in May the Australian government had been given "assurance" in writing by the Vietnamese government "that there would not be any retribution for their illegal departure from Vietnam"
In light of these reports, we note that Human Rights Watch has expressed grave concerns about the Vietnamese government's practice of prosecuting returned failed asylum seekers and jailing them for people smuggling offences:
The Australian government has said that "any potential criminal investigations or proceedings for people smuggling-related offenses are a matter for the Vietnamese government." But these individuals were not punished for unlawfully bringing people into another country with the purpose of financial or material benefit — the definition of people smuggling under international law They were punished for leaving their own country and helping their families, relatives, and friends who willingly went with them.
Human Rights Watch have also made clear that assurances given by the Vietnamese government were broken soon after the arrival and cannot be relied upon:
Two of those returned told Human Rights Watch that before being sent back to Vietnam, an Australian immigration official told them that they would not be arrested or imprisoned and that the Vietnamese government would facilitate work for them and school for their children. On arrival at Tan Son Nhat airport, a Vietnamese official confirmed to the group in front of the Australian consulate s' representatives that they would not be arrested or detained However, as Vietnamese authorities transported the group back to their hometown, police took Tran Thi Lua, Nguyen Dinh Quy, and Nguyen Minh Quyet to an unknown guest house in Phan Thiet and detained them there for 24 days without bringing charges or permitting them access to a lawyer.
In May 2015, Australian border officials testified before an Australian Senate Estimates Committee that the government had been provided written assurance that these boat people would face "no retribution for their illegal departure from Vietnam." The Australian government has issued no public statements on the first round of convictions or the upcoming trial According to BBC Vietnamese, the Australian Consulate in Ho Chi Minh City declined to comment on the trial because the consulate "only deals with cases related to Australian citizens."
In this regard, we also note that Amnesty international published a following Public Statement:
Eight people forcibly returned by Australia in two separate cases in 2015 have been prosecuted and sentenced to between two and three years' imprisonment for attempting to flee the country to seek asylum. Between them, they have seven children aged between four and 20 years. The detention and imprisonment of an individual for exercising his/her right to seek asylum are arbitrary and unlawful. The Vietnamese authorities must immediately and unconditionally release the four individuals currently in prison and under house arrest and vacate the convictions of all eight.
Should [the applicant] be detained, even for a short period, following her involuntary return to Vietnam as a failed asylum seeker in accordance with the above, we submit that conditions in Vietnamese prisons and detention centres are such that even detention for a short period would meet the threshold of serious and/or significant harm. Available recent country information confirms the dismal conditions of prisons and detention centres in Vietnam.
We submit that consideration must be given to the numerous sources that indicate that returnees are at risk of harm and/or persecution from the Vietnamese authorities, in the form of arrest and detention, despite assurances from the authorities that those who had departed Vietnam illegally and/or sought asylum in the west would not be punished. DFAT's advice that it is unaware of failed asylum seekers being charged with offences, as 'returns to Vietnam are usually done so on the understanding that they will not face charges as a result of their having made asylum applications', must be considered in this context. We submit that it cannot be discounted as remote that [the applicant] would be detained, and may be charged with an offence, if returned to Vietnam. Should she be detained, she risks experiencing cruel and inhuman treatment as a result of the prison conditions.
The DFAT report states that:
There are reports of mistreatment of suspects during arrest and detention. An Amnesty International report published in July 2016 documented several cases of torture and physical abuse of prisoners of conscience by police and prison officials.
There were reported cases of individuals beaten to extract a confession, although specific numbers are difficult to ascertain due to a lack of transparency.
The United States Human Rights Report for Vietnam 2016 states as follows:
Insufficient diet and unclean food, overcrowding, lack of access to potable water, and poor sanitation remained serious problems. According to Amnesty International and former prisoners of conscience, prison authorities singled out political prisoners, particularly in the Central Highlands and sensitive ethnic minority areas, for physical abuse, solitary confinement, denial of medical treatment, and punitive prison transfers.
…
Serious health conditions exacerbated by poor or delayed medical care, forced prison labor, poor sanitation, and malnutrition caused most deaths in prison. Some prisoners' family members alleged death resulted from lethal force by authorities (see section 1.a.)...
Religious leaders and former prisoners of conscience reported Ministry of Public Security officials did not permit prisoners to conduct religious services or receive visits by religious leaders. Family members and some former prisoners reported certain prison authorities did not permit prisoners to have religious texts while in detention...
Reports indicated officials or other agents under the command of the Ministry of Public Security (MPS) committed arbitrary or unlawful killings, including reports of at least 14 deaths of persons in custody, as well as several high-profile allegations officers abused use of lethal force.
Serious health conditions exacerbated by poor or delayed medical care, poor sanitation, and malnutrition caused most deaths in prison. Some prisoners' family members alleged death resulted from lethal force by authorities.
Human Rights Watch also corroborates these findings, in their 2018 World Report on Vietnam as follows:
Police brutality, sometimes leading to deaths in police custody, was common during the year. In May 2017, Vinh Long police arrested Nguyen Huu Tan on charges of conducting propaganda against the state. Police later claimed he committed suicide with a knife left in the interrogation room by a policeman. His family protested, pointing out many discrepancies between what they saw on his body and a blurry police video recording shown to them briefly.
In August, Tran Anh Doanh told a reporter that police in Son Tay, Hanoi, beat him severely to force him to confess to a theft charge. In September, Vo Tan Minh died in police custody in Phan Rang-Thap Chain, Ninh Thuan province, and his family found bruises on his back legs, and arms. The police initially claimed Vo Tan Minh was involved in alight, but later suspended five police officers and opened a case of "using corporal punishment."
It is our strong submission, that given [the applicant’s] profile she is likely to be detained on return to Vietnam. If she is detained, even for a short period of time, she risks being harmed and experiencing torture and other cruel, inhuman or degrading treatment or punishment.
The Department of Immigration's privacy breach and visit of the Vietnamese officials
We submit that the risk of [the applicant] facing harm on return has been increased by the actions of the Department of Immigration since her arrival in Australia. [The applicant’s] personal details were made publicly accessible due to the Department of Immigration's privacy breach. In relation to the Department's data breach, The Guardian Australia reported that:
The potentially global access shows the file could have been copied thousands of times since the breach occurred It is not known how many times the personal details of asylum seekers were accessed within the file.
The document was also accessed in the United States, Canada, Fiji, India, South Korea and several of the downloads came from anonymised locations.
While Vietnam is not specifically identified as a location where the file was accessed, it is our submission that it is highly plausible that the file would have been accessed by the Vietnamese authorities through an ‘anonymised location' or through the unauthorised sharing of the file, particularly given the length of time the information was publicly available and the States' practice of internet monitoring.
In his investigation into the Department's data breach, we note the Australian Privacy Commissioner, Timothy Pilgrim, found that:
The department took 13 days to request the information be removed from the Internet Archive after it was informed of the breach by Guardian Australia. This left the data publicly exposed for 16 days after the breach was reported. This finding directly contradicts claims made about the accessibility of the file by the immigration minister after the breach was reported.
[…]
The revelation that the document was available on the Internet Archive website for 13 days
without any action from the department was also singled out by Pilgrim.
It is entirely conceivable that Vietnamese authorities would have gained access to the document and its contents. We note that there is an abundance of country information confirming that the Vietnamese authorities have undertaken constant monitoring of internet traffic, both internally and internationally, for many years.' In 2012, Reporters without Borders confirmed that 'paranoid Vietnamese authorities [favoured] surveillance over increased filtering'.
Further, while [the applicant] was in detention, the Australian government permitted Vietnamese officials to visit and meet with Vietnamese detainees. We refer to the following ABC report concerning the visit to the detention centres, where some of the asylum seekers who were questioned reported that they were accused of treason:
A group of Vietnamese asylum seekers is set to be deported from Darwin, a local asylum seeker support group has said.
It follows revelations last month that the Immigration Department had allowed Vietnamese officials into Darwin immigration detention centres to question people.
The Darwin Asylum Seeker Support and Advocacy Network (DASSA1V said there was a group of about 20 Vietnamese people at the Wickham Point Detention Centre.
It said the group was questioned by Vietnamese police for several hours last month, and some were accused of treason...
[Deleted]
While [the applicant] herself was not questioned, we suggest that the fact that the Vietnamese officials were permitted to access the detention centers 'to help identify people' would suggest that her details may have been shared with the officials.
In relation to these actions, we note that the UNHCR states the following about confidentiality of individual protection cases (IC):
All categories of IC information should be kept strictly confidential. The potential risk to the safety of ICs and their families or associates is greatest where information relating to their identity or asylum claims is made available to the authorities in the country of origin. Even the mere fact that an IC has sought asylum elsewhere may have adverse consequences for the IC and/or her or his family and associates in the country of origin.
This position was also reflected in the PAM3 Guidelines around the time of the Department's data breach:
Information provided in a PV application is inherently sensitive in nature and must be treated with great care. Mishandling of the disclosure of information in a PV application may result in an applicant becoming a refugee sur place under the Refugees Convention or may endanger family, friends or associates in the home country.
In particular, it is crucial that no information that could (dentin, a PV applicant or the applicant's family or associates be released to the country (including representatives or nationals of that country) against which the protection claims „are made. Identifying information should also not be disclosed to any other country (including representatives or nationals of that country) which may disclose the information to the country against which the protection claims are made.
We submit that, under such circumstances, the actions of the Department of Immigration in allowing the Vietnamese officials to access the detention centres where many Vietnamese detainees were held including those who had expressed their intention to seek asylum, and to question those detainees, was a gross breach of the confidentiality owed to them as asylum claimants. Such confidentiality is a central foundation of the refugee status determination system. We respectfully suggest that the presence of the Vietnamese delegation, which has been referred to as being part of the Vietnamese police, would serve of itself to indicate an interest in those who have travelled to Australia to seek asylum. The lack of transparency from the Department of Immigration concerning the full circumstances of the visit and what information was released from the delegation is of concern.
In our submission, it cannot be dismissed as remote that, under such circumstances, some information of [the applicant] such as her identity were made known to the Vietnamese authorities and this would give her an additional profile and places her at greater risk of mistreatment if returned to Vietnam.
We submit that [the applicant’s] act of seeking asylum—which due to the Department's privacy data breach and Australian authorities' willingness to provide the Vietnamese authorities access to the detention facilities and to the Vietnamese detainees, will be known to the Vietnamese authorities —itself will be viewed by Vietnamese authorities as an act of political opposition, due to the asylum seeking process necessarily involving disclosing information to the Australian Government about the actions of the Vietnamese Government adverse to the Government. In this regard, we note that Father Ly, a Catholic priest, was charged under Article 88 of the penal code and imprisoned because he submitted evidence about religious restrictions in Vietnam to the United States Commission on International Religious Freedom. He has continued to be monitored by the authorities and has been imprisoned on numerous occasions over the past decade.
Relocation and Effective State Protection
We submit that relocation and effective state protection are not available to [the applicant]. The most recent DFAT report confirms this as they state, 'the strong and effective Vietnamese state means that there are few options for internal relocation to seek protection from state authorities.’

The following documents were attached to the submission:
a.Letter dated [in] May 2018, from [Father A of Church 1], stating that the applicant has been a regular parishioner for the entirety of her time in [City 3]; that she takes part in church and community activities.
b.Letter dated 16 May 2018, from [Mr A], Viet Tan [office bearer at City 2 branch], stating that the applicant is a member of the Vietnam Reform Party (Viet Tan), and an active member of the [specified branch] (including [City 3]). She is involved in numerous projects and activities to promote Internet freedom, human rights and pro-democracy in Vietnam. The Vietnamese government has declared Viet Tan a terrorist organisation and warned that any Vietnamese involved in the group will be punished as co-conspirators.
c.A further statement from the applicant.
The statement from the applicant contains the following:
I arrived in Australia [in] May 2013. On 13 June 2014, I applied for a protection visa (subclass 866). I applied for protection on the basis of my Catholic religion. In Vietnam, I was a member of [Organisation 1] and I attempted to attend a protest in [District 1]. I understand that the Department accepts this about me.
…
Catholic Religion
Being a Catholic is very important to me. I have a strong faith in Jesus Christ. My religion makes me want to do good in my life and the lives of others.
In Vietnam, I attended my local Catholic Church [church name]. We would go to Church every weekend. Most nights I would also go to the Church - the Church would organise bible readings and prayers. The Father would talk to us about lots of things. He would talk about equality and the way that people were treated in Vietnam. In our area, the government was trying to take land that was owned by the Catholic Church. Our priest would talk about this and how it was unfair. He would criticise what the government were doing. Our priest would also talk about being an active citizen and engaging in social issues. He would often do this by picking certain readings from the Bible that would illustrate his point.
My province in Vietnam is very politically active and is closely monitored. Recently, I know they have been protesting environmental issues that have occurred on the coast of Vietnam, including the Formosa disaster. I know that my local parish was involved in these protests. Some people were arrested and I think some people were beaten by security forces. I think because of this there is a greater focus on Catholics in my home province and the government is worried about them.
Being Catholic in Vietnam is often linked to politics. The Catholic religion talks about things like fairness, equality and justice. I think this is often anti-government in Vietnam.
Since moving to Australia, I have continued to practice my religion. I am currently attending [Church A] in [location]. I go to Church maybe once or twice a week. I usually go on Sunday for mass. During the week, if I have time I try to read the Bible.
I like to speak … to people about being a Catholic and what it means to me. It is important to me that people know about the Catholic faith and how important it is. If I was to return to Vietnam, I would keep practising my religion as a Catholic. I cannot imagine a world in which I would not have faith in Jesus Christ.
I have already outlined the reasons why I left Vietnam. I know that the Department was concerned that I did not spontaneously mention the fact that I spoke to the Village Committee after the protest during the interview. I did not think that the interviewer was asking me questions about this. I am happy to talk about this incident further with the Tribunal.
Political Activity in Australia
Since arriving in Australia, I have become more politically active. I have attended a number of anti-communist demonstrations in [City 1]. They were organised by [Vietnamese organisation 1]. I believed in democracy and I wanted this for Vietnam. I don't want Vietnam to be a communist country any more. I feel like Vietnam is a dictatorship. Since arriving in Australia, I have seen the importance of human rights and how bad the situation is in Vietnam. I want to fight for my country's future.
I become a member of the Viet Tan Party (Vietnam Reform Party) more than a year ago. I found them through [social media]. They are an organisation that fights for freedom and democracy for Vietnamese people. They were created on 10 September 1982. Mang Co Minh is the founder. I understand that in Vietnam, Viet Tan is thought to be terrorists. They try to get support from foreign countries to participate in their movement for democracy in Vietnam. I send messages to people in Vietnam about Viet Tan to try to get them involved in the organisation. Viet Tan are based in Sydney but we have [number] people in [our city] who support Viet Tan. We meet every month. Sometimes I attend the meetings in [City 2] in person. We try to raise money to send to Vietnam to send to people, groups and Churches who are struggling for freedom and demanding justice and equality.
When I was in Vietnam, I did not agree with the government but I did not actively fight against them. The first time I took a stand against the government was when they were taking our land and my Parish decided to protest. Since arriving in Australia, I have been exposed to many different groups that are protesting for the rights of people in Vietnam. When I was in Vietnam, I was always too afraid to participate in demonstrations because I thought I would be arrested. In Australia I have the freedom to raise my voice; I feel safe to express my political opinion.
Parent's situation in Vietnam
The police and members of government continue to contact my parents. I think they visit their house one a month or once every two months. They ask my parents to keep them updated on where I am living and what I am doing. My parents always say that I am far away from home and they don't know where I am. I think my parents are very worried about my health so they don't tell me much about these visits. They just say that the police and local authorities have disturbed them. It makes me so sad to think I am causing my parents all these problems.
Data Breach
I was affected by the data breach. I am very concerned about this. I am certain that this means that the Vietnamese government will know that I travelled to Australia to seek asylum. I think this means that when I return the government will know that I am anti-government. They will
know what my opinion is.
While I was in detention, I know that the Vietnamese government visited and interviewed other detainees in detention. I thought that my information was confidential but now it seems that the Vietnamese government know about my identity and everything about me. L am very afraid that
I would be maltreated or harassed because of this.
Fear of Return
I am very afraid to return to Vietnam. I know that many people who have been returned to Vietnam have been mistreated.
I also have [a medical condition]. I got it from my mother in utero. I am being treated by a doctor in Australia. I take medication every day to treat my illness. I am concerned about my ability to
continue to access this treatment if I return to Vietnam.
I am a Catholic who has been a member of Viet Tan in Australia. I am certain that I will be harmed or tortured on return.
Tribunal Hearing, 5 June 2018
The applicant appeared before the Tribunal on 5 June 2018 and 16 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The following is a summary of the information provided by the applicant at the hearing on 5 June 2018:
a.She has been living in [City 3] for about two and a half years.
b.She can’t go back to Vietnam because she protested against the government and believes she will be arrested. She protested by participating in a demonstration in [District 1] in 2012. At the time the government prohibited the parish from having religious activities. The Priest requested they go to the parish to protect the church. All the members of the youth group went to the demonstration. While they were riding to the demonstration they were stopped by police. The applicant’s brothers and sisters are in the youth group but none of them attended the demonstration. Her brothers were ill on the day. It was a [specified day].
c.The police stopped them after they had travelled for about [time], in an area called [Location 1]. The police made them return home. They struggled with the police for a while and a few hours later they returned home. There were about 300 to 400 people present. There were also many police. They took information from a number of demonstrators and beat some people. They also arrested some people. About two or three people were arrested. She did not know their names, just their faces.
d.There were many youths in the youth group, about 200. They met together at the church in [Parish 1] parish. The church had about [number] adherents, from the applicant’s village and other surrounding areas.
e.A few months after the demonstration she went to the police station to ask for her birth certificate but they would not provide one. She could not get an original birth certificate. She asked for a copy but the police would not do this for her. They asked her if she participated in the demonstration on that day and she said yes. They told her to go home and return later but when she came back they still would not provide the birth certificate to her.
f.After this her parents became scared and worried. They wanted her to leave the country. About five months after she went to the police station she left Vietnam. Nothing happened to her in that 5 months.
g.She told the police she was involved in the [District 1] demonstration but they allowed her to go home. They didn’t cause her any trouble, but they could cause her trouble. She thought she had to leave Vietnam because some of her friends had been questioned by the police and her parents were very worried. They thought the police would question her sooner or later. The police would question her because they knew she had participated in the demonstration. They think she is one of the people who cause trouble and confusion in society. They would ask her what did she do and where did she do it and what was her position in the church.
h.She did not know the names of her friends who were questioned by the police. They were arrested and she doesn’t know what happened to them after that. They were arrested while in the demonstration by the police.
i.The applicant’s youth organisation helped poor people and if there was a function or event they would get together to assist the church.
j.Her family in Vietnam are not political. Her family does not have any problems in Vietnam. If someone is political in Vietnam their family will be affected. That family will not be allowed to do business and they will be oppressed.
k.After she arrived in Australia she participated in a group called Viet Tan. She studied about them and then participated with them. She has participated with them for a year. By study she means she found out what the group is doing. In Vietnam they say Viet Tan is a terrorist group. But she found this is not the case. She found information about Viet Tan through Viet Tan’s [social media] site on the Internet. She first searched for information about Viet Tan while she was in immigration detention in Australia in 2014. She was released from detention at the end of 2014.
l.She first participated with Viet Tan sometime in mid-2017. She knew someone in Viet Tan and she told the person she wanted to join the group. The person she knew was some main staff of Viet Tan in [City 2], [Mr A] and [another person]. She knew them because she found them in [social media]. They had some articles and she found the articles very good and close to her ideals so she found them. Through [social media] she talked to them and asked them questions. She also texted them. She first contacted them in mid-2017. After talking to them they knew she also wished Vietnam to be a free country and they supported her idea.
m.Occasionally she travels to [City 2] to have a meeting with Viet Tan. She first did this [last month]. She has not travelled [there] any other times for meetings.
n.She came [City 2] last May because the Viet Tan [office bearer 1] [Mr B] travelled to Australia. Viet Tan in [that city] had a weekend meeting with him in [a location]. At the meeting they talked about Viet Tan activities and how to carry out Viet Tan activities. They also spoke of their experience and their wishes. Nothing else happened at the meeting. She was present on both days of the meeting, from start to finish. There were about 50-60 other people present. She cannot be more specific what happened at the two-day meeting because she signed a confidentiality agreement with Viet Tan.
o.They have Viet Tan meetings on the Internet, once every month. She also helps raise funding for Viet Tan by selling [items]. Every month she and the other [local] members contribute $20 for Viet Tan. She distributes articles from Viet Tan [social media] through her own [social media] so her friends can read them. At the monthly meetings they get together and meet via video-link. There are many things she can’t speak about because she promised not to disclose anything.
p.She researched Viet Tan in 2014 but waited til mid-2017 to join them because she wanted to find out if it really is a terrorist group. While she was in the detention centre she could not find out much about Viet Tan. She could only read about it on the Internet. She does not know of any other opposition groups in Vietnam. She did try to research about other parties but the main one is Viet Tan.
q.She joined Viet Tan in May 2017. She was first tested to see if she was loyal and then she was allowed to join. She became an admin member and then a public member. There are [number] other members of Viet Tan in [her city].
r.She knows about the Formosa incident in Vietnam and that the church goers were supporting the protests and a number of people were arrested. Many people have been suppressed by the government, not just the church or Catholics. She does not know of any other reports of political events in Vietnam.
s.Every year on 30 April in Australia she has travelled to [City 1] for a demonstration [at Location 2]. She has done this three times, firstly In 2015 on 30 April. She flew to [City 4] and then travelled by bus with the [Vietnamese organisation 1] to [City 1] on the morning of the 30^th and returned to [City 4] that afternoon. The next time she went to [City 1] was 30 April 2017 and again this year.
t.She departed Vietnam legally on her own passport, not illegally. She stayed in [Country 2] for one week and then went to [another country]. She could not remain in [Country 2] because she would need to get permission from the government.
u.The Vietnamese authorities will know she is a member of Viet Tan because this is publicly known, and her photo is on the Viet Tan website. There are photos of herself with the Viet Tan emblem and with other Viet Tan members. When she participated in the [City 1] demonstration photographs of her were put on the Viet Tan website. They are on the official Viet Tan website, not the Viet Tan [social media] site. She will submit the photos and website to the Tribunal. She also has photos of herself at the [City 1] protest she will submit.
v.When she was in immigration detention her information was disclosed to the Vietnamese authorities so she believes she will be arrested if she returns to Vietnam. Her name and age were disclosed.
Written Submission, 19 June 2018
On 19 June 2018 the applicant’s Agent sent a written submission to the Tribunal. Relevant excerpts of the submission include the following:
Political Opinion
As has been put both at hearing and in [the applicant’s] statement, she has attended a number of protests in [City 1] in opposition to the Vietnamese government and joined the Viet Tan party.
Viet Tan
[The applicant] gave considerable evidence at hearing regarding her membership of Viet Tan and what it entails. She advised at hearing that in order to become a Member she was first tested to see if she would be loyal to the organisation prior to being allowed to join. She instructs that she then signed a membership agreement with Viet Tan which was given to the [named] branch and has now gone to [an international] office. We are instructed that she no longer has a copy of this membership agreement and has been advised that she is unable to get a copy of the membership agreement as Viet Tan do not want a copy of the membership agreement provided to anyone outside of the organisation.
She has advised at hearing that she disseminates information by posting articles on her [social media] page. She also contributes $20 a month to the organisation. We are instructed that this contribution is made in cash. She also gave evidence at hearing that she engages in fundraising by selling [items]. She has advised that she has attended monthly meetings as well as a meeting in [City 2] where the [office bearer 2] of the party, [Mr B] attended. We have attached to this submission photographs of this meeting which show [the applicant] with [Mr B]. We have blurred the faces of the other attendees for privacy.
[The applicant] also instructs that following her monthly meetings, she attend lessons run by Viet Tan which cover the history of the party, how to organise activities and how to improve the party.
While giving her oral evidence, [the applicant] spontaneously advised that she has signed a confidentiality agreement with Viet Tan which limits the information she is able to provide to the Tribunal. The Member put considerable pressure of [the applicant] to provide further information about her membership of Viet Tan advising her that the hearing was confidential and she could issue a non-publication order. [The applicant] reiterated that 'there are many things in the meeting I can't speak about' when she was pressed for considerable detail about what occurs at monthly meetings. We submit that it is completely reasonable for her to not disclose this information and other information about Viet Tan. She has signed a confidentiality agreement with Viet Tan and had earlier advised in the hearing that as part of her membership they tested her to see if she would share confidential information. It is clearly a key tenant of membership of the organisation. It is our strong submission that it would not be reasonable to draw an adverse inference from her refusal to disclose confidential material to the Tribunal. Instead, as was submitted at hearing her refusal to disclose this information is evidence of her loyalty to the organisation and her genuinely held political belief.
Further to her considerable oral evidence at hearing, she has now provided photographs of her which have been published on [social media] by Viet Tan. She has previously provided a letter from Viet Tan in support of her membership of Viet Tan. This is considerable, independent evidence of her membership of Viet Tan. The publically available photographs published on [social media] also mean that there is a real risk that the Vietnamese government will know that she is a member of Viet Tan.
It is our strong submission, that there is sufficient evidence before the Member to make a finding that [the applicant] is a member of Viet Tan.
Protests in [City 1]
We again reiterate that [the applicant] has provided oral evidence that she has participated in three demonstrations in [City 1] to mark reunification day held on 30 April each year. We have provided with this submission photographs of the most recent protest where [the applicant] is seen wearing a yellow and red scarf which represents the flag of South Vietnam. These photographs have been published on [social media] and are publically available and again put her at risk of harm on return to Vietnam.
Protest in Vietnam …
As [the applicant] advised at hearing, her siblings did not attend the protest in Vietnam. We acknowledge that earlier in the hearing she said that 'all the members of the youth... the youth members' got together and prepared to do the demonstration. [The applicant] instructs that she did not understand the implication of the question. While she does not recall now what she thought the Member was asking her, we note that one possible alternative is that [the applicant] was confirming that all of the people who got together were members of the youth organisation and not that all the members of the youth organisation were in attendance.
She also instructs that as she said at hearing it was not compulsory for everyone to attend the demonstration. Her siblings were not able to attend the hearing because they were busy. She instructs that in Vietnamese the word for sick and busy are easily confused as they are ban and banh. She believes this is why the interpreter said her brother was sick. We submit that this difference is merely a miscommunication in translation.
With regards to the Member's other concern that at the hearing she advised that only 300— 400 people attended the demonstration, [the applicant] instructs that since her Department interview she has thought further about the number of people at the protest and believes that it was only 300 — 400 people. She is correcting that information in good faith.
While we acknowledge that these are slight inconsistencies in her oral testimony, it is our strong submission that they should not go to her credibility as they have been explained above. They also relate to largely periphery issues and the remainder of her evidence about the protest has been consistent between the Department interview and the Tribunal hearing. It is not reasonable to disbelieve a particular applicant solely due to minor inconsistencies in evidence.
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Further Country Information
We also rely on a recent report from Human Rights Watch which confirms that hundreds of people have been detained in a crackdown in Vietnam following protests regard long-term leases in special economic zones. The report states:
Police in several cities are alleged to have used unnecessary and excessive force to disperse the protests, which had spread across the country over the weekend. The most violent clashes took place in Binh Thuan province, where protestors threw rocks and Molotov cocktails outside the provincial People's Committee headquarters. Riot police employed tear gas, smoke bombs, and water cannons to disperse the protesters. According to police, 107 people were detained over the following two days as part of an investigation launched by the Ministry of Public Security. The deputy public security minister directed Binh Thuan authorities to "strictly punish” the ringleaders.
Activists in a number of cities posted on social media reports of police beatings, detentions by plainclothes officers, and the use of Long Range Acoustic Devices (LRADs), which emit a loud, shrill noise intended to indiscriminately disorient anyone within range. A protester in Ro Chi Minh City told Radio Free Asia: "We were protesting peacefully and didn't incite anyone. But they grabbed me and pushed me onto a bus on Le Duan Street, with five or six policemen beating me the whole time."
Dozens of protesters were detained in Ho Chi Minh City, including an American citizen who had tweeted about clashes with police and remains imprisoned Authorities in Hanoi also rounded up over a dozen demonstrators onto buses. State media announced that several people were arrested for organizing "illegal" protests, including two men in Binh Duong province who allegedly printed thousands of protest flyers.
Many of those detained were interrogated and later released, while others are still being held Some activists reported being beaten during their time in police custody."
The report further highlights the way in which political activists are treated in Vietnam.
Charitable activities in Vietnam
[The applicant] is no longer relying on these charitable activities as the basis for fearing harm on return to Vietnam other than as it relates to her fears relating to her religion. The organisation works with sick and impoverished people and was part of her involvement with her Church in Vietnam. While she instructions that she would continue this work on return to Vietnam, the organisation does not have any anti-government sentiments and is purely charitable. She there is no longer advance any fear of harm on return to Vietnam on the basis of her membership of this organisation other than as it relates to her fear of harm on return because of her Catholic religion.
Section 5J(6): conduct engaged in by the person in Australia
At two separate points in the hearing, the Member advised [the applicant] that if she was not satisfied that [the applicant] had been involved in Viet Tan and the demonstrations in [City 1] for reasons other than strengthening a refugee claim, she must by law disregard that activity in Australia in accessing her refugee claim. The Member noted that [the applicant] engaging s 5J(6) was a 'concern that arises on the evidence'.
On both occasions when this was put to her [the applicant] spoke spontaneously and passionately about her desire for Vietnam to be a free country which is not ruled by the communist party. She spoke of how she was committed to human rights. [The applicant] has consistently advised that she participated in a protest in Vietnam. There is also clear country information which shows the inherently political nature of the Catholic Church in [the applicant’s] area. It is clear that being interested in politics is not something that is new to [the applicant] or something that she only started to engage with in Australia. However, as she said at hearing:
When I travel to Australia, I know that I can speak freely and I can do whatever hike legally. I won't be worried about being arrested. All of these things I won't be able to do back in Vietnam.. .I carried out these activities because I believe that they are the right thing that I need to do. The things that I do I wish one day Vietnam will be a free country and will have human rights.
It is our strong submission that these activities in Australia do not engage in s 5J(6) as they have not been done solely to strengthen her protection application. Instead, they are genuinely held political beliefs which she began to cultivate while she was in Vietnam and since leaving has felt free to express more freely.
Written Submission, 13 July 2018

On 13 July 2018 the applicant’s Agent sent a letter from [Ms A], [office bearer], [Vietnamese organisation 1], [specified branch], dated [in] July 2018. Relevant excerpts from the letter follow:
RE: [the applicant’s name] - [Date of birth].
I provide this letter based on my knowledge and interaction with him in my capacity as [office bearer] of the [Vietnamese organisation 1, specified branch].
I understand [the applicant] escaped Vietnam in 2013 after attempting to attend a protest with other Catholic parishioners.
She was released into community detention in [City 4] in 2014, residing for about 12 months at [address]. I know [name] via her activities with the [Vietnamese organisation 1, specified branch] and along with a few people from the same province in Vietnam who were also released into community detention.
Since being released into the community, [the applicant] has been with [Vietnamese organisation 1] since then, working and contributing to the local community at community functions and events. She has relocated to [City 3] in late December 2017.
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We the [Vietnamese organisation 1] has brave concerns for the people being returned to Vietnam after having sought asylum. Boat [number] was a recent example of where people upon return to Vietnam were charged and imprisoned.
At the same time [the applicant] is settling in well in [two cities] and proving to be a good citizen. The [Vietnamese organisation 1, specified branch], along with the broader community are supporting her in his integration here and I trust he will be given an opportunity to resettle and be good citizens of our multicultural society.
Thank you for your understanding and I would be pleased to provide further information should this is required. I can be contacted on [contact details]
I can also further confirm that [the applicant] has attended the [Vietnamese organisation 1’s] national annual peaceful rally on the commemoration of the Fall of Saigon 30/4 each year, [at Location 2] in [City 1] followed by the commemorative service at the [specified venue] in [City 1]. This event is organised by the national body of the [Vietnamese organisation 1], and the [specified branch] arranged transport for [local members] who wish to join.
From [their location] we travel by bus to [City 1] each year for the last 43 years. [The applicant] attended this event in 2015, 2017 and 2018.
Tribunal Hearing, 16 July 2018
The following is a summary of the information provided by the applicant at the hearing on 16 July 2018:
a.Her [number of siblings] are all practicing Catholics. They attend the local church and participate in church activities. She hasn’t talked with them about whether or not they are having any problems.
b.The Tribunal put to the applicant that available information indicated that the [a named] parish church was quite public about its activities and very popular, with no indication it encountered any difficulties with the authorities. The applicant responded she didn’t know about this but in her parish a number of her friends also raised their voice against the government. When asked which friends she responded it was virtually everyone in the congregation.
c.The Tribunal put to the applicant that available information indicated that the Bishop of Vinh published an open letter on the Vietnamese Catholic websites critical of the government’s handling of the Formosa incident, with no indication he encountered any problems for doing so. The applicant responded that she doesn’t know what happens in Vietnam but she knows they cannot write anything they want to on the Internet. The Vietnamese government only publishes what is good for their regime and they hide the harmful events and things.
d.There has been a law passed in Vietnam regarding security of the Internet. She is in Australia and doesn’t know much about the actual political activities in Vietnam. But she reads things on the Internet that many people oppose the new law and active people in the church voiced disagreement with the new law.
e.The applicant believes that the most important thing Viet Tan is trying to do is spread true information about life in Vietnam compared to lives elsewhere, so Vietnamese people are aware of the situation they are in, to educate them so they know what a democratic country is like and once they have the understanding they can band together to demand their rights for the government to change if possible.
f.She does not know what steps Viet Tan consider important. She knows they try to tell the truth about Vietnam. The applicant is one of the people educated by Viet Tan so she now knows how people live under the Communist regime. In Vietnam she always heard that Communism is good and the Communist Party serves the people but it is not true. They are brainwashed by the government. The only thing they serve is their own party and what they say is not true, just propaganda.
g.She does not know the basic things Viet Tan does. She understands that Viet Tan wants to overthrow the current government to modernise the country, through non-violent means.
h.There are two main issues in Vietnam at the moment. A lot of people are against the Internet Security law. Also some regions in Vietnam have been classified as specialised, to be rented to the Chinese for their exclusive use. The Vietnamese people are against this. Viet Tan is making a big campaign about each of these issues.
i.The Tribunal put to the applicant that Viet Tan appears to be widely publicising itself and its activities which is not consistent with her statement that they keep their activities secret. The applicant responded that their activities are much bigger than what they say on their website, and they only publish the commonly known information. There are other activities only the people inside the organisation know. She cannot tell the Tribunal what these are.
j.She had photos taken of herself and the Viet Tan [office bearer 2], [Mr B], as souvenirs. There was no other reason. The current [office bearer 1] of Viet Tan is [name].
k.She made a mistake when she told the Tribunal her photos were on the official Viet Tan website, not the [social media] page. They are on the Viet Tan [social media] site.
l.A group fighting for democracy in Vietnam invented the slogan “democracy is not a crime” that is written on the [placard] in a photo on the Viet Tan [social media] page.
m.She first contacted Viet Tan people some time in 2016. She spoke to [Ms B] and [Mr A]. They tested her before she was allowed to join Viet Tan. They asked her a lot of questions about her knowledge of Viet Tan and whether she would leak information about the organisation. The testing took about one year. As part of the testing they watched her to see if she participated in activities in a positive manner. This was after she moved to [City 3]. They were based in [City 2] but they were able to observe her by contacting her and having a conversation with her. She guesses that they knew how enthusiastic she is. They watched her activities by the fact that she would read the Viet Tan [social media] page and would share their news with other people.
n.She was not given a copy of the Viet Tan membership agreement she signed. It was forwarded to the Viet Tan head office.
o.She attended Viet Tan lessons through the Internet. On a monthly basis there was an online class arranged. She has no evidence of this. People in [City 2] would make a phone call to her and then they would have a conversation amongst themselves. She learned about the party history, how to improve the party and organising activities. She cannot disclose these things.
p.She learned just basic things about the party history such as who created the party and that the party was created to help people understand the truth in Vietnam, and that it was officially declared in Berlin in 2004. She learned more information about Vietnam and what the Communists say about Vietnam.
q.By ‘improve the party’ she means improve the organisation itself, the structure. She learned how to do this.
r.Regarding ‘organising activities’ she learned that first they have to look at the money side and raise funds and have a blue print of the planned activities. Mainly the activities are to expand the information on [social media].
s.She shared Viet Tan information to the people in Vietnam with the hope that once they read the documents they will have a better understanding of the true situation in Vietnam. She did not send anything to any person. She just shared Viet Tan articles on her [social media] page. By sharing the articles she meant she extracted the articles from the Viet Tan [social media] site and shared them on her [social media] site with her own group of [social media associates]. Her [social media] group was originally a small group including her siblings and friends. Other people joined such as friends of friends. She did not consider whether or not this would be dangerous for the group in Vietnam. The only thing for her is to share the information [social media] so other people can read and understand more about the true situation.
t.The Tribunal asked the applicant why people in Vietnam would not be aware of their own situation. She replied that possibly they do understand but they may not fully understand about everything.
u.The Tribunal asked the applicant which groups protesting for human rights in Vietnam she had been exposed to in Australia, as she had written she was exposed to many such groups. She responded Viet Tan is fighting for human rights and other groups like the [Vietnamese organisation 1] in each state. She only knows of these two groups.
v.The Tribunal asked the applicant if she had mentioned at her Department interview in August 2015 that she had attended a [City 1] demonstration in April 2015 and she responded no. Why asked why not she said she didn’t really know. She also did not mention she was interested in Viet Tan at the Interview.
w.The Tribunal put to the applicant that it could be thought that she only joined Viet Tan after the Department Delegate rejected her application because she had had no overt political activities. The applicant responded that it may be said she joined Viet Tan out of convenience but she feels she is Vietnamese and wants to change the system in Vietnam. She wants the people in Vietnam to have rights of speech and freedom so they are not oppressed by the government and not brainwashed with wrong information. It was not entirely because of the Immigration Department, it is from her heart.
x.The previous protests she attended in [City 1] were not on 30 April as she had previously stated. They were a few days before 30 April on a Saturday. This year it was on 30 April.
y.When she tried to attend the [District 1] protest, the police stopped them in Vietnam at [Location 1]. This is the name of a bridge, She does not know what the bridge is over. People were arrested when the police stopped them and some of her friends were subsequently arrested.
z.The Tribunal put to the applicant that she had given evidence she was unable to obtain a Birth Certificate from the police in Vietnam but her father was eventually able to find her old Birth Certificate. The applicant responded Yes.
aa.The Tribunal put to the applicant that she had submitted a copy of her Birth Certificate to the Department which had an issue date on it of “October 2012”, as well as an official identity card issued in “September 2012”. The applicant responded yes and that this was because her name in her Birth Certificate was correct but her name in her Household Registration contained a mis-spelling. When she found out about the mistake she applied for an amendment. It was the authorities’ fault so they had to rectify it and provide her with an updated Birth Certificate. When she applied for a copy of the Birth Certificate the authorities refused to provide it. Then her father searched and found her old birth certificate but she realised the name on it was ‘[a similar sounding name]’ not ‘[her name]’. So she went to the authorities and demanded they rectify the situation and they did. She has not mentioned this before.
bb.The Tribunal put to the applicant that there was no indication that the Vietnamese authorities had any adverse interest in her as they had not been causing any problems for her family in Vietnam. She responded that once her photograph appears in the Viet Tan photos then the Vietnamese government will know about her. She does not know whether the authorities are interested in her at the present time. She knows that being a member or involved with Viet Tan is considered a criminal act in Vietnam and surely that person will be persecuted or arrested.
cc.The Tribunal put to her that she had previously mentioned that police and government members contacted her parents. She responded that she is of the opinion if the Tribunal does not mention something and ask about it specifically then she does not need to tell the Tribunal about it. The Tribunal asked her to tell it now about her statements. She responded that after she came to Australia she heard that the Vietnamese police did come to her house and question her parents about her whereabouts; and every month they would come sometimes twice to ask about her but her parents would always evade the question by saying she has left.
dd.The Tribunal put to the applicant that the police may have been enquiring about her whereabouts for household registration purposes, as available information indicated they checked when people left an area without informing them. The applicant responded that if it was just a household registration investigation then they would just come once. But they came once or twice a month so maybe it was something else. Luckily her parents did not them give any information about where she was. They were not government members, just police. Her parents didn’t want to tell her a lot.
ee.The Tribunal asked the applicant what problem it would cause, if her parents told the police she was in Australia. She replied that she didn’t really know what the police would do. But they would make problems for her parents. Because in her opinion they always want to create problems and difficulties for people. She doesn’t know the reason they do that.
ff.The Tribunal put to the applicant that it therefore seems the authorities did not know she was in Australia, which indicated they have no interest in or awareness about her and her activities. The Tribunal added that the Vietnamese authorities also visited the detention centre in Australia without showing any interest in her there. The applicant responded that the only thing is that she now participates in political activities and the authorities will know of her involvement in Viet Tan and becoming a party member.
Written Submission, 8 August 2018
On 8 August 2018 the applicant’s Agent sent a written submission to the Tribunal. Relevant excerpts of the submission include the following:
Catholic Religion
At the hearing on 16 July 2018, the Member put to [the applicant] country information relating to the treatment of Catholics at [Parish 1] Church and particular, the treatment of the Bishop of Vinh following his advocacy around the Formosa incident. The Member stated that 'there is no indication that they are experiencing problems at that Church for their public activity in Vietnam'.
From the outset, we note that the links the Member has relied upon are links to Vietnamese websites which need to be translated through Google Translate. We have some reservations on relying on such a tool and whether it is sufficiently accurate for the Tribunal to be satisfied that the information is correct.
We note, however, as [the applicant] did at interview, that intemet freedom in Vietnam is extremely limited and has been increasingly restricted. Freedom House in their Freedom of the Net 2017 report on Vietnam states:
Internet freedom was undermined in 2017 as arrests and intimidation intensified, although there was no repeat of the Facebook disruption documented in 2016.
Internet content producers face a range of pressures that affect the quality of online information. All content needs to pass through in-house censorship before publication. In weekly meetings, detailed instructions handed out by a Party Committee to editors dictate areas and themes to report on or suppress, as well as the allowed depth of coverage. In 2017, President Tran Dai Quang called for new measures "to prevent news sites and blogs with bad and dangerous content," but none had been introduced in mid-year.'
The absence of information relating to [the applicant’s] parish or her local Bishop therefore is not indicative of an absence of harm. We have also provided considerable country information on the treatment of Catholics throughout Vietnam and maintain these submissions.
We continue to submit that as a Catholic, [the applicant] faces a risk of harm from the government but also from other pro-government groups and individuals that the government are unable or unwilling to protect her from and will discriminatorily withhold protection. The United States Commission on International Religious Freedom in their 2108 report on Vietnam states:
With respect to violations of freedom of religion or belief USCIRF has long observed a disconnect between the central government and the local officials, public security, and organized thugs who continue to threaten and physically harm religious followers and their houses of worship or other religious property. These 0pes of extrajudicial actions by nonstate actors have intensified in 2017, as has brutality and torture against civilians overall. These systematic, ongoing, egregious religious freedom violations demonstrate why constitutional and other legal measures that purport to protect freedom of religion or belief are not sufficient when government and nonstate actors violate the rule of law with impunity and disregard international human rights standards.
We have already raised a number of incidents of violence against Catholics perpetrated by non-state actors in our submission dated 30 May 2018, namely a number of incidents in 2017 involving a "Red Flag" militant group.
…It is our strong submission that there is a real chance of [the applicant] being persecuted on return to Vietnam as a result of her religion as a Catholic. The ongoing harassment and attacks against Catholics by violent pro-government groups means that the Tribunal cannot exclude the real possibility that [the applicant] would be the victim of one of these violence attacks. This is particularly the case when you consider [the applicant’s] profile cumulatively.
Political Opinion
At the conclusion of the second hearing the Member advised that she was still unsure whether [the applicant’s] claims are true and whether her political activity comes from a genuine political interest.
We reiterate our submissions that [the applicant’s] political opinion is a genuinely held belief which she held while she was in Vietnam. This political opinion has been stoked by exposure to a democratic country and the strength and nuance of her political opinions have grown and developed over time as she has been able to openly explore and discuss these issues in Australia.
Her interest in politics and her anti-government sentiments are not new to [the applicant], instead they have become more nuanced and developed over time — something that is to be expected. While her view has become more developed, we note the importance of not expecting her to communicate her political view and ideology in a prescribed way. Her ability to express her political opinion and beliefs should be viewed in light of the fact that she has only studied up until [level] and also that she is communicating through an interpreter.
[The applicant] has always consistent discussed her opposition to the communist government in Vietnam. In her entry interview on 28 June 2013, in response to a question about why she left Vietnam, she stated:
I know because Australia is a country who protects human rights, freedom of the people and freedom of religion, freedom to say anything and how people have a very good life here, In Vietnam we never have anything like that... We don't have freedom to speak what we want in Vietnam, Cannot speak our mind there... The Government thinks the Catholic people are against the government
We note that the Tribunal Member during the hearing withdrew a question relating to inconsistencies in [the applicant’s] entry interview and said that she would not rely on this document. Should the Member intend to rely on any information in the entry interview in an adverse manner, we request that this information be put to us as we currently understand that the Member does not intend to rely on any information in the Entry interview.
In her interview with the Department, she made comments like 'I don't trust the government'. She also discussed carrying a banner which says 'fight against the communists'. In her original statutory declaration dated 4 June 2014, she also stated 'The Vietnamese government is discriminating against Catholics because they think we are against the government'.
While [the applicant] may not have had the vocabulary to express her political opinion in her first few years in Australia in the language that might be expected of a political activist, it is clear that she has always expressed her dissatisfaction regarding the treatment of people in Vietnam (albeit initially through the lens of how Catholics were discriminated against) and the Communist Party in Vietnam. As we argued in our original submission, being a Catholic in Vietnam is an inherently political act and religion and politics cannot be separated.
To claim that her political opinion is a new one that she only came to in Australia (and after her interview with the Department) would not be an accurate reflection of the evidence that [the applicant] has consistently given since arriving in Australia.
Viet Tan
It is our strong submission, that there is sufficient evidence before the Member to make a finding that [the applicant] is a member of Viet Tan and that as a known member of Viet Tan, she is at risk of harm on return to Vietnam.
We note that the Tribunal asked [the applicant] about the 'four basic things that Viet Tan does'. We understand that this question is drawn from Viet Tan's English website from the four boxes under the heading 'What We Do'. The boxes are: promoting a defacto free media; supporting grassroots movements; training and capacity building; international advocacy. Throughout the interview, [the applicant] addressed and spoke to each of these four issues showing that she has a strong understanding of the activities of Viet Tan. She spoke about Viet Tan engaging with international organisations to 'foster the recognition of human rights in Vietnam'. She also spoke about the importance of educating people so they can 'band together to demand for their rights with the government to change the regime if possible'. She also discussed at length and on multiple occasions how she shares articles with people in Vietnam as a way of promoting a defacto free, media. We have attached a number of recent political posts that [the applicant] has posted on [social media].
[The applicant] was also able to explain her involvement in the social media movement 'democracy is not a crime' in response to the arbitrary arrest of the leaders of the Brotherhood of Democracy.
When asked what are the issues that Viet Tan are highlighting currently. She was able to identify two of the issues that were listed on Viet Tan's website on the day of the hearing — that is, the laws relating to cybersecurity and the issues with designating areas of Vietnam as special regions. We have provided a screen shot below of the Viet Tan website on the day of the hearing which shows links to articles on these topics:
…
Given the above and the previous documentation and photographs provided by [the applicant], it is our strong submission that [the applicant] should be found to be a member of Viet Tan. As a member of Viet Tan she is at particular risk in Vietnam.
[Specified branch] of the [Vietnamese organisation 1]
The Member raised concerns that the [specified branch] of the [Vietnamese organisation 1’s] [social media] site did not show any record of their participation in the protest in [City 1] in 2018.
We provide the Member with the following link which is a live video Posted on the group's [social media] page which appears to who them protesting in [City 1]:
The Tribunal also raised how reliable the letter from the [Vietnamese organisation 1] was. In response to these concerns, we are in the process of obtaining information from the [office bearer] of the [specified branch], [Ms A]. We will provide this information by close of business on Friday, 10 August 2018.
Interest of the Vietnamese authorities
The Member noted at a number of points throughout the second hearing that 'there doesn't seem to be much indication that the Vietnamese authorities have any interest in you.' As discussed at hearing, [the applicant’s] parents have been visited on numerous occasions by the Vietnamese authorities.
Further, the process of establishing whether an applicant's fear is well-founded will involve making findings of fact based on an assessment of the applicant's claims and relevant country information, as to the reasonably foreseeable future .
We submit, that when looking forward to the future, given:
1. [The applicant’s] religion as a Catholic which should be viewed as both a religious belief but also as a political opinion (actual and imputed) in Vietnam;
2. Her attendance at a protest in Vietnam which caused her to ultimately leave Vietnam;
3. Her membership of Viet Tan and the fact that her photograph is on the Viet Tan website and she shares their information on [social media];
4. Her attendance at anti- Community Party protests in Australia in [City 1] which have been documented on social media;
5. Her strong and consistent oral evidence relating to her belief in democracy and the need for political change in Vietnam, a belief that she would continue to act on if she was in Vietnam;
6. That she will be returning to Vietnam as a returnee/ failed asylum seeker who has been affected by the data breach; and
7. That the authorities have visited her parents in Vietnam on numerous occasions to enquire after [the applicant].
the Member cannot reach the requisite level of satisfaction that [the applicant] will not experience harm in Vietnam from the government or pro-government groups or individuals because of the above cumulative profile.
Written Submission, 10 August 2018

The Canadian Immigration and Refugee Board published the following research information in 2014:
[A representative of the Vietnam Human Rights Network (VHRN)] 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
1.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.
2.Organizers, coercers and instigators shall be sentenced to between five and fifteen years of imprisonment.
3.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.
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
1.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.
2.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; 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). AI notes that as of the 2013 report, 75 people remained imprisoned for the "peaceful exercise" of freedom of expression (ibid.).[6]
[6] Research Directorate, Immigration and Refugee Board of Canada, 2014, ‘Vietnam: Consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas [VNM104803.E]’.
A May 2017 Radio Free Asia article states:
Vietnam has arrested a young activist for posting material critical of the government on social media, his mother told RFA's Vietnamese on Wednesday. Ho Chi Minh City native Tran Hoang Phuc, 23, was detained on July 3 on the accusation of "possessing materials, producing and posting videos on internet critical of the government" under article 88 of Vietnam's penal code, she said.
… Rights groups and Western governments say Vietnamese authorities frequently use Article 88 and the charge of "propaganda against the state" to arrest and imprison those who support democracy and human rights and denounce abuses.
Phuc was selected to take part in the Young Southeast Asian Leaders Initiative (YSEALI), a U.S. government leadership development and networking program in Southeast Asia. He was invited to meet with then U.S. President Barack Obama last year when Obama visited Vietnam, but police blocked Phuc from going to the meeting.
… Phuc's detention follows the sentencing on June 29 of activist and blogger Nguyen Ngoc Nhu Quynh, known as Mother Mushroom, to 10 years in prison under Article 88 for her Facebook posts and interviews with U.S. news agencies.[7]
[7] Radio Free Asia 2017, ‘Vietnam Detains Young Activist Over Critical Facebook Comments’, 7 May
An undated report by the Indonesian Human Rights Resource Centre, states:
Article 91 on “fleeing abroad or defecting overseas with a view to opposing the people’s administration” has also been used to arrest people on return from public engagements abroad where the state suspected them of issuing critical statements against the government. “Conducting propaganda against the Socialist Republic of Vietnam” is also illegal under Article 88.[8]
[8] Human Rights Resource Centre, (undated), ‘Rule of Law for Human Rights in the ASEAN Region: A Base-line Study, The Socialist Republic of Vietnam’.
The latest 2016-17 report by the Vietnam Human Rights Network states:
… organizations promoting democracy and human rights, such as Bloc 8406, …, the Việt Tân Party, … , continued to be prohibited and persecuted. Many members of these organizations were tracked down, assaulted, and detained.
In 2016, in addition to maintaining the above measures, the government blatantly continued to use security forces to carry out acts of interference, arrest, and passport confiscation on the vague grounds of “protecting national security, social order, and safety,” all in pursuance of Decree No. 136/2007/ND-CP of 7/17/2007. The following are typical cases of the government’s violations of the right to freedom of movement and residence under the pretext of “national security.”
- On January 31, 2016, Da Nang Airport security detained Human Rights activist Nguyen Anh Tuan upon his return after three years of schooling and participation in human rights activities overseas.
- On March 30, 2016, the wife of prisoner of conscience Pastor Nguyen Cong Chinh, Mrs. Tran Thi Hong, was prevented from meeting the Hon. David Saperstein, the US Ambassador at large for religious freedom.
- On April 4, 2016, Mr. Mai Van Tam, a member of the Brotherhood for Democracy, was arrested by Noi Bai Airport security upon his return from a trip to Thailand to attend the ASEAN Regional Civil Society conference in Bangkok.
- On April 17, 2016, journalists Pham Chi Dung, Doan Trang, Mr. Bui Minh Quoc, and independent journalist Nguyen Tuong Thuy were barred from attending the roundtable discussing President Obama’s visit to Vietnam.
- On April 24, 2016, some members of the Brotherhood for Democracy were arrested while they were preparing the organization’s third-anniversary celebration.
- On May 15, 2016, public security police prevented the Most Venerable Thich Thanh Quang, the Abbot of the Vietnam United Buddhist Church’s Department of Buddhist-Truth Proclamation, and coreligionist Le Cong Cau, Secretary of the Department, from traveling to Saigon to help Buddhist Patriarch Thich Quang Do welcome a visiting delegate from Australia.
- On May 24, 2016, independent journalist Doan Trang and Dr. Nguyen Quang A were prevented from attending a meeting with President Obama and other representatives of civil society organizations in Hanoi.
- On June 3, 2016, street artist Ta Tri Hai, who had taken part in demonstrations demanding Democracy and Human Rights, was arrested and taken to a social protection center in Hanoi.
- On June 11, 2016, An Giang public security police prohibited Human Rights activist Pham Ba Hai from joining the wedding party of a former prisoner of conscience.
- On July 1, 2016, An Giang public security police disguised as hooligans prevented Attorney Le Quoc Quan and journalist JB Nguyen Huu Vinh from attending a party at the US Embassy.
- On July 6, 2016, the wife of prisoner of conscience Nguyen Van Dai, Mrs. Vu Minh Khanh, upon her return from an overseas trip seeking help to free her husband, was detained at Noi Bai Airport.
- On July 30, 2016, Pastor Pham Ngoc Thach’s passport was confiscated at Tan Son Nhat Airport, preventing him from traveling to Timor to attend the ASEAN Civil Society conference on religious freedom.
- On August 5, 2016, Dr. Nguyen Quang A was prevented from meeting foreign countries’ diplomatic officials.
- On September 26, independent journalist Vu Quoc Ngu was detained at Noi Bai Airport while he was on the way to attend a Reporter without Borders’ seminar in Paris, France.
- On November 8, 2016, Father Phan Van Loi was not allowed to leave his home by two plainclothesmen.
- On January 13, 2017, writer Nguyen Vien, Attorney Le Cong Dinh, and journalist Pham Chi Dung were prevented from meeting US Secretary of State John Kerry. Also on this day, former prisoner of conscience Pham Thanh Nghiem was prohibited from taking her father-in-law to Thailand for medical treatment.[9]
[9] Vietnam Human Rights Network, ‘Report On Human Rights In Vietnam, 2016-2017’.
A 2014 report by the Campaign to Abolish Torture in Vietnam, states:
In Vietnam, charges of “fleeing abroad to oppose the people’s administration” (Penal Code article 91) are often filed against peaceful dissidents who flee Vietnam because of harassment and persecution to seek safety and political asylum in Cambodia, Thailand, or other countries.
Rather than recognizing that international law provides for the right to seek asylum, the Vietnamese government brands this a hostile anti-government act and then criminalizes it. People who simply exit the country illegally are not sanctioned under Article 91, whose criminal penalties apply only against those who flee abroad “with a view to opposing the peoples’ administration.” Immigration law specialist Grover Joseph Rees argues that article 91 “explicitly limits its sanctions to those who hold a particular political opinion,” with the government using it to punish anti-government activists and as a deterrent to others thinking of trying to flee:
“Article 91, on illegal exit, is per se persecutory. Unlike most such laws in other countries around the world, this law does not simply punish illegal exit from the country. Rather, Article 91 punishes only those who flee abroad ‘with a view to opposing the peoples' administration’. That is, it explicitly singles people out for criminal prosecution and imprisonment on account of their political opinions. Others who engage in identical conduct for some other motive—economic, social, or even political so long as the political opinion in question is not antigovernment— are not punishable.”[10]
[10] Campaign to Abolish Torture in Vietnam, 2014, ‘Vietnam: Torture and Abuse of Political and Religious Prisoners’, January.
The USDOS 2016 Human Rights report for Vietnam includes the following:
On August 23, a court in the Khanh Hoa Province sentenced Nguyen Huu Quoc Duy and Nguyen Huu Thien An to three and two years of prison, respectively, for “conducting propaganda against the state” (article 88 of the penal code). Authorities charged Duy with creating a Facebook group to “slander the government.” Duy’s family members reported the court refused to let them visit Duy, send food packages, or provide their own defense lawyer. An was charged with spray-painting an obscenity on the side of a police building and for attending a human rights training event. ….
The government forbids direct access to the internet through foreign ISPs, requires domestic ISPs to store information transmitted on the internet for at least 15 days, and requires ISPs to provide technical assistance and workspace to public security agents to allow them to monitor internet activities. The Ministry of Public Security has long required “internet agents,” including cybercafes, to register the personal information of their customers, to store records of internet sites visited by customers, and to participate in government investigations of online activity. Internet cafes continued to install and use government-approved software to monitor customers’ online activities. The Ministry of Public Security enforced these and other requirements and monitored selectively…
NGOs also reported that Vietnamese security officials, including provincial security agents from Gia Lai Province, visited Bangkok and contacted asylum seekers via Facebook to monitor them and pressure them to return to Vietnam….
Major foreign media outlets reported the government refused to issue visas for reporters who previously covered sensitive political topics, particularly reporters for overseas Vietnamese-language press….The government sometimes blocked websites it deemed politically or culturally inappropriate, including sites operated by overseas Vietnamese political groups….
Authorities continued to imprison, using national security provisions of the penal code and with lengthy prison sentences, multiple ethnic minority individuals allegedly connected to overseas organizations the government claimed espoused separatist aims….
Arbitrary Arrest: Arbitrary arrest and detention, particularly for political activists and individuals protesting land seizures or other injustices, remained a serious problem. Authorities subjected many religious and political activists to varying degrees of arbitrary detention in their residences, in vehicles, at local police stations, at “social protection centers,” or local government offices. Officials also frequently detained human rights activists upon their return from overseas trips.
The 2013 report[11] by the Vietnam Human Rights Network refers to three persons being charged with fleeing abroad or staying behind in foreign countries with the intent to oppose the people’s government, Article 91, in 2013. It also listed 14 persons then in jail for violation of Article 91.
[11] Vietnam Human Rights Network, ‘Report On Human Rights In Vietnam, 2013’.
The 2011 report by the Vietnam Human Rights Network, contains the following:
Professor Pham Minh Hoang, of dual nationality (French and Vietnamese), was sentenced in August 2011 to 3 years in prison and 3 years under house arrest allegedly for his “activities aiming at overthrowing the people’s government” based on Article 79 of the Vietnam Criminal Law. He was accused by the authorities of having posted on the Net 33 articles intended to oppose the CPV single-party regime under the penname of Phan Kien Quoc, and of his overseas relations with the Viet Tan party. His sentence was then reduced to 17 months by a court of appeal on 29 November 2011 for his “plot to overthrow the government.” He was eventually freed on 13 January 2012, but is still under house arrest.
Ms. Ho Thi Bich Khuong was sentenced by a Nghe An court based on Article 88 of the Vietnam Criminal Law, to 5 years in prison and 3 years under house arrest, for having answered an interview by an overseas anti-state radio station and then posted it on the websites of various human rights groups. She was also a recipient of the 2011 Hellman/Hammett prize. Pastor Nguyen Trung Ton, similarly, was sentenced to 2 years in prison and 2 years under house arrest for the same “crimes.” [12]
[12] Vietnam Human Rights Network, ‘Report On Human Rights In Vietnam, 2011’.
In 2016 the Daily Telegraph in Australia reported the following:
A City council is under pressure from Vietnamese and Australian authorities not to fly a political flag. A push for the City of Yarra to fly the non-communist flag risked jeopardising economic, trade and education co-operation between Vietnam and Australia, the Vietnamese Government has warned. The council will tonight vote on a request to display the so-called Yellow Flag of the former South Vietnamese government which was defeated in the Vietnam War. Vietnamese community leaders want the flag to fly above Collingwood and Richmond town halls on Vietnamese Veterans Day on June 19 annually. In a letter, the Socialist Republic of Vietnam’s embassy in Australia urged the council “take strong measures to prevent the motion from being realised”.[13]
[13] Daily Telegraph, 2016, ‘Vietnam protest over council flag request’, 23 August,
The recent Asia Times article, referred to by the applicant’s Agent in her last submission, states as follows:
Vietnam's bid to pressure Australia into banning the flag shows how sensitive the symbol remains more than 40 years after the fall of Saigon.
Buried at the bottom of a detailed account of Prime Minister Malcolm Turnbull’s trip to the G-20 Summit were a few lines on his meeting with Vietnam’s Prime Minister Nguyen Xuan Phuc. Though Vietnam is not a part of the G-20, a grouping of the top 20 economies in the world, Phuc and other leaders travelled to the event for meetings on the sidelines. “In his discussion with Prime Minister Nguyen Xuan Phuc, the Vietnamese leader raised concerns about five local councils in Australia that reportedly support the flying of the ‘yellow’ flag, which was the flag of the former government of South Vietnam,” reported Fairfax media. “Mr Nguyen asked Mr Turnbull to exert his influence and stop the practice.”
…
Vietnam’s government has long tried to quash the old flag flown by its diaspora in remembrance of the country’s previous division between capitalism and communism, so far to little avail. US freedom of speech laws mean it cannot be banned there.
… The well-organized and politically vocal community in California, whose older generation leans strongly Republican, flies the flag at various community events. Banned inside Vietnam, pro-democracy groups like Viet Tan also hoist the flag at their overseas events calling for political change. Vietnam War veterans also display it during commemorative events.
… While allowed at the small council level, Canberra firmly forbids the VCA from bringing the flag to official events in the capital. The Hanoi government regards the flag as illegal and it is strictly banned within Vietnam.
Vietnam’s attempt at political inference might seem unusual for Australia, which more often worries about Chinese political influence or meddling in its domestic affairs. … However, Hanoi also has a long history of keeping tabs on Vietnamese refugee communities that settled in the West after the war, as documented vividly in Viet Thanh Nguyen’s Pulitzer Prize-winning novel The Sympathizer.
… Vietnam has recently launched yet another harsh crackdown on its dissidents, sentencing several to prison terms for their political opinions. Communist authorities view the flag and the people who fly it overseas as linked to campaigns aimed at undermining or even toppling its rule.
The VCA [Vietnamese Community in Australia] is regarded with suspicion in Hanoi and its members and associates are firmly banned from returning to Vietnam. Indeed, they are often turned back at the gates of Ho Chi Minh City’s airport upon landing.
Last year the VCA organized large protests in Australian cities against the Vietnamese government’s handling of the Formosa pollution scandal, viewed as one of the country’s worst ever environmental disasters.[14] [emphasis added]
[14] Asia Times, 2017, ‘South Vietnam Flag Still Flies High’, 23 July,
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted copies of her Vietnamese identity documents. On the basis of these documents and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Vietnam. The Tribunal assesses the applicant’s claims against Vietnam as her country of nationality and receiving country.
Credibility
Catholic faith

The applicant gave sufficiently detailed and consistent evidence about her Catholic faith in both Vietnam and Australia. The Tribunal accepts that the applicant is a practicing Catholic.
2012 [District 1] Protest
The Tribunal found the applicant generally lacking in credibility in relation to what happened tin Vietnam and why she departed Vietnam. Her evidence about trying to attend the [District 1] protest in July 2012 was vague and confused. Her description of the event and its aftermath contained implausibility and inconsistency. She provided inconsistent information over the course of her visa application process about the number of people who were stopped by the police, the number of people arrested, and when and where they were arrested by police. She was also very vague about the identity of the people arrested, repeatedly calling them her friends yet being unable to identify any of them. Given her she did not appear to actually know any of the people she claimed were arrested, her further evidence that they would disclose her identity to the authorities lacked any sense.
The applicant stated also that the place where the police stopped her and the others was ‘[Location 1] bridge’, about [distance] from her village. The Tribunal notes that available maps show [Location 1] bridge to be about [distance] north of the applicant’s village, whereas the route to [District 1] is directly west of the applicant’s village (about [distance] away). Travel to [Location 1] would take the applicant far from the road to [District 1]. The Tribunal finds her description of a place clearly away from a direct route to [District 1], further undermines the credibility of her claim. It is also difficult to understand why police would stop 300 to 400 travellers at a location, nowhere near the direct route to [District 1], or why the police would allow them to congregate there and not simply send them back to their departure points. Despite there being substantial coverage of the [District 1] demonstration and the authorities’ actions in Nghe An the Tribunal could find no reports of police stopping people travelling to attend the [District 1] parish demonstration.
The applicant’s evidence about her interactions with the local authorities, following the [District 1] incident, was also confused and contradictory. She stated that she herself told the authorities she had participated in an anti-government demonstration yet was fearful about being harmed by them for this reason. There is little apparent sense in the applicant unnecessarily volunteering this information to the authorities..
The applicant provided false evidence about the authorities refusing to issue her a Birth Certificate, admitting to the Tribunal at her last hearing that they had issued her a Birth Certificate, only after the Tribunal put to her that the issue dates of her identity documents did not support her claim.
In view of the poor quality of the applicant’s evidence the Tribunal does not accept that she tried to participate in a demonstration at [District 1] or that the authorities refused to issue a Birth Certificate to her.
The applicant maintained that she departed Vietnam out of fear of the authorities when nothing adverse occurred to her or looked like occurring, in the many months following the [District 1] demonstration. The Tribunal does not accept that fear of the authorities played any part in the applicant’s decision to leave Vietnam.
Visit by Vietnamese Authorities to Detention Centre
There are available reports and letters to confirm that Vietnamese officers visited the immigration detention centre in Australia while the applicant was held there, and spoke to some Vietnamese detainees. The Tribunal accepts they did so visit. The applicant has stated that the officers did not interview her, meet with her, or indicate any interest in her. The Tribunal also accepts this.
Data Breach
The Tribunal accepts the applicant was in detention at the time of the Department’s ‘data breach’, and that the information temporarily publicly available on the Department’s website included biographical detail about the applicant, and that she was in immigration detention.
Political activity in Australia
The applicant has claimed to have participated in protests [at Location 2] in [City 1] on three occasions, and to have joined the prohibited Viet Tan organisation in Australia.
The Tribunal does not accept that the applicant first attended a demonstration in [City 1] in April 2015. This was well before her interview with the Department delegate (in August 2015) yet neither she nor her Agent made any mention of any such attendance or any reference to any such political activity in Australia at the time. When asked why, the applicant had no response. Further, when asked at first hearing about her attendance at the protest in [City 1] she repeatedly described it occurring on 30 April 2015. Available country information suggests it occurred on Saturday, 26 April 2015. At her second hearing the applicant changed her evidence to state she attended the protest a few days before 30 April, as it is held on the Saturday closest to 30 April. The Tribunal considers the inconsistency, and initial error, in the applicant’s evidence about the date of her first claimed participation in a [City 1] protest undermines the credibility of her claim to have been there in April 2015. The recently submitted letter from [Ms B] describes her meeting the applicant at a protest in [City 1] on 30 April 2015. As noted the available country information, and the applicant’s corrected evidence, indicates that there was no protest on this date as it occurred on 26 April 2015. Further this date is well before the applicant claims to have met [Ms B]. The Tribunal considers this information in [Ms B’s] letter to be unreliable and gives it no weight. The Tribunal notes the letter from [Ms A] also refers to the applicant attending the [City 1] demonstration in 2015. However this paragraph is oddly included after [Ms A’s] sign off paragraph, and appears to have been included after [Ms A] completed her letter, presumably at the applicant’s instigation. No other reference to such attendance is in the body of the letter. The Tribunal therefore considers the information unreliable and gives it no weight.
The applicant also claims to have participated in the April commemoration demonstration in [City 1] in 2017 and 2018. She provided a number of photographs of her attendance and was able to provide a reasonably coherent description of the demonstrations. The Tribunal accepts she did attend the demonstration in 2017 and in 2018.
The applicant has also provided supporting letters and social media evidence of her membership of Viet Tan in Australia from some time last year (2017). The Tribunal accepts that the applicant joined Viet Tan in Australia some time in 2017 and continues to participate in activities with them.
Fear of Harm in Vietnam
Catholic
The Tribunal has accepted that the applicant is a practicing Catholic, in Vietnam and Australia.
The Tribunal has not accepted that the applicant engaged in any anti-government activity as a Catholic in Vietnam. The Tribunal has not accepted that the applicant was of any adverse interest to the authorities as a Catholic in Vietnam.
The available information, including the reports submitted by the applicant, show that Catholics involved in activities considered anti-government can be arrested, imprisoned and otherwise seriously mistreated in Vietnam.
However the available country information shows that the millions of Catholics in Vietnam are able to practice their faith safely there as long as they avoid involvement in anti-government activity. On the accepted evidence the applicant has not been involved in anti-government activity in Vietnam. The Tribunal finds that she can continue to practice her Catholic faith in Vietnam to the extent she wishes to do so, without harm or interference from the authorities. The Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant as a practicing Catholic in Vietnam.
Vietnamese Officials’ visit to detention centre
On the applicant’s own evidence the Vietnamese officials showed no interest in the applicant during their visit to the detention centre. There is no other evidence or indication that their visit poses any risk to the applicant on return to Vietnam. The Tribunal is not satisfied there is a real chance of serious or significant harm to the applicant on return to Vietnam as a result of the visit of the Vietnamese officials to the detention centre.
‘Data Breach’
The Tribunal has accepted that information about the applicant was inadvertently publicly available on the Department’s website for a short period in February 2014. This information included her name, date of birth, nationality, gender and details about her detention, but not that she applied for a Protection visa or information regarding her claims for protection.
Given the nature of the information the Tribunal does not consider that its publication would cause any problems for the applicant on return to Vietnam. The Tribunal is not satisfied that there is a real chance of serious or significant harm to the applicant in Vietnam, arising out of the Department’s ‘data breach’.
Activity in Australia
The Tribunal considers that the timing of the applicant’s involvement in political demonstrations and Viet Tan in Australia casts serious doubts on the bona fides of her activity. As put to the applicant it was not until after the Department Delegate reasoned in her decision that the applicant would not be at risk on return to Vietnam, due to her having no political activity, that the applicant involved herself politically in Australia. The Tribunal considers it very questionable that the applicant changed from having no political activity for her first three or four years in Australia, to suddenly engaging herself in the main prohibited Vietnamese political organisation and very public demonstrations against the Vietnamese government.
The applicant claimed to have researched opposition groups and to have made an informed choice to join Viet Tan, yet was unable to provide any information about any other Vietnamese opposition organisations or the information which led her to choose Viet Tan. Her only information about Viet Tan was low-level and easily found on the Internet. She was unable to offer any particular insight into Viet Tan to base her sudden actions in Australia. Her evidence about being tested by Viet Tan was highly vague and confused. When asked to provide detail about this she merely contradicted her own evidence and could supply little actual detail.
Her information about Viet Tan’s aims and activities was similarly vague, confused and simplistic. She repeatedly stated they were bringing the truth to the Vietnamese people yet could not offer any explanation how the people in Vietnam would be unaware of their actual situation or their political realities. She provided contradictory evidence about herself and her church being against the government and critical of repressions there while she was in Vietnam, yet only learning that the government was deceptive after she obtained information from Viet Tan. She showed little political awareness or interest in the actual political situation in Vietnam, and could not refer to anything current in her first hearing, apart from the widely known Formosa incident two years ago. It was only at her second hearing that she was able to provide some broadly known detail about two actual issues which have created public and well-publicised protests in Vietnam. Her repeated evidence that the Vietnamese people were ignorant of their situation, needing Viet Tan to educate them that the government was undemocratic, appeared to simply cover her own lack of political knowledge and analysis.
In the circumstances the Tribunal considers that the applicant joined Viet Tan and attended her first demonstration in [City 1] simply to strengthen a refugee claim.
The Tribunal notes that since joining Viet Tan some time last year the applicant has been quite active with the organisation and with the political activities of the [Vietnamese organisation 1]. She has also had several photographs of herself published on Viet Tan’s [social media] site, showing protest and resistance, and been active promoting Viet Tan on her own [social media] site. She has attended regular meetings and involved herself in fund-raising.
The extent of the applicant’s continued political activity suggests that she may have developed a genuine interest in an anti-government political cause, through her exposure to Viet Tan and the [Vietnamese organisation 1], despite a lack of effort to acquire any in-depth knowledge and understanding about politics in Vietnam. Given she came to Australia with already formed (albeit low-level) anti-government views, the Tribunal accepts that she may feel no need to extend her own analysis. The Tribunal accepts that the support and friendship shown to the applicant by the two organisations would also encourage her to politically commit to them. With this in mind the Tribunal cannot conclude that the applicant’s recent political activity in Australia has been solely for the purposes of strengthening a refugee claim. In view of her current immersion into the activities of Viet Tan and the [Vietnamese organisation 1], particularly her recent visit to [City 2] to attend a two-day meeting with Viet Tan’s [office bearer 2], the Tribunal is satisfied that she has developed some genuine political motivation for her involvement. The Tribunal therefore will not disregard her political conduct in Australia for the purposes of assessing her refugee claim.
The Tribunal notes the applicant’s activity has been quite public and that there are photographs readily available on the Internet of her displaying direct anti-Vietnamese government sentiment. The Tribunal notes that this information remains publicly available on the Internet, and that it appears on the [social media] site of an organisation that the Vietnamese government monitors and considers terrorist.
Available information, including that submitted by the applicant’s Agent, provides numerous instances of people arrested in Vietnam because of material on social media sites and their links to Viet Tan. The Tribunal accepts this information.
Given the applicant’s publicly available profile as a current member of Viet Tan who is demonstrating anti-government sentiments and activity, the Tribunal considers there is a real chance the authorities in Vietnam will become aware of her actions in Australia. This would lead to the applicant’s arrest and imprisonment on return to Vietnam. Given the available information about detention abuses the Tribunal is also satisfied there is a real chance the applicant will suffer serious physical abuse from the Vietnamese authorities if arrested.
The Tribunal considers that the applicant is therefore at risk of arrest, imprisonment and serious physical abuse at the hands of the authorities on return to Vietnam. The Tribunal finds that this is serious harm and that the essential and significant reason for the harm is the applicant’s political opinion.
As the harm the applicant fears is from the Vietnamese authorities the Tribunal is satisfied that there is no relocation option, and no available state protection, for her in Vietnam.
The Tribunal is therefore satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Vietnam.
There is no evidence or indication before the Tribunal that the applicant has a right to enter and reside in any other country and the Tribunal accordingly finds that she is not excluded from Australia’s protection by s.36(3) of the Act.
CONCLUDING PARAGRAPH
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Melissa McAdam
Member

[2018] AATA 4186

12 September 2018

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