1620623 (Refugee)

1620623 (Refugee) [2020] AATA 5819 (14 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620623
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Meena Sripathy
DATE:14 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 December 2020 at 11:23am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – objection to Communist ideology – freedom of speech and human rights – member of the Viet Tan Vietnam Reform Party – delay in raising claim – purpose of political activities after arriving in Australia – participation in anti-Vietnamese government events and protests in Australia – low level participant with no organising profile or role – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 November 2016 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 26 November 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant faced a well founded fear of persecution for any of the reasons specified in s.5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion) and does not meet the criteria for recognition as a refugee for this reason or that she faced a real risk of significant harm as required to meet the criteria for complementary protection under s36(2)(aa).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a [age] year old woman of Vietnamese nationality. She indicates she is divorced. She has an [age] year old son, a sister and a brother in Australia who are Australian citizens, and parents and a brother in Vietnam. She arrived in Australia in 1999 and has not left since then. She indicated that she left her country legally. She has a current Vietnamese passport issued in Sydney [in] 2012 and valid [to] 2022. She provided no details of education or employment in Vietnam prior to coming to Australia. In Australia she worked as a [Occupation 1] from 2007 to 2009.
The applicant provided a Statutory Declaration dated 26 November 2015 setting out her protection claims. She stated that since her arrival in Australia she has experienced freedom that democracy offers. She did not have that freedom in Vietnam and now fears if she returns she will come into conflict with the authorities because of her free thinking and expression to speak up about political affairs. She refers to the 1992 Constitution of Vietnam which refers to various human rights principles but the same Constitution restricts those rights. She states she has not experienced harm so far but she fears upon return she will face the possibility of being harmed. She has learned to be free spirited and will often speak her mind about matters she opposes. She referred to matters she understands occurs in Vietnam relating to repression of government critics and activists and specific human rights abuses. She believes she will be unable to restrict expressing her views and thoughts and will face the consequences of arbitrary arrest for this. She is also concerned that the time she has spent in prison in Australia will be known to the Vietnamese authorities and she will be targeted as a criminal upon her return.
In a submission lodged with her application by her then legal representative it was argued the applicant has claims on the basis of her political opinion as a Vietnamese citizen who objects to Communist ideology and the oppressive regime of controlling their citizens free spirited thinking and expression of thought.
The applicant provided with her application a copy of her National Police Certificate indicating, amongst others, convictions for drug related offences in respect of which she was sentenced to imprisonment for 18 months, suspended on entering a bond.
The applicant was invited to attend an interview before the Department to discuss her protection claims on 21 November 2016. On 18 November 2016, her legal representative, on her behalf, declined the offer of the interview and requested a decision be made on the written claims.
The delegate made a decision to refuse the application on 25 November 2016.
Evidence before the Tribunal
On 12 August 2020, in response to a request to provide submissions and evidence on which she proposes to rely, the applicant provided the following further and new information:
·A Statutory Declaration dated 12 August 2020 from the applicant – providing information about her background and circumstances. She referred to being associated with freedom fighter bloggers and organisations who have similar beliefs to her for many years and became a member of the Viet Tan Vietnam Reform Party – Australia Division - Sydney Chapter and participated in many anti Communist regime activities with other active members since 2015. Her fear remains the same now. She will not change her political views and it will raise a source of threat for herself and her family. She is also trying to protect her son who was born in Australia in [year]. She is the only family he has here. He is doing an apprenticeship at TAFE and has a bright future here. She needs to be by his side.
·Letter from [Mr A], Member of [an] Ex Officer Military Association in NSW dated 9 August 2020 stating that the applicant is known to him and listing the “anti-communist regime in Vietnam” activities the applicant has participated in since 2015.
·Photos claiming to show the applicant and the activities and association with these activities.
On 20 August 2020 the applicant advised the Tribunal of her appointment of a new representative.
Tribunal hearing
The applicant appeared before the Tribunal on 19 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented by a registered migration agent who attended the hearing.
At the hearing the applicant provided the following evidence. She is currently living with her [age] year old son in premises owned by her brother. She pays $500 per week in rent. Her son studies at TAFE and is also working as an apprentice in the building industry. The applicant works at a [business] owned by her sister. She previously had her own [business] in the city for over 5 years, but she sold that.
She confirmed that she came to Australia in 1999 and has not departed since then. She came here on a student visa. She said she studied an English course, and a [Qualification 1]. After that she made various visa applications including a Partner visa application and later a Parent visa application. The partner application was refused because her husband apparently was already married when he married her so the marriage was found to be invalid. The applicant said she only found this out during the visa application process and the relationship ended. Subsequently she married again but divorced this husband. He did not sponsor her for a visa because she would have had to depart the country to apply and she said she was afraid to go back. The Tribunal asked the applicant about her son’s citizenship status. She said he is an Australian citizen, on the basis of being born here and having lived here for such a long time. His citizenship is not on the basis of his father, as the father is not named on his birth certificate. The applicant is not certain who the father is. Her son tried to sponsor her for a parent visa but she was told she has to apply for it off shore, and did not want to go.
The applicant has a sister and brother in Australia as well as her son. They both came after her, and both came on student visas. They are both married. Her sister has permanent resident status on the basis of her husband’s skilled visa application. Her brother married in Australia and is waiting on the finalisation of a partner visa application.
In Vietnam the applicant has parents and one brother. They live together in her father’s house in Hai Phoung. Her parents are no longer working but the applicant was unsure of their source of income support. She believes they live from their savings. She and her siblings sometimes send them money. Her brother is not currently working. He recently underwent [specified] surgery. The family, including in Australia, contributed to the cost of the [medical] procedure.
The Tribunal discussed with the applicant her protection claims. She confirmed that that she made two Statutory Declarations, one dated November 2015 lodged with the application and one more recently in August 2020.
With regard to the application before the Department the applicant said her then representative did not inform her about the interview and she did not know she had been invited to one. She said she wanted to provide more information at an interview and was denied that opportunity. The Tribunal noted that the information she provided in her more recent statement regarding her actions in 2015 are not mentioned in the first statement dated November 2015. Specifically, it is not mentioned that she became involved with the Viet Tan organisation in 2015. The applicant repeated that she wanted the opportunity to speak about her situation at an interview before the Department and was denied that opportunity.
The Tribunal asked her to explain why she made this visa application in 2015. She said from the beginning when she arrived in Australia she knew this country had freedom of speech and human rights. She is a frank and up front person and it is very easy for her to come into conflict in her country with the authorities.
The Tribunal asked the applicant what she was doing before she came to Australia. She said she completed high school and studied for the entrance exams. Then she obtained her visa to come to Australia and came here. She did not study at post secondary level or work in Vietnam before coming to Australia. The Tribunal asked if she was involved in any political activities or with any groups. She said she did not, she only had discussions and disagreements with people around her.
She said it was not until 2015 that she came to know about the organisation called Viet Tan. She found out about them around January 2015 from organisations online. She decided they had a similar view to her and she started to participate in their activities and events. When asked what they were about she said they were active in criticising the Vietnamese government and protecting human rights. They organised meetings to protest and protect human rights.
The Tribunal asked if she had any involvement before 2015? She said before that she would only get frustrated by the inhumanity of the situation in Vietnam. The applicant referred to the situation concerning the Hoang Sa Islands, the Formosa incident and issues relating to Chinese factories in Central Vietnam. She talked about the actions of the Vietnamese government and their repression against people who opposed them. She said she learned about all of this in 2015 and not before that. She referred to an incident in 2017 where a man was arrested and sentenced to 20 years imprisonment. She became angry and started to voice her opinions. She said her participation was mostly in private because she was still afraid of acting publicly. She joined Viet Tan and started attending events.
The Tribunal asked the applicant what events she attended. She said she attended protests in support of Chau Van Kham (whom she initially referred to as Chau Van Diem), who was an activist who was arrested and sentenced to 12 years as a terrorist. He was a long term activist of Viet Tan for over 10 years. He returned to Vietnam via a secret route, through Thailand and Malaysia but despite all the secrecy he was located and arrested. He was arrested because of his membership of Viet Tan and activities against the government. Anyone who engages in activities against the government can be accused of terrorism.
The applicant stated that because of her fear of repercussions she mostly participated in secret or private and not in public. She then said that she participated in three activities protesting against what happened to Chau Van Kham, [in] January, [March] and [November] 2019. On each of these occasions she joined a bus that travelled to Canberra to protest outside the Australian Parliament house. These events were organised by the Chairman Po Huy and Do Thanh Phoung. She has only provided photos from one of these events because she does not have photos of the other ones. [In] March 2019 she also attended a mass at [a church] to pray for Chau Van Kham. Another activity she engaged in was [in] April 2019 which is the National Day for the Communist Party but it is also the date the refugees lost their country. She attended an event organised by the organisation in [Suburb 1].
The Tribunal again put to the applicant that she did not mention anything about her involvement in, or even knowledge of, Viet Tan in her first Statutory Declaration lodged with the application in November 2015. It explained to her that under s423A of the Migration Act the Tribunal must draw an adverse inference about claims and evidence that were not put before the Department unless a reasonable explanation is given for not providing the claim/information earlier. Given that she has now stated that she came to know and become involved with this organisation since 2015, why didn’t she mention it earlier to the Department. In response she explained that she wanted to discuss it in more detail at an interview but she was denied the opportunity. She only knew about the interview when told by her current new representative. Her English was limited when she was communicating with her previous representative, and this may also explain the absence of this information.
The Tribunal put to the applicant another issue that arises from these new claims is s5J(6) of the Act which states that conduct that is engaged in after coming to Australia solely to strengthen a refugee claim must be disregarded. The Tribunal may have concerns given the timing of her claimed political activities that she has participated in these activities only for the purpose of strengthening a refugee claim and invited her response to that. The applicant said that while she can understand the Tribunal’s concern given the timing this is not the case. She has always had these views but they were held privately. Her fears arose only after she became involved more publicly with Viet Tan in 2015. People started to tell her that she may be at risk, and this led to her making the application. If the Tribunal requires more evidence of her involvement she asks for further time to provide this evidence, however, many people are similarly afraid about going public with their involvement. Given what happened to Chau Van Kham, who was a well known activist, who even tried to keep his route secret, but was nevertheless arrested, people are afraid of the implications. The applicant understands that even people who are less well known or active in private are at risk of harm in Vietnam.
The Tribunal asked the applicant if she has knowledge of anyone who has faced this, as the information before the Tribunal suggests it is mostly those with a higher profile that are subject to adverse attention from authorities in Vietnam. In response the applicant referred again to Chau Van Kham and another case of Hoang Co Minh who was a refugee who came to Australia by boat and was arrested and later suicided.
The Tribunal asked the applicant what she fears will happen to her if returned. She said she is scared of arrest on arrival and being charged with propaganda against the government.
When asked why a person of her level of activity would be at risk of harm, she referred again to Chau Van Kham and what happened to him. The Tribunal noted that it was familiar with his case, but he had some profile as an activist which seems to be quite different to her own profile and level of activity. In response the applicant said no one knows what can happen in the future and she is afraid. She is also afraid that there may be spies within the Viet Tan organisation here. She then referred to the Dong Tam issue in respect of which recently 12 US Congressmen spoke out about. The applicant stated that she is concerned that the government takes action against normal, ordinary people who speak out about issues and express political opinions.

The Tribunal repeated that its concern in her case is the limited history of activism on her part in Vietnam and in Australia and that she has only very recently been involved with this organisation which may lead the Tribunal to conclude she is not genuinely involved nor will she be at risk for this reason on return. She said in response that it is not recent, but rather for the past 5 years. She can provide more evidence if necessary. She also repeated that even low profile ordinary people are at risk in Vietnam. Because of her character and her strongly held opinions, she will attract adverse attention and be at risk of harm.
When asked how she would support the organisation upon return the applicant said she would take instructions from the leadership. For example she would speak up about issues like the Formosa incident, and if there are land disputes she would voice opposition to it. This would lead her to be charged.
The Tribunal put to the applicant another issue of concern is why she waited until 2015 to make this application if, as she claims, she has been afraid to go back for some time. She said that it was only after she began to participate with Viet Tan that she realised the risk to her of going back and that’s why she lodged the application then.
The Tribunal asked the applicant if there was any other reason for her to fear return, noting she mentioned her criminal charges history in her first Statutory Declaration. It noted that country information before the Tribunal indicated that, despite provision in the Penal Code to re-examine criminal charges, there is no evidence the government does that when a person has been dealt with by the criminal justice system already. She said that in her case she was never imprisoned, she only got a suspended sentence, but she is still afraid given the unpredictability of the future. She repeated that because of her nature and character, her parents sent her out of the country to ensure she did not face harm there. She never returned in the past 20 years because of her fears of harm.
The Tribunal noted that most of the evidence she has provided today about the Viet Tan and her fears of return relating to this organisation is available publicly and the Tribunal may have concerns that she learned it for the purposes of this application and is not a genuine follower or activist. In response the applicant said that her activity since 2015 is all true and she has a fear of return on this basis.
The Tribunal invited the representative to make submissions. She addressed the delegate’s decision, submitting the only issue is whether there is a real chance of harm and in this respect she refers the Tribunal to paragraphs 3.56 and 4.15 of the DFAT Report. She argues the evidence supports that even low level activists are at moderate risk of harm. She repeated the applicant’s claim that the experience of Chau Van Kham is evidence that even if kept in secret a person may be at risk of arrest and harm and that the applicant has explained her delay in making the application because it was only after she started her involvement with Viet Tan she understood the risk to her.
After the hearing, on 26 October 2020, the applicant provided a support letter from [Mr B] stating that he knows the applicant for many years, having first met her at the annual 30 April event of the Fall of Saigon in 2015. The writer states that they are a human rights activist who has attended and supported many anti communist activities in Australia, and confirms the applicant has attended and participated in various protests and meetings and lists four specific events they were both at.
FINDINGS AND REASONS
Nationality
On the basis of her Vietnamese passport presented with the application, the Tribunal accepts the applicant is a national of Vietnam and considers Vietnam is the receiving country for the purpose of assessing her claims against the complementary protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The applicant claims to fear return to Vietnam on the basis of her political opinion against the Communist Government of Vietnam and association and activities engaged in with members of the organisation Viet Tan in Australia. She claims she became involved with Viet Tan since January 2015 and has attended various events and activities with and on behalf of this organisation, since then and specifically referred to a number of events attended during 2019.
The Tribunal notes that in her original Statutory Declaration dated 26 November 2015 setting out her protection claims at the time of lodgement of the application, she made no mention of this organisation or participation in protest events or political activities. She referred to her fear of harm upon return to Vietnam because of her ‘free thinking and expression to speak up about political affairs’ and her opinions about the government in Vietnam, but made no mention of being a member of, or any association with Viet Tan here or any protests or activities she had participated in. She lodged her application with the assistance of a registered migration agent. She was invited to an interview with the Department to further discuss her protection claims but, though her representative, she declined the invitation.
It was only in her Statutory Declaration dated 12 August 2020, provided to the Tribunal on that date that she referred to Viet Tan and her involvement with them since 2015. In support of these claims she has provided two support letters from members of the Vietnamese community and some photos showing her in attendance at protest activities. At the hearing she told the Tribunal that it was because of her involvement in these events and protests and associations with Viet Tan that she came to realise the risk to her upon return and this was why she lodged the protection visa application in 2015.
Considering the timing and content of her evidence the Tribunal has significant concerns about the genuineness and motivation of the applicant’s claims relating to her political activities and association with Viet Tan.
She failed to mention her involvement with, or knowledge of, Viet Tan or any protest events or political activism or activity in Australia in her original statement of claims lodged with the application. Her response when asked why she did not mention Viet Tan or her participation in any specific events in her initial Statutory Declaration was that she wanted to provide more detail in an interview but was denied the opportunity. The Tribunal has carefully considered her explanation and the circumstances and content of her application for protection lodged with the Department, and it does not accept that she has provided a reasonable explanation for the omission of this information at the primary stage. The Tribunal finds it inconsistent and contradictory that she told the Tribunal it was her association with Viet Tan that triggered her fear of returning and the reason she decided to lodge a protection application in Australia when she did but did not mention this in her original statement of protection claims. She was assisted by a registered migration agent to prepare her application and the content of the Statutory Declaration mentions advice and information she was given. The Tribunal also does not accept that she was not aware of the Department interview, given specific evidence on the file of an email from her representative advising that she declined the offer of interview and requested a decision be made on the papers.
Having regard to s423A of the Act (requiring the Tribunal to draw an adverse inference as to the credibility of claims or evidence not provided at the Department stage unless a reasonable explanation is provided), the Tribunal finds the applicant has not provided a reasonable explanation and draws an adverse inference of the credibility and genuine motivation of her involvement with the Viet Tan organisation and the level and extent of her engagement in activities and events associated with them. It does not accept that she was involved from 2015 as claimed, and more likely commenced attending activities after that time.
It has considered the supporting evidence provided of photos and support letters from [Mr A] and [Mr B], and her oral evidence at hearing about the events and activities she has participated in. On the basis of this evidence it is prepared to accept that she has attended the claimed events and protests organised by the Vietnamese community in Sydney and Canberra, including events arranged by, or attended by, members of the Viet Tan organisation. She demonstrated a reasonable, though basic, level of knowledge of this organisation, which the Tribunal notes is easily available to be learned from open source material.[1] The Tribunal accepts that Viet Tan are among the organisations behind events and protests organised in Australia against the Vietnamese government and her attendance at these events is consistent with support for such groups and their views. However, it considers her evidence of attending a handful of events and protests over the past few years, suggests she has been, at most, a low level participant with no organising profile or role. Although she asserted in her August 2020 Statutory Declaration that she is a member of Viet Tan, she has provided no evidence of membership of this or any other organisation. The Tribunal does not accept her claim made in her Statutory Declaration of being in a ‘participative’ role. It found her oral testimony at the hearing did not support this. She told the Tribunal she mostly participated in secret or in private and not in public, and only referred to attending a handful of events in 2019.
[1] For example in the DFAT Country Information Report Vietnam 12 December 2019 para 3.47; and website >
The applicant’s evidence is that she has had no history of political activism or activity in Vietnam prior to coming to Australia, and no history of political activity in Australia from 1999 until her recent attendance in protests and events in the past few years.
In light of the timing of the applicant’s claimed political activity, the Tribunal has considered s.5J(6) of the Act, addressing whether person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
While on the one hand the timing of the applicant’s recent involvement in anti Vietnamese government events and protests, likely following the delegate’s refusal decision, strongly suggests it was done solely for the purpose of strengthening the claim to be a refugee, the Tribunal has considered her response when this was put to her, together with her original statement of claims indicating her general political opinions and views, and the circumstance of the lengthy period she has been outside Vietnam without returning. Taking these into account, it has decided to give her the benefit of doubt and accept, as plausible and credible, that she has long held anti- communist political views and her recent engagement in these events and activities may be consistent with her existing political opinions and ideology and therefore was not solely to strengthen her protection claims.
On this basis the Tribunal accepts the applicant is likely not a supporter of the current government and ideology in Vietnam, and has in recent times participated in anti Vietnamese government events and protests in Australia. It does not, however, accept that she played any organising, co-ordinating or activist role in these events beyond attendance at occasional events and protests in recent years. Given her lack of any activist history in Vietnam or Australia, and the long period of absence from the country during which time she has had no ongoing engagement in any specific issues or concerns, it does not accept that she will engage in political activity or activism that will bring her to the attention of the authorities upon her return. The Tribunal has considered her evidence about issues that have been the subject of adverse government action in Vietnam in recent years, such as Formosa, Dong Tam and the sentencing of Chau Van Kham, and observes that each of these are referred to in the latest DFAT Country Information Report on Vietnam, suggesting she may have studied, learned and rehearsed her evidence to support her claims, adding to the Tribunal’s underlying concerns about the genuineness of her political convictions. The Tribunal was not otherwise convinced about her knowledge of or commitment to human rights or political concerns in Vietnam. Her lack of involvement or engagement in politics or activism in Vietnam in the past and limited engagement in Australia also do not support that she will get involved in activities of this nature upon return to Vietnam in the reasonably foreseeable future.
The Tribunal has had regard to country information prepared by DFAT and other sources[2] about the treatment of political activists in Vietnam. DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation and are unlikely to receive a fair trial. It acknowledges that DFAT assesses that even low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.[3] However, having regard to the findings above relating to the applicant’s activities and commitment to future political activism, the Tribunal is not satisfied that she comes within any of these profiles.
[2] UK Home Office , Country Policy and Information Note Vietnam: Opposition to the State, September 2018
[3] DFAT Country Information Report Vietnam 2019 – [3.56]
In conclusion, the Tribunal is prepared to accept that the applicant may have taken part in some anti-Vietnamese government protest activity with other members of the Vietnamese community in Australia in the recent past. The Tribunal has had regard to the applicant’s evidence and finds that she is not an organiser or an anti-Vietnamese government political activist. Given the applicant’s limited involvement in protest activity in Australia, and lack of any past political history or profile in Vietnam, the Tribunal does not accept the applicant will take part in anti-government political protests or activity if she returns to Vietnam in the reasonably foreseeable future and therefore does not face a real chance of serious harm on this basis upon return.
The Tribunal has also considered the applicant’s claim, made in her first Statutory Declaration, of fear of harm arising from her criminal charges history in Australia. Evidence before the Tribunal indicates the applicant was charged and convicted for drug related charges and served out a period of suspended sentence. Country information before the Tribunal indicates that, despite provision in the Penal Code to re-examine criminal charges, there is no evidence the government does that when a person has been dealt with by the criminal justice system already[4] and on this basis it finds there is not a real chance she will face serious harm upon return for this reason.
[4] DFAT Country Information Report Vietnam 2019
The Tribunal notes the applicant left Vietnam over 20 years ago and has not returned since then. It acknowledges that she would feel apprehension and trepidation about returning after all of this time. She has family there, including parents and a brother. She would therefore not be returning without any family support. She has demonstrated herself to be resilient and resourceful, living and supporting herself and her son for many years in Australia despite her insecure visa status. Therefore, while she may have some initial difficulties establishing herself and settling in, the Tribunal is not satisfied that she faces a real chance of significant economic hardship threatening her capacity to subsist. There is no evidence that she will be denied access to basic services, threatening her capacity to subsist; or be denied the capacity to earn a livelihood of any kind, for reasons of her political opinion, as returnee after a long absence, or any other specified reason.
For the reasons given above, and considering her claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). On the basis of the findings above regarding the applicant’s background and profile, and that she will not participate in political activities or activism upon return, the Tribunal is not satisfied there are substantial grounds for believing there is a real risk she will suffer significant harm, within the meaning of that term in s36(2A). As indicated above, even if she were to experience difficulties establishing herself and settling in after her long period of absence, the Tribunal is not satisfied that financial hardship or other challenges settling in constitutes significant harm as contemplated by s36(2A). The Tribunal has considered the claim arising on the material before it, of mental harm to her as a result of being separated from her son, however while acknowledging that separation would be difficult for her and her son, the Tribunal finds that mental harm resulting from the separation of a family member arising solely from the act of removal of an applicant from Australia to her receiving country does not constitute significant harm.[5]
[5] GLD18 v MHA [2020] FCAFC 2; SZRSN v MIAC [2013] FCA 751.
Considering her claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5819

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction