1708434 (Refugee)

[2022] AATA 574

1708434 (Refugee) [2022] AATA 574 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708434

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Michael Hawkins AM

DATE:2 February 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 02 February 2022 at 8:30am

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – membership and activity in opposition political party – fundraising, protests and social media/blogging – returned failed asylum seeker – credibility – original claim of fear of harm from abusive step-father abandoned and new claim made shortly before hearing – political activity dates from after delegate’s decision – unconvincing explanation of timing and motivation – conduct not otherwise than for purpose of strengthening claim – fear of harm not well-founded – complementary protection – country information – party outlawed within Vietnam and social media activity monitored – harassment, arrests, detention and convictions of members – applicant’s own social media activity limited and mostly private – publicly identified on party’s social media – no state protection available or relocation possible – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(6), 36(2)(a), (aa), (2B), 45AA, 65, 91R(3)
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCACA 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (FCA, NG994 of 1993)

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 March 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 25 June 2014.

3. The delegate refused to grant the visa on the basis that applicants were not refugees as defined by Article 1A(2) of the Refugees Convention and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.

4. The applicant had applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), 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. However, the delegate made a decision to refuse to grant the visa on the basis that the applicant did not meet the criteria for a Protection (Class XA) visa.

5. The applicant sought a review of the delegate’s decision.

6. The Tribunal (differently constituted) set aside the decision of the delegate and substituted a decision that the application for a Protection (Class XA) visa is not valid and cannot be considered.

7. The application was reconsidered by the Department and the delegate refused to grant the visa on 27 March 2017.

8. The applicant sought a review of the delegate’s decision to this Tribunal.

9. The applicant appeared before the Tribunal on 31 January 2022 to give evidence and present arguments.  

10. The applicant was represented in relation to the review and his representative attended the hearing.

    RELEVANT LAW

11. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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

12. 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).

13. 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.

14. 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.

15. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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

22. 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’).

23. ‘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.

24. 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.

    Mandatory considerations

25. 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

26. The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background:

27. The applicant is a [Age]-year-old national of Vietnam.

28. The applicant first arrived in Australia on [in] May 2013. He has remained onshore since.

29. The applicant applied for a protection visa on 25 June 2014. The application was refused by a delegate of the Minister for Immigration in a decision made on 23 December 2014.

30. As detailed above, the Department reconsidered the matter and by decision dated 27 March 2017, the application was again refused by a delegate of the Minister for Home Affairs.

31. On 18 April 2017, the applicant applied for merits review of the Department’s decision to refuse his application for a protection visa.

    Claims:

32. The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision.

33. The applicant states he has no religion.

34. The applicant claims he comes from a rich family in Vietnam. He claims his stepfather had his own successful [business].

35. The applicant claims that when he was seven years old, his stepfather discovered that he (the applicant) was not his legitimate child. He claims that ever since then, his stepfather started harassing and caused problems and difficulties for him and his mother. He claims his stepfather called the police on many occasions and had him detained or beaten.

36. The applicant claims his mother had no power in the relationship and when she tried to stand up to defend him, his stepfather beat her.

37. The applicant claims that about three years ago, his stepfather asked the police to frame and falsely accuse him of stealing national property (an electrical cable). He claims that as a result, he was detained and beaten by the police. He claims he was imprisoned for a month for causing disturbance in a public place.

38. The applicant claims that at the completion of his prison sentence, his stepfather picked him up from the prison and forced him to return to his house. He claims he tried to run away from home on a number of occasions but each time he did so, his stepfather was able to arrange for the police to locate him and return him back to his house.

39. The applicant claims his stepfather did not want him to leave his house as he wanted to keep him under his control and harass him.

40. The applicant claims that when he finished school, he was forced to work for his stepfather.

41. The applicant claims that a few months before he came to Australia, he was beaten by his stepfather. He claims he was hit in the [Body part] with [an Object] and this has left his [Body part function] permanently damaged.

42. The applicant realised that if he stayed in Vietnam, he would never be able to get away from his stepfather. He claims he went to his uncle's house to hide from his stepfather.

43. The applicant claims his uncle helped him to escape from Vietnam. He claims he asked his mother to send him all his documents, but they had been taken by his stepfather, hence he could not live in another area of Vietnam.

44. The applicant claims that if he were to return to Vietnam, he fears he will continue to be subject to cruel and inhuman treatment at the hands of his stepfather, who is rich and powerful. He claims his stepfather wants to control him and continue to harm him in revenge for the shame his (the applicant's) mother caused him.

45. The applicant claims he fears he will be killed by his stepfather if he is returned to Vietnam. He claims he also fears he will be arrested and detained by the Vietnamese government because he escaped from Vietnam and sought asylum in Australia.

46. The applicant claims the authorities of Vietnam will not protect him from his stepfather. He claims the Vietnamese government will not get involved in family disputes. He claims his stepfather is wealthy and is able to bribe the police.

47. The applicant claims relocation in Vietnam is not a reasonable option. He claims he has no family in other parts of Vietnam who can assist him on a long-term basis.

48. On 10 November 2014, after the applicant’s protection visa interview the applicant's migration agent provided a written submission in support of the applicant's claims for protection. In her submission, the migration agent refers to the applicant being a member of a particular social group (failed asylum seeker). It also states that the applicant is owed complementary protection as he faces a real chance of torture, cruel, inhuman or degrading treatment or punishment in the form of domestic violence from his stepfather and that the Vietnamese authorities cannot provide him with State protection due to police corruption and due to his stepfather's wealth. It is further submitted that the applicant faces prosecution on return to Vietnam as a consequence of being a returned asylum seeker and that he has a sur-place claim due to the privacy breach in February 2014 by the Department of Immigration and Border Protection and because of the visit to [Detention centre] in August 2013 by the Vietnamese delegation.

    Statutory declaration of the Applicant dated 25 January 2022

49. On 25 January 2022, the applicant submitted to the Tribunal through his representative a statutory declaration, which was sworn on the same date.

50. In the statutory declaration, the applicant states he wishes to correct the incorrect information he made in his protection visa application. He states he did not tell the truth about his claims because he was afraid of being deported and arrested by the Vietnamese authorities. He further states that he was interviewed by the Vietnamese authorities while he was in detention, so the Vietnamese government is already aware of his identity and protection claims. He further states that he was afraid that if the Vietnamese authorities knew about his political claims, they would have the evidence to arrest him if he were deported to Vietnam. He states he has decided to tell the truth because he understands this would be his last chance to tell the Department about his claims.

51. The applicant states his identity, as outlined in his protection visa application, is correct.

    Member of Viet Tan

52. The applicant claims he is a member of Viet Tan.

53. The applicant claims that in 2018, he joined Viet Tan’s fundraising activities, protests and general activities in [State]. He claims he attended Viet Tan’s courses to learn about the organisation’s history and [in] May 2020, he passed the test to become an official member of Viet Tan.

54. The applicant claims he is responsible for the fundraising activities of the Viet Tan [City] Chapter. He claims he takes part in organising a fundraising activity twice a month, however the activities have slowed down since the COVID-19 pandemic and most of their activities have been conducted online.

55. The applicant claims he raises money to contribute to Viet Tan’s main pool of funding. He claims the main purpose is to support Vietnamese activities in Vietnam to conduct protests and prepare daily reports on human rights issues in Vietnam to various overseas organisations.

56. The applicant claims he attended a protest organised by Viet Tan in November 2020 at [Suburb] in [Sate] to raise awareness and call the Vietnamese government to free Tran Hoa Binh, Le Dinh Luong and Nguyen Van Hoa. He claims these people are human rights activists who were unjustly detained by the Vietnamese government for raising their voice. He claims he did not take photos at this event and he did not know he needed photos to evidence his participation in the protests.

57. The applicant claims his participation in Viet Tan was solely for the purpose of fighting for the freedom of Vietnam.

58. The applicant claims that all members of Viet Tan in Australia have been labelled as terrorists and the Vietnamese government has been very critical of anyone linked to Viet Tan.

59. The applicant claims he believes he would be arrested as soon as he arrives at the airport in Vietnam.

60. The applicant claims he actively supports Viet Tan on social media. He claims he often shares articles which are critical of the Vietnamese government on [Social media], because the public needs to know the truth about the government’s wrongdoings. He claims most of the articles he has shared have been reported and taken down by [Social media] and he is unable to obtain a copy of the removed posts.

61. The applicant claims the Vietnamese government employs online troops to report content and articles which are critical of the government, as [Social media] removes posts which have been reported many times. He claims that this is how the Vietnamese government controls the content on [Social media] accounts of people who are outside the country.

1. The applicant claims his photo was shared on Viet Tan’s official [Social media] page on [Date], which is [Explanation of date].

2. The applicant claims that all of his blogging activities are also critical of the Vietnamese government and adverse to their interests.

3. The applicant claims the Vietnamese government monitors Viet Tan’s social media page very closely. He claims to know that the Vietnamese government already knows that he is an active member of Viet Tan because of his participation in Viet Tan activities and his photo was shared on Viet Tan’s [Social media] page.

4. The applicant claims the Vietnamese government has arrested many bloggers over simple comments and criticisms made on [Social media].

5. The applicant claims his involvement with Viet Tan will result in his arrest and serious persecution if he is returned to Vietnam.

   Interview with the Vietnamese authorities

6. The applicant claims that he was interviewed by the Vietnamese authorities in-person while he was in a detention centre. He claims that during the interview, the Vietnamese authorities collected information about him and his family in Vietnam. He claims the Vietnamese authorities already know that he is seeking protection in Australia.

7. The applicant claims the Vietnamese government has evidence of his illegal departure and his full identity.

   Internal relocation

8. The applicant claims internal relocation is not an option for him, because he must be listed on a wanted list by the Vietnamese government and he will be arrested upon arrival in Vietnam.

9. The applicant claims the Vietnamese government would not let him go free and resettle in a new location.

10. The applicant claims his jail sentence will be for years.

11. The applicant claims it is a requirement in Vietnam to be named in a family registration book. He claims his residential record has been lost due to his long period of absence from his Vietnamese residential address.

12. The applicant claims he will be subjected to harassment and discrimination anywhere he tries to relocate to, because his identity and record would be known to the Vietnamese police after he was interviewed by the Vietnamese authorities in detention.

    State protection

13. The applicant claims the Vietnamese authorities will not protect him if he returns to Vietnam, because they are the people who will harm him. He claims the government authorities and the police are one party and they will work together to place him in jail. He claims he will not have access to a fair trial, because the Court is controlled by the government.

14. The applicant claims that anyone who assists him would place themselves at risk of the same persecution as him. He claims it is dangerous to speak out against the government, so no one could protect him.

    Evidence:

15. The Tribunal has before it a range of material, including, relevantly:

    (a)the applicant’s protection visa application forms, which were lodged on 25 June 2014;

    (b)the applicant’s identity documents provided to the Department, being copies of his birth certificate, school certificate and household registration book;

    (c)the protection visa decision record dated 27 March 2017 (delegate’s decision), a copy of which has been provided to the Tribunal by the applicant;

    (d)the application for review form dated 18 April 2017;

    (e)Department file [Number] concerning the applicant’s protection visa application, which includes all documents submitted by the applicant in support of his protection visa application, including:

    ·    his statement of claims dated 18 June 2014;

    ·    written submissions from his representative dated 10 November 2014; and

    ·    a copy of his mother’s death certificate;

    (f)all documents submitted to the Tribunal in support of the applicant’s review application, including:

    ·a statutory declaration from the applicant sworn on 25 January 2022;

    ·screenshots of [Social media] posts made by the applicant, including posts he made that were shared on the Viet Tan [Social media] page, and [Social media] posts shared by the applicant onto his page;

    ·a confirmation of membership letter issued by [Mr A], Representative of the [City] Chapter of Viet Tan dated 14 June 2021;

    ·an untranslated document containing photographs of the applicant standing in front of Viet Tan signage and flag;

    ·photographs of the applicant at a Viet Tan Acceding Ceremony, fundraising events and ‘propaganda activities’; and

    ·links to various news articles concerning the treatment of asylum seekers and Viet Tan members in Vietnam.

    (g)country information on Vietnam, as set out below.

    Country of reference:

16. The applicant claims to be a citizen of Vietnam. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

17. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing:

18. The applicant appeared before the Tribunal on 31 January 2022 by video to give evidence and present arguments. The hearing was assisted by an interpreter in the Vietnamese and English languages.

19. The applicant was represented in relation to the review and his representative attended the hearing by video.

20. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

21. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Vietnam. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Vietnam. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

22. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Vietnam.

23. The Tribunal discussed his claims as summarised in the applicant’s protection visa application and the delegate’s decision. The Tribunal confirmed with the applicant that according to his statement of 25 January 2022, he was now recanting his claims, having apologised for not having told the truth about his claims. The applicant confirmed that was the case.

24. The Tribunal confirmed with the applicant that he was making a new claim based on his being a member of Viet Tan and having made numerous [Social media] postings in support of Viet Tan and being critical of the Vietnamese Government. He confirmed that was the case and that he had also posted on the Viet Tan official [Social media] page, and that his photo was shared on the Viet Tan official [Social media] page.

25. The Tribunal confirmed with the representative that the applicant was only recanting his claims in relation to the family issues that he had made, but still claimed harm by reason of the interview he had had with the Vietnamese authorities and by reason of being a failed asylum seeker.

26. The Tribunal also confirmed with the Representative the nature of the documents and evidence submitted by her by email on 25 January 2022. The Tribunal had noted that a large number of photos and [Social media] entries that had not been translated were included and took the opportunity to have the Representative explain their relevance. The Tribunal also noted the plethora of media articles and other country information relating to Viet Tan and its acceptance or otherwise by the Vietnamese government and the treatment of its members.

    Assessment of claims and evidence, and findings:

27. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

28. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

29. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

30. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

31. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

    [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

32. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

33. The Tribunal referred to the applicant’s statutory declaration of 25 January 2022, noting particularly the oath signed by the applicant which it read out to the applicant: “I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence….” The Tribunal then referred to the Statement made by the applicant on 18 June 2014 which formed part of his protection visa application which the applicant also pledged was the truth. The Tribunal asked the applicant, given that he had sworn that both were true, and that he now stated that the claims contained in the 18 June 2014 statement were actually untruthful, how could the Tribunal accept that what he states now is the truth?

34. The applicant repeated that he apologised for the untruths he had stated. He explained that he was scared of being sent back to Vietnam. The Tribunal noted that the applicant appeared no less scared now, given his new claims, of being returned to Vietnam, yet expected the Tribunal to believe him. The applicant explained that his new claims were backed by evidence. The Tribunal stated that it would consider that.

35. Noting that the representative had submitted that the applicant maintained his refugee claims in relation to being a failed asylum seeker, and having been interviewed by the Vietnamese authorities whilst he was in detention, the Tribunal advised that it would discuss with the applicant those two issues first.

36. The Tribunal discussed with the applicant his concerns about the presence of the [Vietnamese delegation] at the detention centre that he was at.

37. The Tribunal asked the applicant whether he could remember the date that he was interviewed. He replied that it was within a couple of months of his arrival in Australia. He thought maybe May in 2013.

38. The Tribunal noted the applicant’s claim that he feared harm from the Vietnamese authorities due to the fact that he was visited by the Vietnamese police whilst in detention and that they were aware of his identity and his protection claims and his “political claims for protection”.

100.   The Tribunal also notes the applicant’s evidence that he claimed to have met with members of the Vietnamese delegation.

101.   The Tribunal asked the applicant whether he had been interviewed by the delegation. He replied that he received a Notice to attend an interview and did so.

102.   The Tribunal asked the applicant whether it was the case that he had a choice as to whether to attend the interview. The applicant confirmed that he attended the interview but that when he returned and told other people about it, some of them chose not to attend it.

103.   The Tribunal noted that Vietnamese authorities visited at the invitation of the Department [in] August 2013. The date was reasonably consistent with the date provided by the applicant. The Tribunal noted that the applicant had not applied for a protection visa until June 2014 and had not made any claims of a political nature until January 2022. It queried then how the Vietnamese authorities could have known about his protection claims.

104.   The Tribunal explained that the [Delegation] was a delegation of Vietnamese authorities who toured a detention centre in August of 2013. The objectives of the delegation were to identify and interview Vietnamese Nationals in relation to their repatriation to Vietnam.

105.   The applicant agreed that they only inquired about his identity and where he had come from. But he went on to state that there was more to it than what we understand, as some were sent back to Vietnam as a result of the interview. The Tribunal accepted that may have been the case, and that some may have elected not to make refugee claims and instead accepted the offer of repatriation.

106.   Whilst the Tribunal accepts that the applicant was present at the Immigration Detention Centre in August 2013 when Vietnamese authorities visited at the invitation of the Department, the applicant has made clear in his evidence that the Vietnamese authorities were not told by him anything about his protection claims. No evidence was produced confirming that his protection claims were provided to the officials. In any event it is noted that he did not make his protection visa application until June 2014. And even then, he had made no claims of a political nature.

107.   In the absence of any evidence that information about his protection claims were communicated to the visiting Vietnamese authorities, the Tribunal is not satisfied that his claim to fear persecution as a result of the visit by Vietnamese Officials to the detention centre is plausible. The Tribunal does not accept that the presence of Vietnamese Officials at the detention centre contributes to, or gives rise to, a real chance of serious harm if the applicant returns to Vietnam now or in the reasonably foreseeable future.

108.   The Tribunal considered the data breach issue. It noted that in February 2014, a data breach involving the accidental publication of the Department’s website contained biodata pertaining to about 10,000 asylum seekers.

109.   The document, which contained personal information such as names, dates of birth, location and nationality of those in detention, was downloaded 123 times (from multiple sources), with 104 unique IP addresses. The Tribunal noted from Country Information that of the 104 unique IP addresses, none of them were in Vietnam. The Tribunal also noted from Country Information that in no circumstances was it disclosed why individuals were detained or what, if any, visas they may have been trying to obtain.

110.   The Tribunal noted from the applicant’s claim that he believed the data breach impacted upon him.

111.   The Tribunal accepts that the applicant’s name, date of birth, address and other identifying information was incorrectly released by the Department as part of the “data breach” that occurred in February 2014.

112.   The Tribunal again notes that the applicant had not made any protection claims until June 2014, so his claims would not have been known.

113.   The Tribunal notes that the information released was basic identity information only and contained no details as to whether those persons had lodged protection claims or the details of such claims. Country Information also indicates that this information may not have been downloaded in Vietnam, though accepts that such information may have ultimately found its way to the Vietnamese government. In any event, the applicant had been interviewed by the authorities in August of 2013, and his identity and the fact that he was in Australia would have already been known to the Vietnamese authorities.

114.   Having regard to all the circumstances in this case, the Tribunal finds that the release of this data does not contribute to, or give rise to, a real chance of serious harm if the applicant returns to Vietnam now or in the reasonably foreseeable future.

115.   The applicant claimed to have left Vietnam illegally. He also claimed to fear returning to Vietnam as a failed asylum seeker. The Tribunal considered country information in relation to the fact of his unlawful departure from Vietnam and the treatment of returnees to Vietnam.

Treatment of returnees and conditions for returnees

116.   DFAT’s latest country information report on Vietnam[3] reports the following on the treatment of returnees and conditions for returnees in Vietnam:

[3] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Vietnam’ (11 January 2022) at pp 32-33 at [5.25]-[5.35].

5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.

5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.

5.27 Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.

5.28 Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.

5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.

5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.

5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.

5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.

5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.

5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.

5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.

117.   The Tribunal accepts Country Information that Vietnamese authorities target the organisers of people smuggling operations and that asylum seekers tend to be treated as the victims of crime.

118.   The Tribunal accepts that the applicant is not a people smuggler and left Vietnam having arranged passage with an agent.

119.   Country Information suggests that failed asylum seekers may be briefly detained pending identification checking procedures and may receive a fine for illegal departure.

120.   The Tribunal discussed this information with the applicant. He replied that he didn’t agree with it, as he knew a guy called [Mr B], from the Angh Province who returned from Australia and was put in jail. The Tribunal sought to clarify whether [Mr B] was jailed for no other reason than because he had returned from Australia. The applicant replied that people can be jailed for any reason, anywhere and for anything.

121.   On the basis of this Country Information, the Tribunal is satisfied that the applicant does not face a real chance of serious harm as a returnee who has left unlawfully or as a failed asylum seeker should he return to Vietnam.

122.   The Tribunal then turned to the applicant’s claim of his being a member of Viet Tan.

123.   The Tribunal asked the applicant whether he was a member of the Viet Tan. He replied that he was a member. The Tribunal noted the confirmation of membership letter issued by [Mr A], Representative of the [City] Chapter of Viet Tan, dated 14 June 2021.

124.   The Tribunal discussed with the applicant its concerns about the applicant only having recently engaged with the Viet Tan in Australia, noting there had been no political involvement or engagement in activities in Vietnam before his departure. It discussed with the applicant the provisions of s.5J(6) and s.91R(3) of the Act, which require the Minister to disregard any conduct engaged in by the applicant in Australia unless he can satisfy the Minister that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.

125.   The Tribunal noted the date of the decision of the delegate being March 2017.

126.   The Tribunal noted the date of his first engagement (according to his Statutory Declaration) with Viet Tan being June 2017.

127.   The Tribunal noted the date of his first participation in Viet Tan fund-raising activities and protests in 2018.

128.   It noted that the applicant’s claims for protection had been rejected by the delegate.

129.   It suggested to the applicant that these dates were all very coincidental and suggested to the applicant that given his claims had been rejected by the delegate, it might appear to the Tribunal that such claims as his new claims might be considered his last resort to stay in Australia and were consequently made as such.

130.   The applicant replied that that was not the case, but that he had not had the opportunity to be involved earlier, having been in detention (though the Tribunal noted the applicant had been released from detention in October 2014 upon being granted a bridging visa) and that he hadn’t had a job, a car or anywhere to live.

131.   The applicant went on to state that he knew of others who had joined the Viet Tan but had not had any success in making such a claim, and had returned to Vietnam yet he had continued his membership.

132.   The Tribunal noted that that might tend to suggest that a strategy of joining the Viet Tan and then making a protection claim might be broadly known in the community, or at least had been discussed with the applicant. It would suggest that his awareness of community information suggesting membership and involvement of the Viet Tan might strengthen a refugee claim.

133.   The Tribunal has considered that the coincidence in the dates of his new-found interest in the Viet Tan and the dates upon which he learned that his original claims failed cannot be ignored. The fact that there was an active awareness of others joining the Viet Tan and making protection claims and failing would also suggest an element of strategy to his new claims. In particular, the Tribunal noted that the applicant had not been involved in any form of protest in Vietnam and had made no previous claims, or even a hint of such a claim until the week before this hearing.

134.   The applicant has shown a readiness to make and discard claims at will. His evidence about the knowledge of his claims at the interview with the Vietnamese authorities and the data breach has been unreliable. His explanation as to why it took him so long to engage with Viet Tan in Australia (being in detention, yet the evidence shows he was released from detention in 2014) is flawed. Accordingly, and having given due weight to the observations made in the preceding paragraph, the Tribunal is not satisfied that the applicant participated in Viet Tan and attained membership otherwise than for the purpose of strengthening his claim to be a refugee.

135.   The applicant has not satisfied the Tribunal that he undertook activities with the Viet Tan in Australia otherwise than for the purpose of strengthening his claims to be a refugee. The Tribunal must therefore ignore those activities so far as his claim to be a refugee is concerned.

136.   For the reasons set out above, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Vietnamese authorities for his attempts to seek asylum in Australia, whether or not the Vietnamese authorities are aware that he sought protection in Australia.

137.   The Tribunal accepts that on return to Vietnam the applicant is not likely to be prosecuted or jailed for having committed an offence against Vietnam’s entry and exit laws by departing the country illegally, although he may be fined. The Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of his departure from Vietnam and having sought protection in Australia.

138.   The Tribunal has considered these claims in combination with the fact that the applicant has been inadvertently identified in the Immigration Department’s data breach and that he was present when the Vietnamese officials visited the detention centre. The Tribunal is satisfied that the applicant does not face a real chance of serious harm as a result of the data breach or by reason that he was present when the Vietnamese officials visited the detention centre and interviewed him.

Cumulative claims

139.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of the data breach, or that he was present when the Vietnamese officials visited his detention centre or by reason of his departure or his return as a failed asylum seeker, or any other reason if he returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vietnam. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

140.   The Tribunal has considered the applicant’s claims under complementary protection.

141. 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). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).

142.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Vietnam now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCACA 33, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.

143.   The Tribunal has already found that it is not satisfied that the applicant will be detained or persecuted on the basis of his illegal departure but acknowledges that he may face a fine. However, he would be fined pursuant to a law of general application and that law would not be applied to him in a discriminatory way.

144.   Given the Tribunal’s findings above, it is satisfied that the applicant does not face a real chance of serious harm in Vietnam for reasons of the data breach or that he was present when the Vietnamese officials visited the detention centre. Nor does it consider the applicant faces a real risk of significant harm for reasons of his departure from Vietnam, or for returning as a failed asylum seeker.

145.   The Tribunal notes that section 5J(6) and s.91R(3) applies only in relation to the consideration of the refugee status of an applicant.

146.   The Tribunal is left with the fact that the evidence is that the applicant is a member of the Viet Tan and the fact that the applicant has engaged [Social media] to repost anti-Communist views of the Viet Tan and has interacted with the Viet Tan official website and has had his photo posted upon it.

147.   The Tribunal has referenced Country Information in relation to Viet Tan.

148.   The Tribunal referenced the many articles and media reports provided to it by the representative, which were largely consistent with Country Information from the 2019 DFAT Report, as follows:

Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include:

…..

In November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist.[4]

[4] DFAT Report, Paragraph 3.53.

In a number of cases, authorities have released activists from prison and forcibly deported them from Vietnam. In May 2017, for example, authorities revoked the citizenship of a Viet Tan member and forcibly deported him to France.[5]

[5] DFAT Report, Paragraph 3.54.

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. DFAT assesses that 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.[6]

[6] DFAT Report, Paragraph 3.56.

149.   The Tribunal noted the photos of the applicant’s participation in Viet Tan activities.

150.   The Tribunal asked the applicant why he would commence such activities now given that he has no history of attending protests in Vietnam or stating any political views. The applicant replied that he now had the ability to participate, given that beforehand he had been in detention, and had no job, no car and nowhere to live. Now he has the time and chance to be involved.

151.   The Tribunal then turned to the applicant’s claim in relation to his own activities on [Social media].

152.   The Tribunal noted that his [Social media] activity appeared to consist of reposting anti-Communist views of Viet Tan. The Tribunal noted that he had commenced such activities [in] June 2017.

153.   The Tribunal advised the applicant that it had sought to visit the applicant’s [Social media] profile, only to find that it was set as a private page. The Tribunal also noted that from the [Social media] posts provided, they range from having zero reactions and zero shares to just one post having received four reactions and one share. The Tribunal sought the applicant’s response to those observations.

154.   The applicant responded that many of his friends will not respond on [Social media] for fear of the repercussions. He said that instead, they might respond by text or on Messenger. The applicant showed the Tribunal that it could access his page and showed photos that he uploaded in the past twelve months.

155.   The applicant also stressed to the Tribunal that [Social media] takes down many of his posts. To this end, the applicant showed the Tribunal (in a very animated way) how [Social media] reports activities that have been taken down. It will indicate next to the post on his page that it has been removed. The Tribunal did note that [Social media] had co-operated with the Vietnamese government to increase censorship and to remove entries that are seen as anti-government.

156.   The applicant also spoke of the number of people the government employs to monitor [Social media] and especially the Viet Tan account.

157.   The Tribunal accepts the veracity of the copies of [Social media] entries made by the applicant since [June] 2017.

158.   The Tribunal also accepts the veracity of the numerous photos tendered by the applicant of his attendance at Viet Tan events and the placement of those photos on his [Social media] account and the Viet Tan official [Social media] account. The Tribunal also accepts that he is an official member of Viet Tan, noting the letter from [Mr A] dated 14 June 2021 as representing the Viet Tan (Vietnam Reform Party) [Sate] Chapter.

159.   The Tribunal has had regard to the following country information on Vietnam relevant to the applicant’s new political claims.

Political opinion (actual or imputed)

160.   The Department of Foreign Affairs and Trade’s (DFAT) latest country information report on Vietnam[7] reports the following on people who hold an actual or imputed political opinion:

[7] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Vietnam’ (11 January 2022) at pp 18-20 at [3.49]-[3.57], [3.61]-[3.64].

3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.

3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.

3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.

3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.

3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.

3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.

3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.

3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.

3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted

Online activists and social media users

3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.

3.62 Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.

3.63 Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.

3.64 It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.

161.   The Tribunal also considered additional country information sourced itself and submitted to it by the representative.

162.   The government considers opposition pro-democracy groups such as Viet Tan to be terrorist organisations. As political opposition parties are illegal within Vietnam,[8] opposition parties are typically based overseas to avoid harassment, arrest and detention.[9] The Vietnam Reform Revolutionary Party (or Viet Tan) is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[10] In 2016, the government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism.[11] Other foreign-based opposition groups including the Brotherhood for Democracy, who campaign for human rights and democracy in Vietnam[12] and who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[13] In November 2019, Chau Van Kham, a Vietnamese/Australian dual citizen and a member of Viet Tan, was sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code)[14] and in March 2020 lost his appeal against his 12-year prison sentence for ‘financing terrorism.’[15] Chau Van Kham entered Vietnam on a false identity and was arrested in Ho Chi Minh City whilst meeting with a member of the Brotherhood for Democracy.[16]

[8] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9.

[9] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9; Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.

[10] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.

[11] Associated Press, 'Vietnam declares San Jose-based Viet Tan a terrorist group' (7 October 2016).

[12] Human Rights Watch, 'Vietnam: Drop Charges Against Rights Campaigner' (10 September 2018).

[13] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.

[14] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.26.

[15] Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020).

[16] Ben Doherty, The Guardian, 'Jailed Australian democracy activist has 'disappeared' inside Vietnam's prison system', (7 June 2020); Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020).

163.   Political prisoners are likely to be treated more harshly than ordinary inmates. A 2020 report by local NGO The 88 Project highlights the harsh conditions that the Vietnamese state has imposed upon political prisoners in recent years.[17] The report argues that ‘Vietnam has continued practices amounting to torture of political prisoners’ who have been detained or imprisoned.[18] According to the report, political prisoners are treated as a different class of person than ordinary inmates, receiving harsher treatment ‘which often amounts to torture and inhumane treatment’.[19] A US citizen recently released from incarceration in Vietnam after being charged with political offences also described being mistreated while in prison.[20]

[17] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.3.

[18] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.4.

[19] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.7.

[20] Radio Free Asia, 'Recently Released US Citizen Describes Mistreatment in Vietnamese Prison' (28 October 2020); Orange County Register, 'American released from Vietnam prison speaks out, describes ordeal' (28 October 2020).

164.   The Viet Tan Party is an opposition party run in exile which is considered by the Vietnamese government as a terrorist group.[21] Country information shows the Vietnamese government takes a strict stance against the organisation:

[21] Radio Free Asia, Vietnam: Rights lawyer disbarred, 16 August 2011, available at: [accessed 12 June 2018].

·Two Vietnamese have been convicted of ‘attempting to overthrow the people’s administration’ for among other things having received training and funding from Viet Tan abroad.[22]

·A Vietnamese-American was detained for nine months awaiting trial solely for being a member of Viet Tan.[23]

·14 members of Viet Tan were convicted to between three and 13 years in prison for ‘subversion of the administration’ by actively participating in and being members of Viet Tan.[24]

165.   The Tribunal is satisfied that the applicant will be identified as an active member of the Viet Tan and could potentially be further identified through his postings on [Social media] as an outspoken critic of the Vietnamese government and authorities, notwithstanding the reasons the Tribunal has ascribed to the objectives of the applicant in so engaging in them.

166.   The applicant has reposted on his [Social media] opinions of an organisation that the Vietnamese government considers to be a terrorist group. Country information referenced above shows that members of this group, both local residents and foreign nationals, are treated harshly. Country information indicates that as of 2005 the Vietnamese government did monitor protests and nationals living in Australia:

·Officials from the Ministry of Public Security are posted in Vietnamese embassies and consulates abroad and are given the task of monitoring the activities of overseas Vietnamese as well as Vietnamese citizens traveling abroad.

·Trusted members of the Vietnam Communist Party living abroad are often asked to report on their fellow Vietnamese to security officials. This is particularly the case with respect to university students.[25]

[22] Radio Free Asia, Vietnam: Rights lawyer disbarred, 16 August 2011, available at: [accessed 12 June 2018].

[23] Radio Free Asia, Vietnam: Activist returns home dejected, 31 January 2013, available at: [accessed 12 June 2018].

[24] UN News Service, UN human rights office concerned over convictions of 14 activists in Vietnam, 11 January 2013, available at: [accessed 12 June 2018].

[25] Thayer, Carlyle A., ‘Comments for the Australian Refugee Review Tribunal’, Johns Hopkins University Washington, D.C., 18 March 2005, quoted in RRT Country Research, Research Response VNM17238, 24 March 2005 (Q1-2)

167.   No evidence is available to suggest that this situation has changed, though the Tribunal notes the 2022 DFAT Report is silent as to any mention of the Viet Tan.

168.   Given the extraordinarily low interaction with the applicant’s [Social media] account, and the fact of the privacy settings installed, the Tribunal considers it unlikely that the Vietnamese government authorities would have monitored the [Social media] account of the applicant. On his own admission, [Social media] censors accounts of Vietnamese holders and entries in relation to Vietnam, so much of what the applicant has purported to post may have been taken down and would not have been monitored. Country information above supports the notion that low-level postings between friends would likely go unnoticed and might even be tolerated.

169.   However, the Tribunal considers it likely that the Vietnamese government would have monitored the official [Social media] account of the Viet Tan which the Tribunal has identified as a public page with over 1.2 million “likes” with multiple postings made on it every day and the applicant has established that his photos have appeared on that account describing him as a member and as attending numerous Viet Tan events.

170.   The Tribunal is satisfied that the Vietnamese government would have identified the applicant as a member of Viet Tan. The Tribunal is satisfied that were the applicant to return to Vietnam under his own identity, the authorities would identify him and connect him to the ‘terrorist’ activities that he has undertaken in Australia. Considering the earlier mentioned country information on government action against members of Viet Tan, the Tribunal is satisfied that there is a real risk that the applicant will face significant harm were he to return to Vietnam.

171.   The Tribunal is satisfied that the persecutor in this case, being the state of Vietnam which controls the entire territory of Vietnam, does not allow the applicant the opportunity to relocate nor seek state protection.

172.   The Tribunal is satisfied that the risk the applicant faces is specific to him and is not one that is faced by the population generally.

173.   The Tribunal is satisfied that the applicant cannot modify his behaviour to avoid the harm as the source of the risk is in his past behaviour which the Tribunal has found will be known to the Vietnamese state.

174.   Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is satisfied that the applicant will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Vietnam now or in the reasonably foreseeable future. 

175. Accordingly, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

176.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by Article 1A(2) of the Refugee’s Convention and therefore he is not a refugee within the meaning of the Act.

Conclusion: Complementary Protection

177.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.

Overall Conclusion:

1. 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). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   DECISION

179. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Michael Hawkins AM
Member