1710071 (Refugee) - [2019] AATA 1517

1710071 (Refugee) [2019] AATA 1517 (27 March 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710071
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Brendan Darcy
DATE OF DECISION:  27 March 2019
DATE CORRIGENDUM
SIGNED:11 April 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The date ’27 March 2009’ on the Decision Record should be replaced with ’27 March 2019’.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710071
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Brendan Darcy
DATE:27 March 2009
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 27 March 2019 at 3:02pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – political opinion – Mormon – Catholic –opposed to Vietnamese government – Bloc 8406 – credibility issues – no real chance of serious harm on religious grounds – applicant fabricated religious claims – applicant at risk of persecution because of wife’s political activities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 48, 91, 65, 424, 499
Migration Regulations 1994 (Cth) Schedule 2, rr 1.03, 1.12, 2.12

CASES
Kopalapillai v MIMA
(1998) 86 FCR 547
(1999) 93 FCR 220
(1996) 40 ALD 445
(1994) 52 FCR 437
(1994) 34 ALD 347

MIMA v Rajalingam
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan
Randhawa v MILGEA
Selvadurai v MIEA & Anor
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Background
The applicant claimed to be born on [date] in Ben Tre in Vietnam and to be a citizen of Vietnam. A copy of the biodata page in the applicant’s Vietnamese passport was provided to the Department.[1] The applicant claimed that he lived in Ho Chi Minh City from January 1999 to January 2008.
[1] [File number]
The applicant claimed has claimed to be a Mormon and also a member of a Catholic family. He provided a Baptism and Confirmation certificate stating that he was confirmed as a member of the Church of Jesus Christ of Latter-day Saints [in] July 2014.[2]
[2] [File number]
At the time the applicant arrived in Australia he was married to [Ms A]. According to Form 866C the applicant separated from his wife [in] April 2013. The applicant and his wife divorced [in] May 2014, however commenced living together again [in] March 2016, and then re-married [in] June 2016. The applicant and his wife have a son named [Master B] who was born on [date] in Australia. His birth certificate has been provided.[3] The Tribunal received advice that they were expecting a second child together in [date]. After the scheduled hearing, the applicant provided a copy of a birth certificate indicating that the applicant and Ms [A] were the biological parents of [Master C], born [date] in Australia.[4]
[3] AAT 1701071 f. 96
[4] AAT 1701071 f.137.
The applicant declared that his mother and sister live in Vietnam and his father died in 1995.
The applicant claimed on Form 80 that since graduating high school he has completed courses in [a number of subjects]. The applicant declared on Form 866C that he worked as [an occupation] in Vietnam and since January 2008 he has worked at various [locations] around [City 2].
The applicant arrived in Australia [in] January 2008 as the holder of a dependent student visa (TU 573) for which his wife was the main applicant. He was subsequently included as a dependent applicant on his wife’s application for a [a different] visa, however this application was refused by the Department on 9 April 2013 and the former Migration Review Tribunal affirmed the Department’s decision on 24 January 2014.
The applicant declared on Form 80 that he travelled to [Country 1] [in] May 2012 for a holiday and on Form 866C he declared that he returned to Vietnam in 2009 and 2012 to visit his sick parents. The applicant’s movement records indicate that he was outside Australia during the periods [in] 2009, [in] 2011, and [in] 2012.
History of proceedings
The applicant applied for a Class XA Subclass 866 visa [in] February 2014.
On 1 May 2015 the delegate refused to grant the Class XA Subclass 866 visa. The delegate was not satisfied that the applicant is a genuine Christian or follower of the Church of Latter-day Saints (LDS). The applicant sought a review from the Tribunal which affirmed the delegate’s decision on 22 December 2016.
The applicant sought review of the Tribunal’s decision from the Federal Circuit Court of Australia and [in] May 2017 the court quashed the Tribunal’s decision and directed this Tribunal to reconsider and re-determine the review application according to law. The court held the Tribunal fell into jurisdictional error because it failed to put to the applicant under s.424A or s.424AA its finding that the applicant’s wife was not owed protection and relied on this information to reject the applicant’s claim that his association with his wife would put him in danger because of her political activities.
On 14 February 2014 the applicant’s wife made a separate application for a protection visa. Her application was refused on 1 May 2015, she sought review (AAT 1507058), and the Tribunal affirmed the Department’s decision on 22 December 2016. The applicant’s wife sought review of the Tribunal’s decision from the Federal Circuit Court of Australia (FCCA) and [in] November 2017 the court dismissed her application. The applicant’s wife sought review of the FCCA decision from the Federal Court of Australia and [in] November 2018 the court dismissed her application.
On 9 May 2017 the applicant’s son, [Master B], applied for a Class XA Subclass 866 visa. His claims are based on his father’s membership of a Catholic family, his father’s status as a Mormon priest, both his parent’s Mormon faith, and his mother’s political activism. The delegate refused to grant the visa on 20 February 2018 and a review application (AAT 1806883) is currently pending before this Tribunal.
The applicant was invited to attend a Tribunal hearing on 16 October 2018. The applicant did not appear for the scheduled hearing and on 16 October 2018 the Tribunal dismissed the application for review. On 29 October 2018 the applicant requested that his application be reinstated. The Tribunal accepted the applicant’s representative’s explanation that an administrative oversight was the cause of the applicant’s failure to appear and on 30 October 2018 reinstated the application.
The applicant was invited to attend a hearing on 21 November 2018, however this hearing did not proceed because the Tribunal agreed to the applicant’s request for a postponement on the basis that his wife was due to give birth to their second child.
On 21 January 2019 the applicant requested that his review and his son’s review be heard by the Tribunal together.
The applicant appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. As requested, the Tribunal conducted a joint hearing of this review application together with the applicant’s son’s review application (AAT 1806883). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
Previous Tribunal’s findings
The Tribunal hearing the applicant’s wife’s case accepted that the applicant’s wife had contributed to Bloc 8406 by participating in protests where she waved the South Vietnamese flag [and undertook other activities].[5] It accepted that she had been involved with the Prisoners of Conscience Fund (POCF) since some time after February 2014 and that she had become an office holder of the group.[6] It found that there isn’t a real chance of serious harm to the applicant’s wife as a result of her participation in protests in Australia.[7] It considered the risk of harm to the applicant’s wife as a result of her involvement with POCF to be remote.[8] It did not accept the applicant’s wife’s social media posts constituted ‘anti-regime activities’.[9] Taking into consideration the applicant’s wife’s delay in lodging her protection visa application and that it’s lodgement followed the exhaustion of several other visa options, together with her lack of political engagement with Bloc 8406 until after the lodgement of her protection visa application, the Tribunal found that her participation in political activities was not genuine and did not accept that she would seek to express a political opinion critical of the government were she to return to Vietnam.[10]
[5] AAT 1507058 para 31
[6] AAT 1507058 para 32
[7] AAT 1507058 para 47
[8] AAT 1507058 para 50
[9] AAT 1507058 para 51
[10] AAT 1507058 para 56
The previously constituted Tribunal found that the risk of serious harm to the applicant as the result of impugned political opinions, be they from his participation in rallies or being associated with his wife, is remote.[11] It found the risk of the applicant living without a household registration card for an extended period of time is remote.[12] It accepted that in Vietnam the applicant was a practicing Catholic and the extent of the harassment he faced was participating in indoctrination sessions that gave him a headache. It also accepted that as a Catholic the applicant in some circumstances may be faced by additional bureaucracy or requests for bribes.[13]
[11] AAT 1507243 para 43
[12] AAT 1507243 para 41
[13] AAT 1507243 paras 23 and 24
The Tribunal hearing the applicant’s wife’s case, and previously constituted to hear the applicant’s case, found that the applicant and his wife had developed a genuine commitment to the Church of Jesus Christ of Latter-day Saints and if they were to return to Vietnam they would continue to practice their faith.[14] It did not accept there are limitations upon the way they can disseminate the gospel such that it would impinge upon their faith and it found they would not face harm while continuing to live their faith in Vietnam.
Summary of the applicant’s claims
[14] AAT 1507058 para 29; AAT1507243 para 28
The Tribunal received a submission dated 27 February 2018 from the applicant’s representative. It was submitted that the applicant has a well-founded fear of persecution in Vietnam because he is a Mormon priest and the husband of a political activist resulting in an imputed political opinion. It is claimed that based on the applicant’s own past, his religious status, and his wife’s profile, he would be viewed as a dissident with the intention to spread anti-government informationt ideas.
Membership of a Catholic family
In a statutory declaration dated November 2016 the applicant claimed that he was a practicing Catholic in Vietnam and his family was quite involved in the church. He claimed the Vietnamese authorities would cause his church difficulties, for example the local priest was questioned about having an anti-government agenda and made to ask the Catholic community to voluntarily repair public areas and their church services were monitored by the government.
The applicant claimed that the police threatened his mother and demanded she pay bribe money. He claimed the police threatened to de-register him from the family residence roll because of his residence overseas and he suggests this may have been motivated by his family’s Catholicism because he knows of non-Catholics who have not received the same treatment.
The applicant claimed at the hearing with the previously constituted Tribunal that job seeking and paperwork verification are problematic for Catholics.[15]
[15] AAT 1507243 para 24
In a statutory declaration dated 8 November 2016 the applicant’s wife claimed that she was not a Catholic in Vietnam, she followed the tradition of worshipping her family’s ancestors, however she had attended church with the applicant and her mother-in-law, including an annual trip to Tacxay Church in the city of Camau for the anniversary of the death of famous priest. She also stated that she and the applicant attended church every Sunday after arriving in Australia.
Business activities

On Form 866C the applicant claimed that in Vietnam his company was controlled financially by the local government and the Vietnamese government’s strict laws restricted his freedom to conduct business with foreign companies. In this regard he claims he was given a warning for dealing with some companies in [relation to particular business activities].
Applicant’s political activism
On Form 866C the applicant claimed that if returned to Vietnam he will be detained and imprisoned for being outspoken on freedom of speech.
The applicant claimed at the hearing with the previously constituted Tribunal that he participated in political rallies.[16]
Membership of the Church of Jesus Christ of Latter-day Saints (LDS)
[16] AAT 1507243 para 42
On Form 866C the applicant claimed that there are no human rights in Vietnam. He claimed that he is an Evangelist convert and he fears the Vietnamese government will put him in a re-education camp or detain him and imprison him for practising his religion.
In a statutory declaration dated November 2016 the applicant outlines his claims regarding the development of his Mormon faith from mid-2009 to 2012 during which he conversed with missionaries and read the Book of Mormon. In the middle of 2012 he started an 8 lesson course required to join the LDS church. He also attended church mass every week at [a certain location]. He was interviewed regarding his suitability to join in early 2013, however his baptism was delayed until [2014] until a larger group of people were ready to be baptised. Since being baptised the applicant attends church every Sunday. [In] 2015 the applicant became an Aaron Priest. [In] 2016 he was ordained to be a more senior priest and can now impart spiritual healing and observe and witness baptisms. He claimed that he engages in religious study every week and visits LDS members to talk about the teachings in the Bible.
The applicant claims a person named Dr. Nguyen Bui Dinh Loc tried to print a Vietnamese version of the Book of Mormon in Vietnam and he was persecuted as a result. The applicant claimed that Mormons in Vietnam do not have an official church and have to pray in secret in their homes. He claims that missionaries can only evangelise in secret and this is a major issue because an important part of his belief and practice, particularly as priest, is to spread the word of God. He believes he will be targeted for doing this in Vietnam, and charged and arrested for gathering in a group because the government will suspect him of organizing an anti-government protest. He claims the government is suspicious of Catholic and evangelist churches and targets their members.
The applicant’s wife submitted a statutory declaration dated 8 November 2016 claiming that if returned to Vietnam she would also practice the Mormon faith and fears harm. She claims that she completed her lessons to join the church in 2013 and the timing of her baptism was the churches choice. She claims that outside of mass she participates in three hours of religious classes on Sundays [and undertakes other activities]. She recounts participating in the big Christmas celebrations at the church. She claims there is a Mormon church is Ho Chi Minh City, and the government officially says people can go there, but the government should not be trusted.
The Tribunal has before it the following evidence concerning the applicant’s and his wife’s faith:
·The applicant’s Baptism and Confirmation certificate stating that he was baptised on [in] 2014 and confirmed as a member of the Church of Jesus Christ of Latter-day Saints [in] 2014.[17]
·Aaronic Priesthood Ordination certificate stating that the applicant was ordained to the office of Priest in the Aaronic Priesthood in The Church of Jesus Christ of Latter-day Saints [in] 2016.[18]
·Baptism and Confirmation certificate stating that the applicant’s wife was baptized on [in] 2014 and confirmed [in] 2014 as a member of the Church of Jesus Christ of Latter-day Saints.[19]
·Letter from the church dated [in] 2016 inviting the applicant to a conference [in] 2016 at which he will advance and received the Melchizedek Priesthood.[20]
·Letter from the church dated [in] 2013 congratulating the applicant’s wife on her baptism into the church.[21]
·The applicant’s wife’s church membership record dated [in] 2015.[22]
·An article about Dr. Nguyen Bui Dinh Loc and his arrest in 2004 for printing the Book of Mormon in Vietnamese.[23]
Imputed Political Opinion: Spouse’s political activism
[17] [File number]
[18] AAT 1507243 f.91
[19] AAT 1507243 f.90
[20] AAT 1507243 f.85
[21] AAT 1507243 f.84
[22] AAT 1507243 f.71
[23] AAT 1507243 f.88
The applicant’s wife submitted a statutory declaration dated 8 November 2016 claiming that if returned to Vietnam she would like to be involved in the anti-government movement protesting against the lack of human rights. She wants to increase the Vietnamese people’s awareness of their human rights to practice their religion, vote to change the government, and to enjoy freedom of speech. She wants to raise awareness of the government’s abuse of these rights and the corruption of the regime. The applicant’s wife’s claims regarding political activity in Australia may be summarized as follows:
·The development of her political views were motivated by unfair treatment her family received from the authorities in Vietnam in a dispute over land and her contrasting experience of the rule of law and human rights in Australia.
·She attended a demonstration [in] 2012 in an annual commemoration of the fall of Saigon and South Vietnam called Black April. She also attended this event in 2013, 2014 and 2015.
·Bloc 8406 is a Vietnamese political dissident group that campaigns for human rights and religious freedom in Vietnam. A member of the group, Father Nguen Van Ly, was arrested and imprisoned for breaching Article 88 of the Communist Constitution which relates to activities deemed to be anti-government. She is involved with this group [in a number of roles].
·The Prisoners of Conscience Fund is a group that provides financial support to prisoners of conscience who are jailed by the Vietnamese government, and their families who are also punished and often not allowed to work. She [undertook activities] for the Prisoners of Conscience Fund during the 2014, 2015, and 2016 Vietnamese New Years in [Suburb 1], [Suburb 2] [and other locations]. According to the representative’s submission dated 27 February 2018 [details deleted].
·In opposition to the Vietnamese government, she organised a candlelight vigil [in] 2016 outside Parliament in [City 2] to protest against the contamination of rivers by a big factory in Central Vietnam.
·In [2015] she organized [an event] at her church in [Suburb 1] and [Suburb 2] Market for the release of Nguyen Viet Dung who is a dissident imprisoned in Vietnam. [Details deleted]. Dung Viet Nguyen was arrested for protesting the logging of ancient trees while wearing the South Vietnamese uniform and holding the flag. It is noted that at a protest in [City 2] she also carried the South Vietnamese flag. She and others from Bloc 8406 also met with [officials] [in] 2015 to discuss this issue and lobby for human rights in Vietnam. According to the representative’s submission dated 27 February 2018 she also organized [an event].
·She researches information to post on a [page] of the newspaper [title].
The applicant’s wife claimed to the Tribunal hearing her case that her social media posts included content about the Vietnamese government and Formosa company incident which caused substantial environmental damage as a result of a toxic spill.[24]
[24] AAT 1507058 para 51
In support of the applicant’s wife’s political activities, the following evidence was submitted:
·Photos of the applicant’s wife’s involvement in political activities, including a photo with [a government official].[25]
·Letter dated [in] 2016 on behalf of the Prisoners of Conscience Fund stating that the applicant’s wife [began a certain role] the previous year as [an official] of the organization, her relationship with the organization dates back 3 years, and she helped [in various activities].[26]
·A news article about the dissident Nguyen Viet Dung, accompanied by an article about the petition that the applicant’s wife helped organize for his release.[27]
[25] AAT 1507243 ff. 78; 76
[26] AAT 1507243 f.77
[27] AAT 1507243 ff.89; 83
In her statutory declaration dated 8 November 2016 the applicant’s wife claimed that she did not apply for protection until February 2014 because she was not aware she had the option until the second half of 2013. She also claims that at the time she lodged her protection visa application she was not aware of the implications of her political activities and therefore did not raise them as a reason for fearing harm in Vietnam.[28]
Submissions to the Tribunal
[28] AAT 1507243 f.64
The Tribunal received a submission dated 27 February 2018 from the applicant’s representative presenting country information which it is claimed demonstrates that religious practice is strictly regulated by the Vietnamese government and many individuals experience harm as a result of the applicant’s religious activities, which are seen as a threat to national unity and order.
The Tribunal received a submission dated 10 November 2016 from the applicant’s representative outlining country information concerning Christians and political activists which it is claimed demonstrates the risk of harm to the applicant and his wife in Vietnam.[29]
[29] AAT 1507243 f.62
The applicant and his son (Applicant 1806883) were invited to a joint hearing to be scheduled for 21 February 2019. While the applicant attended, the other applicant, a minor, did not. The Tribunal also received evidence from the applicant’s claimed spouse, Ms [A], who provided oral evidence. The applicant was also supported by his representative.
The applicant was also provided with additional time to provide a post hearing submission by 22 March 2019. On the same date the applicant provided two letters: one from [name] [of] Bloc 8406 in Australia, dated [in] June 2016; and the other from [Mr D], [of] Prisoners of Conscience Fund (POCF), dated [in] October 2016. There were also a number of photographs with the applicant and his claimed spouse at various [events].
Country information
DFAT Country Information Report Vietnam (21 June 2017)
Catholics
Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam. The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
DFAT has observed that Catholics are able to practise freely at registered churches and that bibles and other religious texts are readily available in cities and towns. DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.
Unregistered churches
Credible in-country contacts and human rights advocates reported that several parishes in remote areas with majority ethnic minority congregations faced difficulty registering churches. Local authorities often ignored, or were unaware of, national laws with respect to church registration. The US Department of State’s international religious freedom report for 2015 reported the case of 22 unregistered Catholic house churches scheduled for demolition in the Central Highlands province of Kon Tum in 2015. The demolition was halted following involvement by the church leadership, after which authorities and the church entered into dialogue regarding construction of new worship facilities.
In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated areas.
DFAT assess that Catholics in remote areas who practise at unregistered churches can be subject to periodic incidents of harassment and intimidation. DFAT is aware of more serious incidents of violence, such as local authorities beating citizens; however, this generally appears to be related to other activities such as protesting against land confiscation and anti-government activities rather than merely due to a person’s religion (see Political Activists for further information).
Political activists - Leaders and Organisers
Political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities; however, the treatment from authorities generally depends on the individual’s level of involvement. The US Department of State’s Country Report on Human Rights Practices for 2015 highlighted the arrest and detention of former prisoner of conscience and democracy activist Tran Anh Kim, formally charged in October 2015 under Article 79 of the Penal Code (seeking to overthrow the government). Police in Thai Binh Province reportedly detained Kim and his associate Le Thanh Tung on 21 September, ‘the day he had planned to inaugurate a new political organization, National Forces Raising the Democratic Flag.’ On 16 December 2016, Mr Kim and Mr Tung were sentenced at trial to 13 and 12 years in prison respectively. The court also ordered that both men serve four years of house arrest once released from prison.
A number of incidents involving the prosecution of prominent activists for political dissent were reported in 2016, including:
   On 23 March 2016, prominent blogger, Party member and former public security official Nguyen Huu Vinh (also known as Anh Ba Sam) was sentenced to five years in prison, accused of publishing anti-state information and charged under Article 258. Vinh was arrested in May 2014, together with a colleague, Nguyen Thi Minh Thuy, and has been in custody since his arrest. Ms Thuy was sentenced to three years in prison at the same trial in March 2016. Their appeal was rejected by a panel of judges at the People’s High Court in Hanoi on 22 September 2016.
   On 23 August a court in the central province of Khanh Hoa sentenced two men to up to three years in prison for spreading anti-state propaganda (Article 88) through one of the men’s Facebook accounts. The case has been reported by human rights organisations as a reminder of the CPV’s strong desire to control all political discourse. Nguyen Huu Quoc Duy and his cousin, Nguyen Huu Thien An, were given sentences of three and two years respectively, in a one-day closed trial. According to Radio Free Asia, the court statement said the men ‘deliberately distorted the Government's policies and that they explicitly called for the overthrow of the state’ in 12 articles posted on Facebook.
   On 20 September 2016 a leading land rights activist, Ms Can Thi Theu, was convicted under Article 245 (causing public disorder) and sentenced to 20 months in prison. Police forcibly removed more than 50 supporters from outside the courthouse during her trial. Ms Theu was arrested in June 2016 for protesting government-ordered land evictions from Duong Noi village near Hanoi. The Government reportedly plans to use the village for a commercial development. On 30 November 2016 an appeals court in Hanoi upheld her conviction of 20 months in prison.
   On 10 October 2016 prominent blogger, Ms Nguyen Ngoc Nhu Quynh (alias Mother Mushroom), was arrested and charged under Article 88 of the Penal Code (propaganda against the state), facing up to 20 years in prison. This was the first arrest under a national security provision for 2016. Mother Mushroom regularly wrote about political reform, land confiscation and police brutality, voiced her support for fellow dissidents and publicly campaigned for the release of many political prisoners. She had been subject to regular police surveillance and interrogation, and prevented from attending numerous events and meetings with foreign embassies and organisations.
DFAT assesses that individuals who are known to authorities as active organisers or leaders of political opposition are at high risk of being subject to intrusive surveillance, detention, arrest and prosecution. DFAT is aware of large numbers of credible reports of prominent political and human rights activists, as well as former political prisoners of conscience, being monitored, prevented from leaving their homes and/or attending meetings and events. They have also reportedly been subjected to widespread physical and psychological harassment, which in most cases has not been the subject of credible police investigations.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The applicants claim to be citizens of Vietnam and have provided copies of the bio data pages of their Vietnamese passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of Vietnam. The Tribunal finds that Vietnam is the country of reference for the purpose of assessing the first named applicant's claims for protection under the Refugees Convention and the receiving country for the purpose of assessing his claims under the complementary protection criterion.
Third country protection
There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Membership of the same family unit
Spousal Couple
The Tribunal accepts that the applicant’s claimed spouse has an interest in claiming to be a member of the same family unit as the applicant. If a protection visa were granted to the applicant on the basis he is owed Australia’s protection obligations, and the applicant’s spouse is found to be a member of the same family unit as the applicant by satisfying regulation 1.12 of the Regulations, the Tribunal is obliged to consider that whether she applicant satisfies s.36(2)(b) or s.36(2)(c) of the Act.
At the time of application of the protection visa, it was claimed that the applicant and Ms [A] had been in a spousal relationship until their separation [in] 2013. He further claimed they formally divorced in 2014 and later re-married [in] 2016. At the time of the hearing, he claimed the spousal relationship was ongoing and that they shared two biological children born in Australia: [Master B] born on [date] and [Master C] born on [date]. The applicant and Ms [A] presented at the scheduled hearing as a married couple and provided some oral evidence that they were committed to each other and their biological children.
Based on the available evidence, cumulatively considered, and with no evidence to the contrary, the Tribunal is satisfied the second applicant and Ms [A] are in a genuine spousal relationship and that Ms. [A] satisfies clause 1.12(4)(a) of the Regulations, as she has membership of the same family unit as the applicant for the purposes of this application for review.

However, as Ms [A] has already applied for a protection visa, applied for merits review where she was unsuccessful and had lodged judicial review where she was also unsuccessful, the applicant’s spouse is likely be subject to s.48 of the Act (and r.2.12) which limits unsuccessful protection applicants to only one protection visa application since last entering Australia.
Biological Children in Australia
At the time of making this decision, the elder of two dependent children (Applicant 1806883) has a refused protection visa under review. The Tribunal is unaware that the younger of the two dependent children has applied for a protection visa, although this may have occurred since the post hearing submission.
The Tribunal accepts that the applicant’s abovementioned biological children have an interest in claiming to be a member of the same family unit as the applicant. If protection visas were granted to the applicant on the basis they are owed Australia’s protection obligations, and the applicant is to found to be a member of the same family unit as his claimed dependents by satisfying regulation 1.12 of the Regulations, the Tribunal is obliged to consider that one or both of the applications of the minor applicants under review be remitted for reconsideration on the basis that the applicant satisfies s.36(2)(b) or s.36(2)(c) of the Act.
With no evidence to the contrary, the Tribunal accepts that Applicant 1806883, the abovementioned older child is the biological child of the applicant, is a minor and is currently in Australia.
With no evidence to the contrary, the Tribunal accepts that the abovementioned younger child is the biological child of the applicant, is a minor and is currently in Australia.
With regards to these two minors, the Tribunal is satisfied they are wholly dependent children on the applicant (and his spouse) and that they do satisfy regulation 1.12(4)(b) for the purposes of this review application. Therefore Applicant 1806883 and [Master C] may be eligible to satisfy s.36(2)(b) or s.36(2)(c) if the applicant pertaining to this review application is found to satisfy ss.36(2)(a) or (2)(aa).
Credibility
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.
The Tribunal also accepts that ‘if the applicant's account appears credible, he 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.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind 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 (1999) 93 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 Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Adverse credibility findings: claimed religious persecution
The Tribunal had considerable credibility concerns about a number of the dispositive claims advanced by the applicant regarding his claims to holding fears of religious persecution if he were to return to Vietnam.
The applicant did demonstrate some knowledge of the Catholic religion and its practices during the scheduled hearing and claimed he no longer belongs to any Catholic congregation or has Catholic convictions, which the Tribunal accepts. He claims his fears arise as he will be imputed with being Catholic by those in authority.
While the Tribunal accepts the applicant was brought up in a Catholic family while he was growing up in his home province of Ben Tre and that while he is not a Catholic, the applicant has significantly embellished the chances or risk arising from his background as a Catholic. to choose between any Catholic priest’s direction as claimed and the dicta of the Vietnamese state, as he does not claim to be a Catholic anymore. It does not accept he will be restricted in observing as a Catholic or his religious association in the past will become an issue with the authorities as he is no longer a Catholic. Furthermore there is no real chance or real risk he will be imputed as being Catholic by the authorities as claimed as his former religion is not stated on any identity documents. The Tribunal finds the applicant has significantly embellished his religious background as a Catholic. The claimed situation in Vietnam towards Catholics who are not undermining the legitimacy of communist regime is not supported by the available country information as outlined above. It does not accept services or the protection of the police are denied to Vietnamese Catholics as claimed by the applicant. It is accepted that Catholics in Vietnam, imputed or otherwise, in some circumstances are faced by official discrimination by additional bureaucracy or requests for bribes. The Tribunal however does not accept the applicant has a real chance of serious harm or a real risk of significant harm arising from any official and/or societal discrimination towards Catholics or citizens from a Catholic background, as the level of harm does not amount to persecution as required by s.91R(1)(b) or amounts to significant harm as outlined by s.36(2A), in the reasonably foreseeable future.
Accordingly Tribunal does not accept the applicant has a real chance of serious harm based on his religious background as a Catholic or for being imputed as a Catholic or any related Convention reason. Based on the same overall assessment, the Tribunal does not accept the applicant has a real risk of significant harm based on the same claims, as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
More egregiously, the applicant presented to the Tribunal a shallow amount of knowledge about the history and practices of the Church of the Latter Day Saints and finds that the applicant has presented an elaborate contrivance about his conversion to Mormonism in 2014.
That is not to state the applicant was unable to answer some rudimentary questions or has not presented third party testimonies in favour of his membership of the Church of Latter Day Saints. It is acknowledged that an earlier Member of the Tribunal found the applicant to be genuine member of this church, who undertook a long period of learning and initiation and was a genuine participant. However, the Tribunal is not bound by this earlier finding in this decision.
At the time of hearing the applicant no longer claimed to be a practicing member of the Church. He was unable to accurately answer questions about this religion’s holy books or history which the Tribunal would except to be commensurate with a person who was initiated and participated for a relatively long period of time and was provided with the Church’s status of Aaronic or Melchizedek priesthoods. The applicant was unable to elaborate on any aspects of the Mormon religion or scriptures which had made an impact on him spiritually or personally beyond the platitudinous. His answers about Jesus’ life were often so vague as to be lacking in any significant meaning.
The Tribunal accepts that the applicant was actually admitted into the Church of Latter Day Saints; that he undertook classes in Mormonist beliefs and history; that he is known to local elders in [City 2]; that he remarried his wife into this faith tradition. It is noted that the applicant did not submit any further information about his Mormon knowledge during the post hearing submission, despite the Tribunal outlining its significant credibility concerns during the schedule hearing, indicating to it that the applicant was aware he was fabricating his religious affiliation.
Furthermore, the Tribunal notes that the applicant did not involve himself in Mormonism until after his application for a protection visa had been lodged. His protection visa application mentions fears of belonging to an evangelical church without identifying the denomination. He was also unable to provide a definition or explanation of the word ‘evangelical’ during the scheduled hearing. This further invited credibility concerns that the applicant was a most unconvincing convert to Mormonism specifically and evangelical Christianity more generally.
Due to this credibility concerns, cumulatively considered, it is not accepted by the Tribunal that the applicant is a genuine convert from his Catholic background to being a Mormon with any conviction or commitment to the Church of Latter Day Saints or its members at all. Nor is he a convert to any evangelical denomination of Christianity at all. It does not accept the applicant’s children are being brought up as Mormons, as claimed, or that the applicant will ever undertake preaching as a Mormon or as an evangelical Christian if he were to be returned to Vietnam. The Tribunal finds that the applicant has undertaken an elaborate fabrication that he is an evangelical Christian and a Mormon convert solely for migration purposes because at the time of application the Church of Latter Day Saints was not a registered religion in Vietnam and not because he has any subjective fears of persecution arising genuinely held beliefs in Mormonism.
With regard to the applicant having any real chance of serious harm or real risk of significant harm arising from being imputed as a Mormon, the Tribunal notes , as discussed on the hearing, that the Church of Latter Day Saints has been a registered religion in Vietnam since 2016. Based on this country information and the applicant’s fabricated affiliation with Mormonism, the Tribunal finds there is no real chance of serious harm based on the nexus reason that the applicant’s imputed religion will as a Mormon or that he had been formally affiliated and accepted into the Church of Latter Day Saints or for any other related Convention reason.
Based on these findings, the Tribunal does not accept the applicant will have a real chance of serious harm for any Convention reason, imputed or otherwise, based on his fabricated but otherwise formal conversion to Mormonism or to any other evangelical branch of Christianity or any affiliation with the Church of Latter Day Saints, formal or otherwise, if he were to return to his country of nationality. Based on the same credibility findings and the country information relevant to the applicant being imputed with Mormonism or evangelical Christianity there are no substantial reasons for the Tribunal to believe he will suffer a real risk of significant harm based on his contrived status as a Mormon and as a evangelical Christian, as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
In having regarded these religious claims for protection, both individually and cumulatively, the Tribunal finds the applicant does not hold a well-founded fear of persecution based on his accepted background as Catholic, his contrived status as a Mormon or evangelical Christian or any other claimed or related Convention reason, imputed or otherwise, based on the applicant’s accepted and fabricated religious claims.
Neither does the Tribunal based on the reasons, outlined above, the Tribunal does not believe there are any substantive reasons for it to believer that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, will suffer a real risk of significant harm arising from these embellished and contrived claims with regards to his religious background and beliefs, accepted or otherwise.
Imputed political claims
When the Tribunal is typically presented with such fabrications and embellishment, it is open to it to make further adverse credibility findings. However, with regards to the applicant’s imputed political claims, the Tribunal has assessed the documentary, written and oral evidence of the applicant’s and his wife’s (as a witness) in a much more favourable light.
The applicant claims that his wife’s membership of Bloc 8406 and her public and online activities in support of it will impute that both his wife and himself are supporters and/or members of Viet Tan (Reform Party, Việt Tân or Việt-nam Canh-tân Cách-mạng Đảng). This they argue will place both of them in at a real chance of danger were they to return to Vietnam as one or both of them will be arrested and interrogated which will lead to significant physical ill-treatment, torture, long term custody or imprisonment in poor and degrading conditions and being killed, high levels of discrimination leading to a denial of basic services, where the denial threatens the capacity of the applicant and his family to subsist.
Regarding the activities of applicant’s wife, photographic evidence and social media posts submitted to the Tribunal demonstrate that she has been active over several years in Bloc 8406 and Prisoners of Conscience Fund (POCF), including most recently [in] [City 2]. It is noted that many of the comments by the applicant’s wife are derogatory of the current leadership in Vietnam (“[Comment deleted]”.[sic]”. In the post hearing submission, a letter from [name] [of] Bloc 8406 indicates that the applicant [undertakes a certain role for] the organisation. It further states she has attended vigils and protests critical of the Vietnamese communist authorities and in favour of greater human rights and democracy. [Details deleted].

100. The Tribunal notes that neither the applicant nor his wife has been politically involved prior to her departure from Vietnam to Australia. The Tribunal, in the context of the applicant’s contrived conversion to Mormonism, whether the applicant’s wife sur place activities had also been contrived or fabricated for migration purposes. In this regard, the Tribunal has placed considerable weight on her activities over a longer period of time since 2012 and her convincing and reasonably detailed testimony at the Tribunal about her activities and motivations. It has been argued that when she arrived in Australia, her eyes were opened to freedom and democracy and became involved in the plight of political prisoners in Vietnam. The applicant’s spouse spoke at the Tribunal that she hoped that dictatorship in Vietnam would come under the same kind of internal opposition and diplomatic pressure as the Maduro-led government in Venezuela in early 2019. Although it has some misgivings arising from her husband’s lack of credibility, the Tribunal has provided the applicant and his wife the benefit of the doubt that these sur place activities by the applicant’s wife have not been carried out solely for migration purposes: s.91R(3).
101. It is accepted that POCF and Bloc 8406 are non-governmental organisations which are highly critical towards the communist leadership of Vietnam and are both visible in the local community within Australia. Prisoners of Conscience Fund, a group that supports families of prisoners who stood for human rights in Vietnam. In particular, it is claimed money was raised for Dung Viet Nguyen, who is a member of the unsanctioned Republican Party, the unsanctioned Brotherhood of Democracy and a participant in environmental and political protests. It is reported that he was first arrested in 2015 and detained for a year for anti-state propaganda, and then re-arrested in 2017 and will not be released under 2024.[30] Bloc 8406, formed in 2006, is a coalition of political groups that advocates for multiparty democratic reforms in Vietnam. The Tribunal accepts that members of Bloc 8406 have been imprisoned such as Nguyen Van Ly (released in 2011 and then forced to return).[31] Another example includes Tran Quoc Haien, a labour activist, who was found guilty to spreading propaganda against the state in 2007 and released in 2012. Former communist party official Vi Duc Hoi Vi joined the Bloc after leaving the party in 2007. [32] He was imprisoned in 2011 for "spreading anti-government propaganda" after posting copies of pro-democracy articles online. [33]
[30] Vietnamese Political Prisoner Database: Vietnam: Father Nguyen Van Ly Should Remain Free, Human Rights Watch, 26 July 2011, Human Rights Watch (2009). Not yet a workers' paradise: Vietnam's suppression of the independent workers' movement. Human Rights Watch. p. 24.
[33] Vietnamese dissident sentenced to 8 years in jail, by Associated Press, FoxNews, 26 January 2011, It was argued in the hearing that the money raised for these organisations often goes to imprisoned members of the Viet Tan and other unsanctioned political parties and their families. This, in turn, leads participants in these organisations to be imputed with anti-state activities and information aimed at replacing the communist party. The applicant and his wife also used the example of an Australian citizen, Duy Quang Nguyen, the President of Bloc 8406 who went to Vietnam to protest in 2009 and subsequently had her Vietnamese visa cancelled.
103. While the applicant and his wife did not know anyone who had engaged in political activities in Australia and experienced problems upon return to Vietnam, the Tribunal is satisfied that members of these non-government organisations have been subject to Vietnamese laws and penalties when it feels anti-state information and activities have been undertaken, that the Vietnamese states takes them very seriously and that such people are imputed with membership of or support for unsanctioned parties, especially the Viet Tan Party. The Viet Tan Party is an opposition party run in exile which is considered by the Vietnamese government as a terrorist group.[34] Country information shows the Vietnamese government takes a strict stance against the organisation:
[34] 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.[35]

[35] Radio Free Asia, Vietnam: Rights lawyer disbarred, 16 August 2011, available at: [accessed 12 June 2018]
·A Vietnamese-American was detained for nine months awaiting trial solely for being a member of Viet Tan.[36]
[36] Radio Free Asia, Vietnam: Activist returns home dejected, 31 January 2013, available at: [accessed 12 June 2018]
·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.[37]
[37] UN News Service, UN human rights office concerned over convictions of 14 activists in Vietnam, 11 January 2013, available at: [accessed 12 June 2018]

104. The Tribunal now turns its mind to whether the activities of the applicant’s wife, Ms [A], in Australia would lead to the applicant facing a chance that is more than a remote, fanciful or far-fetched chance of serious harm for one of the Refugee Convention reasons. In this situation the applicant has provided considerable photographic evidence of his wife’s activities at protests, festivals, vigils and other events [of] an organisation that that the Vietnamese government considers to be supportive of an unsanctioned political organisation and even supportive of a designated terrorist entity. She has also provided evidence that she is or has been an office bearer in this regard.
105. Country information referenced above shows that members of this Bloc 8406 have been treated harshly and that members of Viet Tan, both local residents and foreign nationals, are treated harshly. The Tribunal has also located country information from Radio Free Asia whereby a democracy activist, Nguyen Thi Phi, aged 56, was taken into custody in October 2015 for having ties to ‘reactionary organisations’, including Viet Tan, when she tried to re-enter Vietnam without a passport. She was shortly released after confiscating her computer. Even though Viet Tan denied Phi had any connection to the Party or knowledge of her activities, the authorities imputed her with membership of this unsanctioned party as she had allegedly joined ‘illegal Vietnamese migrants’ participating in activities deemed ‘reactionary’ and ‘against the state’.[38]
[38] ‘Vietnam Detains Democracy Activitis for Reactionary Ties, Radio Fr3ee Asia, 22 October 2015, Furthermore, 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.[39]
[39] 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)

107. No evidence is available to suggest that this situation has changed.
108. The Tribunal finds the government monitors the protests in Australia, including those which the applicant’s spouse participated. It also finds that the Vietnamese government would have identified the applicant’s spouse as an active member of the POCF and will impute her with being a member of Viet Tan and anti-state activities. The Tribunal further finds that were the applicant with his family to return to Vietnam under their own identities the authorities would identify his wife and connect her to the ‘terrorist’ or ‘anti-regime’ activities that his wife has conspicuously undertaken in Australia. Considering the earlier mentioned country information on government action against members of Viet Tan, imputed and otherwise, the Tribunal find that the applicant faces a real chance - that is a chance greater than a remote or fanciful or far-fetched chance - of serious harm were he (with his family) to return to Vietnam.
109. The persecutor in this case being the state of Vietnam which controls the entire territory of Vietnam does not allow the applicant an option to relocate nor seek state protection.
110. The Tribunal does not accept these draconian laws and practices against political plurality and in favour of the monopoly of its authoritarian power within Vietnam by the ruling communist party by banning political parties other than itself and its broad approach to suppress non-government organisations and individuals it perceives in support of the Viet Tan and other political parties amounts to being the law of general application.
111. The applicant has presented oral and photographic evidence that he supports his spouse’s political activities. He has not presented specific evidence that he has strong political conviction himself. However, if the applicant were to return to Vietnam it would be with his family and his wife may be motivated to continue her political activities. It would be unreasonable to expect the applicant to discontinue supporting his wife’s political activities to avoid persecution from the Vietnamese state.
112. Accordingly, the Tribunal is satisfied the applicant has a well-founded fear of persecution for at least one of the Convention reasons, namely, the applicant’s imputed political opinion, if he were to return to Vietnam in the reasonably foreseeable future.
113. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Additional Findings
114. In paragraphs 69-77, the Tribunal has made a number of findings that it is satisfied that the applicant is a member of the same family unit of other individuals mentioned. Based on these findings and that the applicant satisfies s.36(2)(a), these members of the same family unit as the applicant will be or may be entitled to protection visas provided in the criterion in s.36(2)(b)(ii) subject to the remaining criteria, including health and character requirements, for the visa are met.
DECISION
115. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Brendan Darcy
Member

ATTACHMENT
Wife’s statutory declaration
Commonwealth of Australia
STATUTORY DECLARATION
Statutory Declarations Act 1959
I, [name] of [street], [Suburb 1], [State 1] [postcode], [occupation], make the following declaration under the Statutory Declarations Act 1959:
1.I wish to provide this statement to in support of my application to the Administrative Appeal Tribunal. I will respond to the findings of the Department of Immigration and Border Protection delegate in the decision dated 1 May 2015. I will also explain further why I fear returning to Vietnam.

My Conversion to the Church of Latter Day Saints
2.In the decision the delegate did not accept that I had genuinely converted to the Church of Latter Day Saints. She stated that she believed the answers I gave her about how l joined the Church were too vague and I didn't show enough knowledge of the important aspects of the religion.

3.I would like to provide more information about how l first was introduced to the religion and how my faith developed, because I was very nervous at the interview and do not believe I explained this very well.

4.In around the middle of 2009 I was in the [Suburb 2] library to study with my husband. At about [time] I was approached by a man named [Mr E] who asked me if we needed any help. He was [a Country 2] National from [who] could speak Vietnamese. He had a badge with his name and his title with the Church of Latter Day Saints. He was a missionary with the Church. He showed me a book which was written in Vietnamese and was called the Mac Mon, which in English translates to Mormon. He passed it to me and asked me to read some particular passages. I read the passages, and he asked me if I believed those lines. I said that I believed in those words, and he said that if this is the case he would give me this book and I could read it at home. I remember the passage was about the Father who created everything and was full of love and compassion.

5.He then asked if he could accompany me home, but I said that this was not necessary, but we could meet at the library again. I did not want him to come with us because I was not convinced about his religion just from the one passage I had read. I wanted to read the book first, and then if I was interested I would meet him again.

6.At this time, I was not a Christian. My husband was a practicing Catholic but I followed the tradition of worshipping my family's ancestors, which was my duty in my culture. I had gone to church with [my husband] and my mother in law after we were married, but I hadn't been baptized. Every year we went to Tacxay Church in the city of Camau for the anniversary of the death of Tacxay as he was a famous Priest.

7.I had the intention of being baptized because it was important that I have the same religion as my husband as this would make it easier to raise our children. I did also believe in Catholicism and I considered myself Catholic even though I hadn't yet been baptized.

8.I had been going to church regularly in Australia with my husband, every Sunday. I was hoping to be baptized in Australia but I had been too busy. My neighbour was a Vietnamese Catholic and had told me many times to be baptized, and she would be my godmother.

9.Both my husband and I read the Book. Of Mac Mon. At first I wasn't very familiar with what the book was talking about. I asked my husband about the stories in the book, such as the story of Adam and Eve and how they ate the forbidden fruit. He explained these stories to me because he knew them well already, and this was helpful. After reading the book and becoming more interested in it, we decided we would like to meet and talk with [Mr E], but we decided it would be best to wait and see when we meet him randomly at the library, rather than try to arrange a time with him.
10.We didn't see [Mr E] again because we later found out that he had returned to [Country 2] after his 2 year period in Australia was finished.
11.Later that year in 2010 I was again at the [Suburb 2] library with my husband studying again when 2 Mormons came to us. We knew they were from the same church as [Mr E] because they also had the badge with their name and details. Just like the first time with [Mr E], they presented the Mac Mon book to us and asked us to read a section aloud. This section was different to the first. I don't remember what the passage was. I told them that we already had the book at home, so they asked us to go home and read more from the book, and if I didn't understand anything they would be happy to explain it to me. They also suggested we come to their church at [a location] in the city. I said we would and I hoped to do so.

12.Unfortunately, because I was so busy with my studies and work I was not able to find the time to go to the church. At this time, I was working at a [Workplace 1] on the days when I didn't need to go to school. I would call [Workplace 1] when I didn't have any school to see if they had work for me, and if so they would come and pick me up and take me to [Workplace 1].

13.When I had time, I continued to read the book of Mormon with my husband. We would read a couple of pages before going to bed. I was becoming more and more interested in the book. I learned about the moral rules in the religion, such as not drinking alcohol, not gambling, and not smoking, to make us become better persons by helping people and through charity, and to be kind and good to our parents. I was also very impressed that the members of the Church that we met at the library were very warm and very kind and they seemed like a family, and they always asked us how they could help and whether we needed anything. I found this to be very attractive.

14.In 2010 I was very busy because I started my main course of [occupation] in February 2010 and was very busy studying, and was also working very hard so that I could afford to pay my school fees and living costs. I was working part [time]. I would still study in [Suburb 2] library because we didn't have a computer and internet at home. I would sometimes see people from the Church but I was focused on my studies at this time, because I was quite stressed, and so we did not speak to them. My husband and I would continue to read the book together though, but not so much due to my studies. We were also going to the Catholic church on Sundays.

15.The next time we met someone from the Church of Latter Day Saints was in 2012 in [Suburb 1]. I was in the library studying and 2 of them came to me, who I had not met before. I told them I had been reading the Book of Mac Mon. They told me that if I didn't understand something from the book I should ask them to explain it to me. I asked them about what would happen when we die, and about the moment of judgment from the Father. They then explained this process to me while also showing me illustrations to help me understand. We also played some games together which were designed to help me understand.

16.They also showed me some booklets that were different to the Book of Mac Mon. These were little booklets on themes like transparency, baptism, and saviours. Because they could see that I was very interested and could be a potential follower, they suggested I make an appointment with them so that they could go through the questions I had properly. There was a program of 8 lessons that they told me about. This was a set 8 lesson program which would go through the different aspects of the religion. They said I could arrange a time with them to do the lessons.

17.It was explained to me that between each of the 8 lessons I would have to go to the church for 2 services. Then, once I had completed the 8 lessons and gone to the church services as required, I would be interviewed by a member of the church, and if I got through this they would then allow me to be baptized. I agreed and committed to the program, and told them that my husband might want to be involved as well because he was interested like me. I knew that he might want to because we had been reading the book of Mac Mon together for a long time, though I did not commit him before speaking to him at home about it. He said he did want to attend the lessons and go to the services too.

18.My husband took the lessons separately because of our different working commitments. The lessons were mostly held in the library in [Suburb 1], though one of them was taken with another person at the [Church]. Each time the lesson was taught by 2 different people, because they rotated. Most of the lessons were in 2012, and into early 2013.
19.My husband and I would go to the church services together [every] Sunday. At that time there was a separate service for Vietnamese people, though this is no longer the case because there is not enough Vietnamese people to hold a separate service.

20.Each lesson was on a separate topic. For example, the first topic was on the Father from the Heaven. Another lesson was on the saviour, and another on the gospel, one topic on transparency, and one lesson about how all disciples would have to pay ten percent of their income to the church. Each lesson would usually go for about 45 minutes or so.

21.I felt very happy in the community of the church. I felt that it was like a warm big family, and I felt very welcome. This was very important for me because in Australia I didn't have my family and community and I was missing this warmth and feeling of support. At the church services, people would be able to share something they had learned from the week. I felt like I would learn from the others when they shared these stories.

22.We finished the lessons in early 2013, and we then had to wait for the church to invite me for an interview with a man named [Mr F], who was a missionary. The purpose of this interview was to show that we would be able to be baptized. We had to wait for [Mr F] to be available for the interview which took sometime. At the interview, I was asked questions about my faith in God, whether I would keep all my promises to God, my understanding of the commandments and the rules of the religion. I was interviewed separately from my husband because I finished the course before he did.
23.After the interview, I had to sign a form which asked about the details of my family and where they were living and born. [Mr F] told me that I had to wait for my baptism, so I knew that I had been successful. I wasn't told how long I would have to wait.

24.After the interview my husband and I continued going to the Sunday services at the [church]. I was also doing my [course].

25.At Christmas, there was a big celebration on Christmas Eve. Everyone brought plates of food, and before the celebration we had Mass on Christmas Eve, followed by the celebration. We went back to church in the morning for another service. My husband and I had Christmas lunch together with a few close friends.

I was Baptized [in] 2014, which was on [an] afternoon. This was at [another] Church because there is no [facility] at [our usual] Church. There was another person being baptized on the same day, and there were lots of people who came. We were baptized in the church. The elder who baptized us was named [Mr G]. The service was in English. Afterwards there were photos taken. The next day we went back to [our] Church where we were confirmed. After the confirmation there was a celebration with refreshments.

My husband was baptized in [2014].
28.The delegate stated in her decision that because I was baptized soon after I lodged an application for a protection visa, this showed that it was done to strengthen my application. This is not true. I was baptized at this time because this was when the Church arranged for it to happen, this was completely their decision. As I have discussed above, I was very involved with the church long before this and it had nothing to do with my visa situation.

29.Since my baptism I have been going to the Church on Sundays. For a while I continued going to [my usual] service, but they stopped having Vietnamese services so when this happened I started going to the church in [Suburb 2].

30.My husband and I separated in January 2013, which is when he moved out. We did not have much contact after this though we did see each other at the church services and he would ask me to help him if he did not understand something to do with his visa because he could not read or understand English like me.

31.As well as going to church services, I participate in other ways. For instance, after Mass on Sunday mornings there is a one hour class in Vietnamese in which we are taught about theological topics which are set by the president of the church. This topic would be discussed during the class. Then after this Vietnamese class there is a class specifically for women which is in English. I go to these classes as well to improve my English. This all takes around 3 hours every Sunday morning. Also, sometimes the English stories are slightly different to the Vietnamese versions.

I am also involved in other ways. For instance, [several different activities]. We also have multicultural days, and I would help decorate for these events. There are lots of fun activities and celebrations like this.

33.I also meet with prospective new members of the church. This is not the 8 lessons because these are more in depth, but I talk about my faith journey and how l found God to help inspire them. I receive the details of different people to meet for the month.
34.My husband and I got back together in March 2016. He had not remarried and 1 felt that I still loved him and he moved back into my house.
35.If I went back to Vietnam I believe I would not be able to practice my religion without facing harm. I have read on the internet about a man named Nguyen Bui Dinh Loc who is a doctor who printed the Book of Mac Mon in Vietnamese and he was arrested. Later on, he was able to escape and go to Cambodia. Ifl went back to Vietnam I would try to practice my faith. There is a Church of Latter Day Saints in Ho Chi Minh City. The communist government officially says that people can go to this church, but they cannot be trusted, and I believe I would be stopped from practicing freely. There is no real religious freedom in Vietnam. But because it is my faith I will do everything to continue practicing.

My Political Activities in Australia
36.When I first came to Australia I was mainly focused on my studies and getting used to life here. However, the longer I have stayed in Australia the morel have learned about the democratic system, the freedom to vote and the respect for the rule of law and human rights.1 like to read newspapers and see what different opinions there are. In Vietnam there is no freedom for different opinions to be expressed in this way. More and more l compare this system in Australia with the way things happen in Vietnam. In particularly I have seen that the voice of the citizens is highly respected in Australia, which is not the case in Vietnam where any opinion against the government will be considered counter-revolutionary and a dissident idea.

37.My family lost our land in around the year [year] because it was taken by our neighbours. We had built our house on this land in [year] and had a vacant lot which we also owned on the same piece of land. Our neighbours encroached and built a house on this vacant lot, and broke down the fence to do this. We had evidence including photos of the neighbours breaking the fence.

38.My mother tried to appeal this action by the neighbours but each appeal went nowhere, despite the evidence we were able to get. She appealed to the local government, and the provincial government including the provincial courts. But each one rejected her application, because our neighbours bribed the officials. I have asked my mother to give me the evidence of this but she is very scared and does not want to because she is worried, and has had problems in the past when she tried to escape Vietnam to get away from the communist government.

39.This experience has motivated me because l am so frustrated about how my family was treated by the political system. In Australia, the respect of the rule of law and human rights means that this treatment would not happen.

40.From about 2011 and 2012 I started reading online about the dissidents in Vietnam, and especially the website Dan Lam Bao blogspot.com which roughly translates as 'The People's Media'. This is a well-known dissident website. I started to wonder why people in Australia like me are allowed to read this online paper, but people in Vietnam are not allowed.

41.I also started spending time reading information on Facebook where people express their opinions about the Vietnamese government. At this time, I did not put my opinion yet because I was trying to discern how accurate this information is. My husband is also very interested in these issues and we would discuss what we had read.

I found it fascinating how the information I had been taught at school was so different to the truth of how things are. I started comparing what was written in independent media with what I had been taught in Vietnam. One example is how the life of Ho Chi Minh is taught at school. He is totally revered and his life is described as if he was a religious figure and a hero, who gave us the 5 laws of Ho Chi Minh and who went overseas to save the country, including being faithful to the Party and wearing red scarves. In Australia, I have read that he left Vietnam not to save the country, but for his own interest, and that he was a very opportunistic person. It is clear that the Vietnamese government lies about his date of birth, and that he did not have a wife and children, which is untrue.
43.I became aware of a Vietnamese political dissident group which is active in Vietnam and Australia, and which was established on the 8^th April 2006 in Vietnam. It campaigns for human rights and religious freedom in Vietnam and the name is Block 8406. This group is made up of Catholics, Protestants, Buddhists, Caodai and Hoahao Buddhists which is why its main focus is on religious freedom.

44.I was previously aware of Father Nguen Van Ly who was arrested and imprisoned for breaching Article 88 of the Communist Constitution which relates to activities deemed to be antigovernment. This was a very famous case as he was physically gagged from saying anything at the court hearing, and there were media reports of this in Vietnam. He was a member of the Block 8406.

45.I had read about the Block 8406 in Australia through [Mr H] who is [involved in the] Block in Australia.

46.The first demonstration I went to was in [City 2] [in] [2012]. I wanted to attend it so I travelled to [City 1] with other members of the community. I heard about this [in the media]. I also spoke to an older Vietnamese man at [Suburb 1] market who I suspected was an-ex member of the South Vietnamese army. He told me to come to [a location] in [Suburb 3] where the bus would pick us up and take us to [City 2].

47.The demonstration in [City 2] was very large, with [buses] of people from [around the country] and [City 1]. It was held [at a specific location]. There was a stage for the speakers, and there were many speeches from different Vietnamese organisations, and the South Vietnamese flags were flown and held by the demonstrators.

48.Block 8406 had members at the demonstration and I met them. On this occasion, I spoke to [Mr H]. I spoke to him and told him I was interested in their group and in the things they were campaigning about and I said yes. He asked if I was interested in helping with their campaigns and whether I was committed to do this. I said yes because I had seen and read about injustices in Vietnam.
49.I have returned to [City 2] to attend this annual event in 2013, 2014 and 2015. At the 2015 event, there was also a campaign by the organisers of the event to have Dung Viet Nguyen released from prison. I have discussed his situation below. I was very angry about the treatment of Dung Viet Nguyen for doing nothing more than expressing his freedom of speech. This campaign motivated me to become even more involved and arrange a petition. I have discussed this below.

50.In April 2013 [Mr H] asked me to help organize the Block 8406 annual event which celebrated the creation of the organization which was on 8 April each year. This was their annual meeting as well. [Mr H] asked me to [undertake specific roles]. The day included a gala event and he gave me [another role].

51.During the Vietnamese New Years in 2014, 2015 and 20161 helped the Prisoners of Conscience Fund to collect funds in [Suburb 1], [Suburb 2], [and other locations]. I learnt about this group through [Mr H] who was also involved in this group and who introduced me to [a member] of this group named [Mr D]. This group aims to provide financial support for prisoners of conscience who are jailed by the government. While in jail these prisoners are not given enough food to survive, and their families have to provide them with food. However, their families are also punished and often are not allowed to work, so do not have the money to support themselves or provide food to their family members in prison. The conscience fund aims to provide money to these families. This group sometimes also provides financial support for other causes. For example, I recently helped raise money for the victims of the floods in Central Vietnam.

52.I have also been involved in the Vietnamese community in a number of other ways to protest against the Vietnamese Communist Party and to demand democracy and freedom for Vietnam. For example, I [participated in a] Vigil in [2016] [in] [City 2]. This vigil was held to protest against the contamination of rivers by a big factory in Central Vietnam owned by an overseas company. Lots have fish have died as a result of this. The Vietnamese government allowed this company to operate and have not done anything to stop it or allowed the media to talk about this contamination, and the government stated that the fish was safe to eat. Many innocent citizens have died as a result of eating this contaminated fish. The government did not even allow international organisations from the US come and test the water to check whether it was safe.

53.In [2015], I organized a petition to collect signatures at my church at [Suburb 1], at [Suburb 1] market, and [Suburb 2] market for the release of Nguyen Viet Dung who was a dissident imprisoned in Vietnam. I was indignant about why Dung had been sentenced as he had tried to save ancient trees from being cut, and was in a demonstration against this while wearing the South Vietnamese uniform and the old flag. At the church, the other members agreed with me about this and wanted to sign the petition. We collected 7,300 signatures in around one month.

54.[Details deleted].

55.Last year in 2015 there was an AGM of the Block 8406 at one of the member's house named Ms [I] which I attended with [other] people.

56.I am also involved in [a] newspaper called [title], or the [title] in English. This was established [some time ago]. My role is to [contribute to the page]. I spend around one hour every day on this.

57.If I had to return to Vietnam I would like to be involved in the anti-government movement to protest against the lack of human rights. I would also like to increase the awareness of the Vietnamese people of their human rights to practice their religion, to vote to change the government, and enjoy freedom of speech. I would also want to increase awareness of the abuse of these rights by the Vietnamese government, and of the corruption of the regime. I believe Vietnam should have multiple parties rather than one Communist Party in control.

Timing of Protection Visa Application
58.The delegate stated in her decision that I applied for a Protection visa only because my skilled visa application was unsuccessful and that I did not have genuine fears about returning to Vietnam.

59.As discussed above, I had been involved in the church for a longtime. After my skilled visa application was rejected I read in the newspaper about Nguyen Bui Dinh Loc who was arrested for printing the Book of Mormon, as discussed above. It was when I read this article that I became afraid of what could happen if I went back to Vietnam as a result of becoming a Mormon. Before this I did not think it would be a problem for me, and so did not think about the possibility of facing harm in Vietnam. I had thought that being a Mormon and becoming involved in the Church of Latter Day Saints was a normal thing to do.

60.I also had not considered that my involvement in political demonstrations in [City 2] or any other activities could place me at risk in Vietnam. It was not until I saw the reports of Dung Viet Nguyen being arrested for protesting and wearing the South Vietnamese uniform and holding the flag that I first became fearful that I could be at risk of harm for my political activities. I remembered that at the demonstration at the Embassy in [City 2] I had also carried the South Vietnamese flag. It seemed so normal to do this in Australia because the community here would always carry the flags and sing the old South Vietnamese anthem. I did not read about what happened to Dung Viet Nguyen until May 2015 so this was not a reason for applying for protection in February 2014. This was also why I did not mention my political activities in my 866 application or much at the interview. I did mention my political views about the Father being arrested at the end of the interview.

Before I became aware of what happened to Nguyen Bui Dinh Loc I had no plans to apply for protection in Australia and was planning on returning to Vietnam if my skilled visa application was unsuccessful. However, in around the middle of 2013 started to think that I could not do this because it would be too dangerous as a result of reading the article. I did not apply for the protection visa until February because it was only during the second half of 2013 that I became aware of the option of applying for protection. I was also completing my [course] at this time, so I was very busy.