1721311 (Refugee)

1721311 (Refugee) [2022] AATA 1134 (24 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721311
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Michael Hawkins AM
DATE:24 February 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 24 February 2022 at 4:28pm

CATCHWORDS
REFUGEE – Protection Visa – Vietnam – religion – Christians – political views – membership and involvement of the Viet Tan – applicant’s husband was a member of the Viet Tan – applicant’s husband could be identified as an active member of the Viet Tan – spouse of a member of the Viet Tan – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2, cl 866.211
CASES
MIAC v SZQRB [2013] FCACA 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 (delegate) on 16 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 20 February 2017. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s 5H (1) of the Act and is not a person in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The applicant appeared before the Tribunal on 15 February 2022 to give evidence and present arguments. At the request of the applicant and her representative, her hearing was heard at the same time as that of her husband’s application for review. Consequently, the Tribunal received oral evidence from the applicant’s husband. 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.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and if not whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background:
The applicant is a [age]-year-old national of Vietnam. She was born in [in] village [in] Vietnam.
The applicant first arrived in Australia on [date] May 2013 on a student visa when she was [age] years old. She returned to Vietnam briefly to visit her parents [in] February 2015, returning to Australia [in] March 2015. The applicant has remained onshore since [March] 2015.
The applicant’s student visa was cancelled by the Department on 23 June 2016 because the applicant breached mandatory condition 8502 of her student visa.
The applicant applied for a Class XA, Subclass 866 (Permanent Protection) visa application on 20 February 2017. This application was refused by the delegate in a decision made on 16 August 2017.
The applicant applied for a merit’s review on 11 September 2017 of the delegate’s decision to refuse her application for a permanent protection visa.
The Tribunal learnt that the applicant and her husband married on [date] October 2017. They now have two children.
Claims:
The applicant’s claims are summarised in her visa application, written claims, and the delegate’s decision.
The applicant claims to be a Vietnamese citizen of the Christian faith.
The applicant claims that her parents sent her to study in Australia to avoid close and hard supervision of the local communist authority in Vietnam.
The applicant claims that her grandparents left the communist regime in North Vietnam and settled in South Vietnam because they belonged to the Christian community and were considered anti-communists. Since then, the North Vietnamese communist regime has taken over the entire country of Vietnam.
The applicant claims that if she was forced to return to Vietnam, she would be ill treated by the local Vietnamese community because the community regards her and her family as part of reactionary elements because of which the communist forces from North Vietnam invaded South Vietnam.
The applicant claims that if she is forced to return to Vietnam then she would be interrogated by the local police on suspicions of whether she participated in any anti-communist activities during her time in Australia. The applicant claims that during her last visit to Vietnam in 2015 she was summoned by local police authorities to interrogate if she had participated in any anti-communist activities in Australia. This enquiry included the authorities asking her friends if the applicant was taking part in any anti-communist activities in Australia. The applicant claims that to avoid trouble to her immediate family in Vietnam she had to cut short her visit to Vietnam.
The applicant claims that the communist government of Vietnam does not allow for any human rights and is abusive towards people belonging to the Christian religion.
The applicant claims that she herself has not experienced any harm in Vietnam however she has seen her friends being ill-treated, arrested, and tortured by the authorities because of their participation in protests of human rights abuse and religion suppression by the government.
The applicant claims that there is no organisation or group that can help people in Vietnam who are abused and ill treated by the local authorities and the government.
The applicant claims that household registration book is used by the government to monitor and strictly control the movement of Vietnamese people. The applicant also claims that to relocate to a different part of Vietnam one requires a letter of recommendation from the local police authorities which the applicant will not be able to get due to the time spent she has spent in Australia which is now about 9 years in total since she first arrived in Australia in 2013.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)The applicant’s protection visa application form, which was lodged on 20 February 2017;
(b)The applicant’s identity documents provided to the Department, being copies of her passport, student visa and academic certificates.
(c)The protection visa decision record dated 16 August 2017 (delegate’s decision), a copy of which has been provided to the Tribunal by the applicant;
(d)The application for review form dated 11 September 2017;
(e)Department file [concerning] the applicant’s protection visa application, which includes all documents submitted by the applicant in support of her protection visa application;
(f)All documents submitted to the Tribunal in support of the applicant’s review application, including:
·Submissions from the applicant’s representative dated 9 February 2022; and
·Screenshots of posts made on [social media] (untranslated); and
·Undated statements from the applicant and her partner submitted on 9 February 2020.
·Post-hearing submissions from the applicant’s representative dated 22 February 2022 which contains a cover letter from the applicant’s representative and translated copies of posts made on [social media].
(g)country information on Vietnam, as set out below.
Country of reference:
The applicant claims to be a citizen of Vietnam. Based on evidence provided to the Department and the Tribunal by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied based on the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 15 February 2022 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
At the request of the applicant and her representative, the hearing was held at the same time as that of her husband’s application for review.
The applicant was represented in relation to the review and her representative attended the Tribunal hearing.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee she must have a well- founded fear of persecution in Vietnam. This means the Tribunal must be satisfied that there is a real chance that she would face serious harm if she returned to Vietnam. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk that she will suffer significant harm if removed from Australia to Vietnam.
The Tribunal discussed her claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision with the applicant, her husband and the representative.
The Tribunal confirmed that the applicant was no longer making a specific claim as to persecution by reason of her Christian religion. It noted that the applicant had told the delegate that that she herself has not experienced any harm in Vietnam.
The Tribunal confirmed that the applicant’s husband was similarly no longer advancing that claim or claims in relation to a 2014 data breach or a claim that he was a failed asylum seeker.
After much discussion and clarification, the Tribunal understood that the applicant was claiming to fear returning to Vietnam because she believed she could be severely harmed or even killed because of her political views which she has shared on social media. She went on to state that she is seeking protection because of the political views she holds because she is a Catholic and which she has shared on social media.
In relation to the applicant’s husband, he claims that he is a member of the Viet Tan, and has made social media posts of a political nature and similarly fears returning to Vietnam because of the political views that he holds because he is a Catholic and which he has shared on social media.
The applicant and her husband confirmed that their claims as so summarised were not in dispute. The Tribunal asked the applicant and her husband whether those claims were now accurate and complete. They stated they were and that they did not need to change them.
Post-hearing the Tribunal allowed for further time to make submissions. Those submissions were received by the Tribunal by the due date of 22 February 2022.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal discussed with the applicant, her husband and their Representative, a concern that it had in relation to certain conduct that the applicant and her husband had engaged in subsequent to their arrival in Australia. It expressed a concern that section 5J(6) had been enlivened. The Tribunal discussed its concerns about the applicant and her husband only having recently engaged with the Viet Tan in Australia, and posting opinions of a political nature since being in Australia, noting there had been no political involvement or engagement in any such activities in Vietnam before their departure. It discussed with the applicant the provisions of section 5J(6) which required the Minister to disregard any conduct engaged in by the applicant in Australia unless she can satisfy the Minister that she engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee.
The Tribunal discussed with the applicant and her husband a number of observations it had made. It noted that the applicant’s husband arrived in Australia in April 2013. It noted the applicant’s husband’s claim that he became involved with the Viet Tan in 2016, becoming an official member in October 2017. The Tribunal noted from the decision of the Delegate that when asked by the Delegate about the reason for his delay in joining Viet Tan, the applicant’s husband explained that he had been in detention and later when he was released into the community and met other members of the Vietnamese community, he learned about Viet Tan in Australia. He also stated that he needed time to settle and to adjust to life in Australia and that he did not have a phone or appropriate transport to remain in contact with the organisation. He was also focused on securing employment and would engage in internet research about the Viet Tan’s activities.

The Tribunal also noted that the applicant’s husband had a [social media] account in the name of [name deleted] which he used to post his anti-government opinions.
The applicant’s husband reiterated that after he was released into the community, he did meet people in the community who were part of the Viet Tan but that he wanted to undertake investigations of his own and after doing that, he then decided to become a part of the group.
The Tribunal noted that the applicant arrived in Australia in May 2013 as a student, that her student visa was cancelled in June 2016 and she applied for a protection visa in February 2017. It noted that from the evidence produced to the Tribunal in the form of [social media] posts made by her, that she became active on social media from around mid-2018.
The Tribunal invited the applicant to offer an explanation for their delay in engaging in political activity in Australia. She explained that when she was in Vietnam, she had only attended school as she was young. She understood that posting in Vietnam against the regime is restricted and is monitored. She went on to state that she was not aware of important issues when she was young. However, now that she is in Australia, she knows that she can post opinions and became aware of what was happening in Vietnam. She discussed her latter awareness about Priests who stood up to criticise people who opposed religious marches and of the Formosa poisoning issue where chemicals had been released into the ocean. The applicant then explained that she then learned that the Vietnamese authorities could monitor their posts in Australia and could arrest those who opposed the government.
When asked again to explain the delay in her political engagement, the applicant explained that when she first arrived, she was focused on being a student. She stated that she met her husband in 2015 and at some stage before getting married, she attended a Viet Tan party with her (to be) husband. At that party, lots of issues were discussed and she claimed that this opened her eyes to what was happening in Vietnam.
When asked when she started posting, she explained that she started reading the Viet Tan website and thought deeply about the issues and developed suspicions. She said she became active from 2017.
In relation to the applicant’s posts, the Tribunal noted that her posts were primarily about what happens to Catholics and in particular Priests and land grabs. The Tribunal also noted that her posts tended to be shared posts, that is, her sharing the posts of others.
In relation to the applicant’s husband, he offered that he became involved with the Viet Tan in October 2016. He stated that he had been released into the community in 2015 and then took time to work out what the objectives of the Viet Tan were.
The Tribunal discussed with the applicant’s husband the contents of his Entry Interview on [date] May 2015. It noted that the applicant’s husband had stated that he wanted to study and to improve his life and understood that he would be given accommodation. The Tribunal put to the applicant’s husband that given that explanation, the Tribunal could form the view that he only got involved with the Viet Tan to give him a credible protection claim.
In response, the applicant’s husband stated that at the time of that interview, he was not aware and just followed the people before him. He stated that he was not telling the truth about himself and had lied about his age in order to be released earlier.
The Representative referred the Tribunal to an earlier statement of the applicant’s husband wherein he said he was once involved in a protest [against] the government in a land grab of the church.
In response, the Tribunal noted that the applicant’s husband had also stated that he was not involved in any other groups in Vietnam. He also stated that he had no other reason to leave Vietnam. The Tribunal also noted that the applicant’s husband has not referenced that particular protest in any of his later statements or in his interview with the Department.
The Tribunal has considered that the applicants met in 2015 and became married in October of 2017.
The Tribunal has noted that the applicant’s husband’s claims of Viet Tan engagement commenced in October of 2016 with full membership being accorded in October 2017. It noted his initial claims in his first SHEV application included a claim that he had joined the Viet Tan [Chapter 1] in October 2016 and provided a letter dated [February] 2017 from that Chapter which confirmed his association with that organisation. The Tribunal also noted that in the initial SHEV application, the applicant’s husband had acknowledged providing incorrect information to the Department about his date of birth, family composition and education. He also claimed to have left Vietnam illegally, though this was not the case, having departed using his passport.
The Tribunal noted the date of the applicant’s application for a Protection Visa being February 2017 and date of cancellation of her student visa and the delay between the two. It noted from her claims in the Protection Visa application that there was no reference to any social media posting of a political nature by her or of her relationship with the applicant who was by that time allegedly involved with Viet Tan; her claims to imputed political opinion related to her claim that she was allegedly summoned to the Police station for interrogation regarding her activities in Australia when she had returned to Vietnam in February of 2015 to visit her family. The Tribunal noted that she had produced no evidence to the Delegate or the Tribunal of that summons. The Tribunal noted that no member of her family was offered as a witness and no witness statements from family members were offered, despite her claim that it was her family that urged her to return immediately to Australia.
In her undated statement which accompanied the Representative’s submission dated 9 February 2022, the applicant alludes to her having shared articles with anti-government sentiments but told the Vietnamese authorities in the interview that she had not. The Tribunal also notes that the applicant was duly released by the Vietnamese authorities.
The Tribunal also noted that the applicant’s claims for protection, and the applicant’s husband’s claims for protection, had been rejected by the Delegate.
The Tribunal suggested to the applicant and her husband that their engagement in the posting of political opinions on social media and his joining the Viet Tan only came about following engagement with the Vietnamese community and that there was collaboration about what might constitute adequate protection claims.
In response, the Representative drew the Tribunal’s attention to the principle of the benefit of the doubt (as she correctly restates in her post-hearing submission). The Representative offered to make a submission citing the legal authorities in relation to that principle. The Tribunal offered that it was aware of those authorities and that such a submission was not required. The Representative asked the Tribunal to consider all of the circumstances of the applicant and her husband, including their age and the fact that they grew up in Vietnam where they were unable to express their political opinions freely.
The Tribunal considered all of the circumstances of the applicant and her husband and in particular the dates of the applicant’s husband’s engagement with the Viet Tan, the dates of his application for protection, the incorrect statements made in his initial application as to his identity, the fact of his social postings being made under an alias and the omission of claims in relation to the Viet Tan and social media posts by the applicant in her claims and concluded that there was no benefit of any doubt accruing to the applicant or her husband.
However, the Tribunal was satisfied that engagement in discussion by the applicant and her husband with the broader Vietnamese community established an awareness of community information suggesting membership and involvement of the Viet Tan and social media posting of the same might strengthen a refugee claim.
The Tribunal has considered that the coincidence in the dates of her social media postings, and the postings of her husband, and the dates of her making her new claims following the rejection of her protection visa application cannot be ignored. The fact of his community involvement and encouragement to join the Viet Tan would suggest an element of strategy to his protection claims. The Tribunal noted that the applicant had not been involved in any form of protests in Vietnam. It noted that the applicant’s husband had not been involved in any protest in Australia until after making his initial protection claim when he allegedly attended the protest in [City 2] in 2019.
The applicant’s husband has shown a preparedness to lie to the Department about his age, family composition and education. His explanation as to why it took him so long to engage with Viet Tan in Australia (being in detention, yet he was released from detention in 2015, though not engaging until late 2016) is flawed.
Having given due weight to the observations made in the preceding paragraphs, the Tribunal is not satisfied that the applicant has engaged in social media postings and the applicant’s husband participated in Viet Tan and attained membership of Viet Tan otherwise than for the purposes of strengthening her and his claims to be a refugee.
The applicant has not satisfied the Tribunal that she undertook activities involving the Viet Tan in Australia, including sharing posts of the Viet Tan otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal must therefore ignore those activities so far as her claim to be a refugee is concerned.
As the Tribunal must ignore her political activities, her amended claim about her political views she holds because she is a Catholic has not been substantiated.
As the applicant has withdrawn her claims in relation to being a Catholic, the Tribunal has not considered those claims further.
Consequently, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of Vietnamese authorities for any reason if she is returned to Vietnam now or in the reasonably foreseeable future.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?
The Tribunal has considered the applicant’s claims under complementary protection.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm, as it is defined in s.36(2A) and s.5(1).
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Vietnam now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCACA 33, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.
The Tribunal notes that section 5J(6) applies only in relation to the consideration of the refugee status of an applicant.
The Tribunal is left with the fact that the evidence is that the applicant has engaged [social media] to repost anti-Communist views of the Viet Tan and the applicant’s husband is a member of the Viet Tan and the fact that the applicant’s husband has interacted with the Viet Tan official [website].
The Tribunal has referenced Country Information in relation to Viet Tan.
The Tribunal referenced a number of articles and media reports provided to it by the representative, which were largely consistent with Country Information from the 2019 DFAT Report, as follows:
Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include:
…..
In November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist.[3]
In a number of cases, authorities have released activists from prison and forcibly deported them from Vietnam. In May 2017, for example, authorities revoked the citizenship of a Viet Tan member and forcibly deported him to France.[4]
DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.[5]
[3] DFAT Report, Paragraph 3.53.
[4] DFAT Report, Paragraph 3.54.
[5] DFAT Report, Paragraph 3.56.
The Tribunal discussed with the applicant, her husband and the Representative that it accepted, at face value, that the applicant’s husband was a member of the Viet Tan. There were sufficient letters of support from party officials that the Tribunal was familiar with corroborating that claim.
The Tribunal also accepted, at face value, the evidence in support of social media posts having been made firstly by the applicant and secondly by the applicant’s husband, albeit using an alias.
The Tribunal discussed with the applicant and her husband that it was concerned to understand how the various posts of the applicant and her husband and how the applicant’s husband’s Viet Tan membership might have come to the attention of the authorities. The Tribunal noted the millions of posts made by Vietnamese everyday and the thousands of members of Viet Tan all around the world and queried how the Vietnamese authorities could ever hope to monitor them all and to be aware of who the actual members of the Viet Tan were. The applicant’s husband responded by stating that the internet in Vietnam is restricted. He said that in Australia, he has a right to post and the Australian government will protect his freedoms if his posts are made in Australia.
The Tribunal pointed out to the applicant’s husband that he had in any event posted using an alias. He had himself taken measures to protect his identity. The applicant’s husband replied that many bloggers use nicknames. He stated that he had posted his own image on the alias account. The Tribunal noted that but also noted that it was an image of a baby, hardly a true representation of his current image. The applicant’s husband replied that his friends know it as him.
The Tribunal discussed with the applicant’s husband the actual posts made by him. The first was on 18 June 2019. The Tribunal noted that in terms of reactions to that post, there had been one “like”, one “laugh reaction” and one comment. In relation to his post made on 2 July 2020, there had been just the one “like” reaction.
The Tribunal noted that there was a very low interaction with the applicant’s husband’s posts. The applicant’s husband responded that there were not many posts made during COVID.
The Tribunal noted that the applicant’s husband, in his statement, stated that he has not posted lately, rather he has been focusing on his family. He replied that the Viet Tan has been posting instead and regularly.
The Tribunal reiterated that it did accept that the applicant’s husband was a member of the Viet Tan, but enquired of the applicant and her husband as to how the authorities might have become aware of his membership. The applicant’s husband replied that he was not sure.
The applicant’s husband then replied that he has attended protests [and] stated that his image of his attendance at such protests has been posted on the Viet Tan website.
Asked to elaborate, the applicant’s husband replied that he has attended demonstrations. He said that before 2019 he had participated in many protests in [a location] which were inside the Vietnamese community. He stated that he also travelled to [City 2] to attend a protest in [Australia] against the detention of Chau Van Kham. He cannot remember the exact date but knew it was in 2019.
The applicant’s husband stated that he knew he had been photographed at the protest.
The Tribunal asked whether it was just his photographed image or had his name also been included.
He suspected that he had been named.

100. The Tribunal noted the photos of the applicant’s husband’s participation in Viet Tan activities as submitted by the representative in her post-hearing submission.
101. The Tribunal accepts the veracity of the photos tendered by the applicant’s husband of his attendance at Viet Tan events and the placement of those photos on his [social media] account and the Viet Tan official [social media] account. The Tribunal again accepts that he is an official member of Viet Tan, noting the letter from [a named person] as representing the Viet Tan (Vietnam Reform Party) [Chapter 1].
102. The Tribunal has had regard to the following country information on Vietnam relevant to the applicant’s and her husband’s political claims.
Political opinion (actual or imputed)
103. The Department of Foreign Affairs and Trade’s (DFAT) latest country information report on Vietnam[6] reports the following on people who hold an actual or imputed political opinion:
[6] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Vietnam’ (11 January 2022) at pp 18-20 at [3.49]-[3.57], [3.61]-[3.64].
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.

3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted
Online activists and social media users
3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.
3.62 Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
3.63 Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.
3.64 It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.

104. The Tribunal also considered additional country information sourced itself and submitted to it by the representative.
105. The government considers opposition pro-democracy groups such as Viet Tan to be terrorist organisations. As political opposition parties are illegal within Vietnam,[7] opposition parties are typically based overseas to avoid harassment, arrest and detention.[8] The Vietnam Reform Revolutionary Party (or Viet Tan) is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[9] In 2016, the government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism.[10] Other foreign-based opposition groups including the Brotherhood for Democracy, who campaign for human rights and democracy in Vietnam[11] and who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[12] In November 2019, Chau Van Kham, a Vietnamese/Australian dual citizen and a member of Viet Tan, was sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code)[13] and in March 2020 lost his appeal against his 12-year prison sentence for ‘financing terrorism.’[14] Chau Van Kham entered Vietnam on a false identity and was arrested in Ho Chi Minh City whilst meeting with a member of the Brotherhood for Democracy.[15]
[7] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9.
[8] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9; Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
[9] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
[10] Associated Press, 'Vietnam declares San Jose-based Viet Tan a terrorist group' (7 October 2016).
[11] Human Rights Watch, 'Vietnam: Drop Charges Against Rights Campaigner' (10 September 2018).
[12] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
[13] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.26.
[14] Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020).
[15] Ben Doherty, The Guardian, 'Jailed Australian democracy activist has 'disappeared' inside Vietnam's prison system', (7 June 2020); Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020).
106. Political prisoners are likely to be treated more harshly than ordinary inmates. A 2020 report by local NGO The 88 Project highlights the harsh conditions that the Vietnamese state has imposed upon political prisoners in recent years.[16] The report argues that ‘Vietnam has continued practices amounting to torture of political prisoners’ who have been detained or imprisoned.[17] According to the report, political prisoners are treated as a different class of person than ordinary inmates, receiving harsher treatment ‘which often amounts to torture and inhumane treatment’.[18] A US citizen recently released from incarceration in Vietnam after being charged with political offences also described being mistreated while in prison.[19]
[16] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.3.
[17] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.4.
[18] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.7.
[19] Radio Free Asia, 'Recently Released US Citizen Describes Mistreatment in Vietnamese Prison' (28 October 2020); Orange County Register, 'American released from Vietnam prison speaks out, describes ordeal' (28 October 2020).
107. The Viet Tan Party is an opposition party run in exile which is considered by the Vietnamese government as a terrorist group.[20] Country information shows the Vietnamese government takes a strict stance against the organisation:
[20] 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.[21]
[21] 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.[22]
[22] 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.[23]
[23] UN News Service, UN human rights office concerned over convictions of 14 activists in Vietnam, 11 January 2013, available at: [accessed 12 June 2018].

108. The Tribunal discussed her [social media] activity with the applicant. The Tribunal noted from her statement that she said she had not done much posting recently and if so it had been through her husband. It did note that she had been far more prolific in posting than her husband.
109. The Tribunal, as it had done previously, noted that her posts were predominantly shared posts relating to Priests, her church and land grabs. Again, they appeared to have very low interactions. In terms of interactions, the applicant tended to generate about four interactions but the Tribunal acknowledged that on two occasions she had received 24 and 32 interactions.
110. The Tribunal noted that the vast majority of the applicant’s [social media] activities and posts were in 2018. It acknowledged that she had shared a number of posts made by the Viet Tan.
111. The Tribunal had discussed with the applicant her return to Vietnam in 2015. It understood that she had returned to visit her family. It noted from her statement that she had been invited to an interview with the authorities. The Tribunal asked the applicant whether she had evidence of that summons. She replied she did not. The Tribunal noted that following the interview, she was then released.
112. The Tribunal asked the applicant whether she had received subsequent invitations or whether her parents had received subsequent invitations for her to attend any interview. She replied they had not.
113. Upon enquiry, the applicant also confirmed that her parents had not been approached or interrogated by the authorities themselves.
114. The Tribunal discussed Country Information with the applicant and her husband that suggested the Vietnamese authorities were not concerned with posts as between family and friends. It suggested that such posts go unnoticed and are even tolerated.
115. The applicant confirmed that she generally shared posts of others and generally shared them with her friends and her husband’s friends.
116. The Tribunal discussed Country Information with the applicant and her husband to the effect that [social media] was cooperating with the Vietnamese authorities and generally took down 90% of all posts that referenced anti-political sentiment. The applicant’s husband replied that he was not aware of that. He stated that the government would follow [social media] as it is very strict.
117. The Tribunal again noted the Representative’s post-hearing submission received on 22 February 2022.
118. During the hearing, the Tribunal had expressed its concerns as to whether the applicant’s husband’s political involvement had in fact come to the attention of the Vietnamese authorities or could come to their attention. The applicant’s husband had stated that he was certain that his photograph and image had been on the Viet Tan website and [social media] page. Those photographs evidenced his political involvement and actual engagement with Viet Tan at its meetings and protests.
119. In her post-hearing submission, the Representative provided evidence of posts made on the Viet Tan website which included pictures of the applicant’s husband. She also provided evidence from a video which had been posted onto the [social media] page of [a] [group].
120. The Representative also provided Country Information in relation to the Viet Tan and its membership and the fact that Viet Tan has been labelled a terrorist group by the Vietnamese government.
121. The Tribunal is satisfied that there is a real risk that the applicant’s husband could be identified as an active member of the Viet Tan and could potentially be further identified through his postings on [social media] as a member of Viet Tan, notwithstanding the reasons the Tribunal has ascribed to the objectives of the applicants in so engaging in them.
122. The applicant and her husband have reposted on their [social media] accounts opinions of an organisation that the Vietnamese government considers to be a terrorist group. Country information referenced above shows that members of this group, both local residents and foreign nationals, are treated harshly. Country information indicates that 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.[24]
[24] 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)

123. No evidence is available to suggest that this situation has changed, though the Tribunal notes the 2022 DFAT Report is silent as to any mention of the Viet Tan.
124. Given the extraordinarily low interaction with the applicant’s [social media] account, and similarly of the applicant’s husband (and him having used an alias), the Tribunal considers it unlikely that the Vietnamese government authorities would have monitored the [social media] account of the applicant. As discussed with the applicant, [social media] censors accounts of Vietnamese holders and entries in relation to Vietnam, so much of what the applicant has purported to post may have been taken down and would not have been monitored. Country information above supports the notion that low-level postings between friends would likely go unnoticed and might even be tolerated.
125. However, the Tribunal considers it likely that the Vietnamese government would have monitored the official [social media] account of the Viet Tan which the Tribunal has identified as a public page with over 1.2 million “likes” with multiple postings made on it every day and the applicant’s husband has established that his photos have appeared on that account describing him as a member and as attending Viet Tan [events].
126. The Tribunal is satisfied that the Vietnamese government could have identified the applicant’s husband as a member of Viet Tan. The Tribunal is satisfied that were the applicant’s husband to return to Vietnam under his own identity, the authorities could identify him and connect him to the ‘terrorist’ activities that he has undertaken in Australia. Considering the earlier mentioned country information on government action against members of Viet Tan, the Tribunal is satisfied that there is a real risk that the applicant’s husband will face significant harm were he to return to Vietnam.
127. The applicant maintains a public facing [social media] page.
128. The applicant is married. Her husband is the member of Viet Tan.
129. If the applicant was returned to Vietnam, she could be readily identified as the spouse of a member of the Viet Tan. A search of her [social media] page would reveal her many anti-Vietnam, anti-Communist, and sympathetic Viet Tan postings. She would likely be tarred by her association with her husband, a member of the Viet Tan. So whilst the Tribunal is quite comfortable with its finding that it is unlikely that her [social media] account would ordinarily be monitored, and has a very low interaction rate with it, the Tribunal does accept that it would become targeted by reason of her association with a member of the Viet Tan.
130. The Tribunal is satisfied that the persecutor in this case, being the State of Vietnam which controls the entire territory of Vietnam, does not allow the applicant the opportunity to relocate nor seek state protection.
131. The Tribunal is satisfied that the risk the applicant faces is specific to her and is not one that is faced by the population generally.

132. The Tribunal is satisfied that the applicant cannot modify her behaviour to avoid the harm as the source of the risk is in her past behaviour (although contrived) which the Tribunal has found will be known to the Vietnamese state.
133. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is satisfied that the applicant will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Vietnam now or in the reasonably foreseeable future.
134. Accordingly, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
135. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). The applicant’s fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
136. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that she will suffer significant harm.
Overall Conclusion:

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION

138. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Michael Hawkins AM
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1134

24 February 2022

Key Legal Topics

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Immigration

Statutory Interpretation

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