1722994 (Refugee)

[2024] AATA 2260

1722994 (Refugee) [2024] AATA 2260 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722994

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Amanda Mendes Da Costa

DATE:26 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 March 2024 at 12.04pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – imputed political opinion – social media posts – particular social group – returning asylum seeker – corruption – monitoring of online activism – passport renewal – return visits to Vietnam – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2; r 1.12

CASES

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIIIhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 455
Nagalingam v MILGEA (1992) 38 FCR191
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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Vietnam, applied for the visas on 19 June 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) was not a person in respect of whom Australia has protection obligations and  therefore did not satisfy the criterion set out in s 36(a) or s 36(aa) of the Act.

3. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 14 December 2023 and 23 February 2024 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s brother ([Brother A]) and sister-in-law ([Sister-in-law A]). Given the second named applicant’s young age, the Tribunal did not consider it necessary or appropriate for him to give evidence.

4. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

5. At the commencement of the initial Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from him toward the end of the Tribunal hearing on any matter they considered relevant to the review.

6. The Tribunal hearings were conducted with the assistance of interpreters in the Vietnamese and English languages.

7. In making its decision, the Tribunal has considered the information in both the Departmental and Tribunal files.

8. For the reasons given below the Tribunal is not satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or s 36(2)(aa) of the Act.

   CRITERIA FOR A PROTECTION VISA

9. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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

15. The issue in this case is whether the applicant meets the criteria in either of s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity and country of reference

16. The applicant was born [date] in [Town 1], Vietnam. The applicant claims he is a citizen of Vietnam. A copy of the applicant’s Vietnamese passport is on the Department’s file. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the applicant is a citizen of Vietnam and that as such his protection claims will be assessed against the Socialist Republic of Vietnam (Vietnam) as the country of reference and his ‘receiving country.’

17. The second named applicant was born in Victoria, Australia on [date]. The applicant claims he is a citizen of Vietnam. A copy of the second named applicant’s Vietnamese passport is on the Department’s file together with a certified copy of his Victorian Birth certificate. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the second named applicant is a citizen of Vietnam and that as such his protection claims will be assessed against Vietnam as the country of reference and his ‘receiving country.’    

    Applicant’s migration history

18. The applicant initially arrived in Australia [in] June 2013 after being granted a [Student] visa which granted on 18 March 2013 and valid until 31 August 2016. The applicant departed Australia [in] January 2014 and returned to this country [in] February 2014. The applicant again departed Australia [in] January 2015 and returned to Australia [in] March 2015. The applicant has remained in Australia since that date.

    Applicant’s protection claims

19. The applicant’s written claims for protection are contained in his application for a protection visa dated 19 June 2017. In that application form the applicant claims he left Vietnam to study in Australia but that he cannot return to Vietnam because his family have been living in Australia for a long time. He states that he fears that there is a group of people in Vietnam who are after his family who would enter his home and hurt or threaten his children. He also claims that the authorities in Vietnam cannot protect him from this harm.

20. The Tribunal notes that on 27 July 2017 the Department wrote to the applicant requesting further information regarding his protection claims. However, the applicant did not respond to this request.

21. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by the refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims.  All of this is considered in these findings.

22. The mere fact that a person claims fear of persecution for a 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.  A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim.

23. The Tribunal does not have responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.(s.5AAA Migration Act 1958)  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 FCR191; Prasad v MIEA (1985) 6 FCR 15 at 169-70).

24. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.(Minister for Immigration and Ethnic Affairs and McIIIhatton v Guo WeiRong and Pam Run Juan (1996) 40 ALD 455 per Foster J @p.482). Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

25. If the applicant’s account appears credible, he or she 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, such a benefit should 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.

    Applicant’s evidence at the hearing

26. The applicant told the Tribunal that he shares custody of his son (the second named applicant) with his former wife, with the second named applicant spending slightly more time with him each week. The applicant and the second named applicant currently live in shared rented accommodation and spent a considerable amount of time with the applicant’s brother ([Brother A]), sister-in-law ([Sister-in-law A]) and their children, who live nearby. The second named applicant is currently enrolled in [Grade] at [School 1].

27. In terms of his family background, the applicant said that  he was born and raised in the small town of [Town 1 variant] where his parents still live. He has one sibling, a brother who lives in Melbourne. When the Tribunal noted than his protection application form, the applicant states that he has [other siblings], the applicant explain that his [other siblings] live in Ho Chi Minh City, Vietnam.

28. The applicant said that both of his parents are retired with his previously working as a manual labourer. Since arriving In Australia, the applicant has telephoned them once or twice a month. The applicant’s father has also visited Australia once and his mother twice since the applicant has resided in Australia. The applicant told the Tribunal that his brother has resided in Australia for the past 15 years.

29. The applicant told the Tribunal that he was educated in the town of [Town 2] until he had competed his secondary education and that after graduation had attended a College in Ho Chi Minh City named [College 1]  where he successfully completed [an occupation 1 qualification].

30. After working in [occupation 1] for approximately 12 months, the applicant went to [Country 1] where he worked in [industry 1] for five years. He then returned to Vietnam where he established his own business in [industry 2]. This business was located in his hometown of [Town 1 variant] which is near the sea.  The business involved [specified roles].

31. The applicant explained that he married his former wife in Vietnam in 2008. The applicant said his former wife arrived in Australia in 2015 and the couple separated in 2016. They have two children together, the second named applicant and a [Child A] who is aged [age] years. The applicant’s [Child A] has lived with [the applicant’s] parents since [being] a small child.

32. The applicant explained that the reason for his [Child A’s] care arrangement was when he and his wife came to Australia, they were not sure if they could care for their [Child A] while they were establishing their lives in Australia. The applicant said that his [Child A] was settled and happy in the care of [the] grandparents and although he wanted to arrange for [the child] to visit him in Australia, his visa status didn’t permit this occurring.

33. The Tribunal questioned the applicant about his reason for originally travelling to Australia. In response, the applicant explained that he originally arrived in Australia on a Student visa and was enrolled in [an occupation 1] course at [a named] University. He completed approximately 12 months of the course during 2014 but fell behind in studies and couldn’t catch up with the other students. He then decided to drop out of the course and did not return to his studies for the 2015 academic year. The applicant conceded that he did not contact the Department when he ceased his studies to advise that he was no longer a student. He explained that he didn’t finish the course because his English language skills were poor, and he couldn’t successfully complete the exams.  Consequently, he decided to defer his course and had not returned to his studies. When asked about the length of the [occupation 1] course, the applicant said that it was of 2.5 years duration and was due to be completed in 2017 or 2018. The applicant said that he undertook his studies at a college and was not sure of the exact name of the course. The applicant told the Tribunal that he didn’t know when he deferred but thought it was sometime in 2016.  The applicant conceded that he remained on a Student visa, after he had deferred his studies until his visa ceased on 31 August 2016.

34. The Tribunal questioned the applicant about his return travel to Vietnam in 2014 and 2015. The applicant agreed that he returned to Vietnam [in] January 2014 and returned to Australia [in] February 2014. He explained that the reason for his travel was to visit his [Child A] and parents and the celebrate the Lunar New Year with them. At this stage, the applicant was still in a relationship with his wife.

35. He applicant agreed that he again travelled again to Vietnam between [January] 2015 until [March] 2015 for the purpose of visiting his family during the Lunar New Year period. He explained that at this stage he was still in a marital relationship with his wife and that his wife was living with her parents at the home of his parents which is located near his parent’s home. Whilst the applicant was visiting Vietnam, the applicant’s wife also stayed with him and their [Child A] at the home of his parents.

36. The Tribunal discussed with the applicant his work experience in Australia. The applicant told the Tribunal that he had been employed in general maintenance work including [specified roles]. This is the work he is currently undertaking. He has also worked in a [different business].

37. The Tribunal noted that the applicant’s protection application was made several ago and asked the applicant what he thought would happen to him is he now returned to Vietnam. In response, the applicant that when he travelled to Vietnam in 2015, he saw a lot of things he didn’t like with the regime” because it doesn’t protect vulnerable members of the community.  As a result of what he observed, the applicant went onto a social media site to discuss his concerns with others. He was subsequently told by other people using the site that he would experience problems if he returned to Vietnam because of his comments. He was also advised by his friends and acquaintances in Vietnam that he would be investigated and arrested if he returned because of his views.

38. The applicant told the Tribunal that he had not been interested or involved in any political groups or activities in Vietnam before he left the country in 2013. In answer to a question from the Tribunal about what made him interested in political matters during his visit to Vietnam in 2015, the applicant explained that he didn’t understand human rights when he was living in Vietnam but had begun to understand them more in Australia.

39. The Tribunal also questioned the applicant about how he found people with similar political views on social media the applicant if he had no history of political activity. In response the applicant said that he didn’t find the groups he just looked at social media sites and made comments on posts made by other people.  The applicant explained that whilst he didn’t post material of his own, he continued to discuss the content posted by others until two years ago when his social media profile was shut down by an unknown person.  After that the applicant re-established his social media page but didn’t post as many comments.  He said that he hasn’t been active on that site for the past two years.  The applicant told the Tribunal that he hadn’t kept copies of any of his comments on social media because he wasn’t preparing for a protection application.

1. In answer to a question from the Tribunal, the applicant said that his political comments would no longer appear on social media sites because his site had been unexpectedly and mysteriously shut down by an unknown person two years ago. The applicant said his last post on social media was made in 2017. Since 2017 he has been careful with the comments he makes on social media and has not made any political comments.

2. When questioned about the type of issues he was interested in online, the applicant gave an example of one of his comments which was about an account of police robbing land from landowners in Vietnam without paying them any compensation. The applicant explained that the police in Vietnam arrest normal people while the poor are not protected because they cannot bribe police like the rick. In response to a question about where he obtained that information, the applicant said that even when he was in Vietnam, he was aware of these problems, and he commented on it when he visited social media sites in Australia. The applicant explained that he didn’t make these comments on social media when he was living and working in [Country 1] because social media was not popular in the community in which he lived, and he was also “staying with foreigners”.

3. The Tribunal questioned the applicant about whether he currently held a valid Vietnamese passport. In response, the applicant confirmed that he does hold a valid Vietnamese passport which was last renewed in 2019 by consular staff in Australia. He said he had no trouble in renewing his passport and used an agent to achieve this outcome. When the Tribunal suggested that if the authorities were aware of his political activities in posting comments on social media, this would have been raised by consular staff when he sought to renew his passport, the applicant said that this was the reason for using an agent.

4. The Tribunal also questioned the applicant about why he thought he would be investigated and arrested if he returned to Vietnam  In response, the applicant explained that a school friend who works for a provincial government in Vietnam had asked him whether he had made an application for a protection application in Australia. His friend advised him that if he had made such an application, the applicant would be in trouble when he returned to Vietnam. However, his friend did not say much about the information against the applicant and didn’t answer when the applicant asked him about the nature of the problem.

5. The applicant further explained that his parents had informed him that some strangers had visited their home, asking about when he was returning to Vietnam. These people were dressed in normal clothes and didn’t introduce themselves to the applicant’s parents.  The type of information sought by the stranger’s included information about why he made an application in Australia to be a refugee. The applicant said his parents gave him this information on one occasion when he telephoned them to wish them a Happy Lunar Year.

6. The applicant told the Tribunal that he had not been involved in political groups or activities in Australia but had heard of Vietnamese students in Australia being caught when they returned to their accommodation by undercover police. After they were caught, the students were verbally abused and beaten by the undercover police. The applicant said that he was not aware of the reason for this occurring.

7. When the Tribunal suggested to the applicant that he was not likely to be of much interest to the authorities in Vietnam because he had not posted any political comments on social media since 2017 and had no history of memberships of political groups in either Vietnam or Australia, the applicant said that he was very scared to return to Vietnam because his friend had asked him why he applied to become a refugee in Australia and had told him he would be in trouble f returned to Vietnam.

8. The applicant further explained that although he hadn’t told his friend or anyone else in Vietnam about the protection application, he had a feeling that he would be in trouble if her returned to Vietnam.

9. The Tribunal discussed with the applicant the protection claims made by him in the protection  visa application form. The applicant explained that when he stated that were people in Vietnam trying to hurt him, he was referring to his fear that if he returned, he would be investigated because of his political views. This was because there is a one-party  regime in Vietnam which does not allow for any political dissent. He emphasized that the regime does not allow Vietnamese people to think for themselves.

10. The Tribunal discussed the country information regarding the return of unsuccessful refugee applicants to Vietnam. The Tribunal observed that this information suggested that unless returnees had been involved in people smuggling or illegal activities, the authorities in Vietnam did not detain or punish them. In response, the applicant said that this was “just on paper” and media propaganda. He explained that the authorities do other harmful things to people in Vietnam and force them not to disclose such harsh treatment. The applicant further explained that he had experienced this behaviour by the authorities when in 2011to 2012 a Chinese company built a factory in his hometown, dumping poisonous waster into the sea and killing fish and other sea life. The applicant said that despite making promises to the local community to clear up the pollution and offer the local community alternative employment to fishing, they had nothing to address the situation , they had done nothing.

11. When asked whether he would like to tell the Tribunal anything else, the applicant said that requested the Tribunal and Australian Government to grant his protection application, which would allow his children to grow up in Australia and be educated in this country. He also said that he fears that there are some political groups who will harm his family if they return to Vietnam.

    Evidence of [Brother A] at the hearing

12. [Brother A] told the Tribunal that he had been living in Australia for 15 years and is an Australian citizen. He currently lived in Melbourne with his wife and [children]. He explained that the applicant came to Australia on his own and he had given him a great deal of assistance. He described celebrating the Lunar new Year, birthdays and other family events with his brother and nephew. [Brother A] told the Tribunal that the applicant is a good man who is a considerate and caring father. He explained that both he and the applicant feared what would happen if his brother returned to Vietnam.

13. [Brother A] further explained that when the applicant arrived in Australia and stayed him and his family, the applicant’s social media page was “hacked,” and the second named applicant had to move out because the applicant feared for their safety. [Brother A] said that the applicant had told him that he feared that he and the second named applicant would be arrested on their return to Vietnam because the authorities in that country are aware of the applicant’s contact with political groups in Vietnam.

14. [Brother A] told the Tribunal that he didn’t have any interest in Vietnamese political groups because he was young when he arrived in Australia with no real thoughts about politics.  He requested the Tribunal (in making its decision) to take into consideration the welfare of the second named applicant who has grown up in Australia and has a close and loving relationship with his own children.

15. [Brother A] said that his biggest concern was for his nephew who would find it very difficult to adjust to returning to Vietnam.

    Evidence of [Sister-in-law A] at the hearing

16. [Sister-in-law A] is the wife of [Brother A] and the sister-in-law of the applicant.  She described the applicant  as a good father and said her nephew (the second named applicant) has a close relationship with her children.

17. [Sister-in-law A] explained the Tribunal that the applicant had informed her that there was a real chance of him being arrested and imprisoned if returned to Vietnam.  This was because the law in Vietnam dictates that anyone who opposes the government in that country may be arrested and imprisoned.

    Country Information

18. The Tribunal has considered country information (in the DFAT Country Information Report) reading online activism and land disputes in Vietnam, which it discussed with the applicant during the second hearing. The Tribunal noted that authorities monitor online activism and although users with little profile are sometimes subject to fines, arrest, and prison sentences, this is inconsistent and depends on local authorities.

19. The information further suggests that low-level discussions between friends from time to time might be tolerated or go unnoticed but in other cases related to sensitive issues such as lections may attract greater attention.

20. People in large cities are more likely to come to attention of authorities (in relation to their online activities) than those in rural areas.

21. DFAT assesses that online activists face a moderate risk of official discrimination and that a repeated pattern of online activity generally (but not always) attract the attention of authorities.

22. In relation to land disputes and environmental compensation disputes, protests about land and its compulsory acquisition occur occasionally. All land in Vietnam is owned by the State which issues usage rights to individuals and organizations. The State retains the right to reacquire land and landowners allege low levels of compensation. This sometimes leads to protests.

23. The DFAT Report refers to an incident in 2020 at Dong Tam, where a land protest resulted in three police officers and a civilian being killed. Social media comments regarding the protest led to some of those protesting online being arrested and imprisoned for their comments.

24. When invited to comment on this information, the applicant said that it was not entirely correct and that the authorities monitor everyone who posts material or makes critical comments regarding the government and its activities. He explained that this was regardless of whether the person was in a city or rural area.

25. The applicant further explained that he was aware of cases (which had not been publicized) where land protesters were arrested and killed by authorities. They also threw a type of bomb (similar to a grenade) at the protesters. The applicant said that he obtained information about this protest online and referred to the incident occurring in Dong Tan.

26. The Tribunal suggested to the applicant that if it accepted the above country information, it may find that the authorities in Vietnam would not be interested in him or the second named applicant because the applicant’s social media presence has been limited since 2018. In response, the applicant told the Tribunal that his [social media] account had been forced to close in 2018 because of his online activities and since opening another account he has been careful not to post any material and only makes comments about material posted by others.

27. The applicant explained that he feared that if he returned  to Vietnam there would be  consequences for himself and his son. This would include the authorities arresting and investigating him and preventing his son from attending school.

28. The Tribunal notes that applicant provided it with a bundle of pages printed from social media sites containing posts regarding topical issues in Vietnam including episodes of land confiscation, corruption, and pollution by authorities. The applicant has made brief comments regarding some of these posts, indicating his support for the sentiments expressed. The applicant’s comments are restricted to dates in 2018 and there are no posts after that year.

    Findings

29. The Tribunal has considered the protection claims made by the applicant in the visa application form and his evidence at the hearing.

30. The applicant’s written protection claims concern his fear that a group of unidentified people will enter his home and hurt his children, without the authorities being able to protect them. The applicant did not rely on these claims during the hearing, instead relying on his claim that he was at risk of harm if her returned to Vietnam base on his previous online activities.

31. The Tribunal further notes that in his evidence during the hearing the applicant said that his [Child A] (who lives permanently with the applicant’s parents in Vietnam) was happy and settled with [the] grandparents and progressing will at school. He raised no concerns for his [Child A’s] safety.

32. The Tribunal accepts that the applicant has made several posts on social media sites regarding social issues in Vietnam. These include comments (posted in 2018) regarding the behaviour of police, environmental issues, and land confiscation by government officials. The Tribunal notes that the comments provided by him are brief and consist of indications that the applicant likes comments made by others. The applicant claimed during the hearing that he had made more detailed and critical comments about the actions of the Vietnamese government in his post prior to 2018, he has not provided any documentary evidence of any such comments. Although the applicant claimed that this was not possible due to his social media page “crashing” in 2017, applicant provided no other evidence which supports this claim or explains how anyone in Vietnam could have been responsible for this occurring.

33. The Tribunal does not accept that Vietnamese authorities have targeted the applicant’s social media posts in Australia and notes that he has not been involved in any political parties or activities in Vietnam or Australia and has not participated in any protest rallies regarding social issues in either country, which would make this more likely. In particular, the applicant considers that the fact that the applicant ceased making any detailed criticisms of the Vietnamese authorities approximately seven years ago, lead the Tribunal to doubt that if he was previously of interest to the Vietnamese authorities that he would have continued to be the subject of attention from them.

34. The Tribunal accepts that the country information contained in the DFAT report which indicates that although the Vietnamese authorities monitor inline activism and activists face a moderate risk of official discrimination and that a repeated pattern of online activity generally attracts the attention of authorities.

35. The Tribunal is not satisfied that the evidence before it demonstrates that the applicant has engaged in a repeated pattern of online activity and notes that he not engaged in online commentary regarding elections which the country information suggests attracts the particular interest and attention of the Vietnamese authorities. Even if the applicant had come to the attention of the authorities because of his online activity, the amount of time since he has posted any detailed comments (i.e.2017) suggests to the Tribunal that he would no longer be of interest to them.

36. The Tribunal further notes that since lodging his protection application the applicant has successfully applied for the renewal of his Vietnamese passport. This application was processed by [Vietnamese authorities] and the applicant conceded in his evidence during the hearing that he experienced no difficulties with his application. Although the applicant attributed this to his engaging an agent for this purpose, the Tribunal considers that if the Vietnamese authorities were monitoring the applicant’s online activity and had been responsible to closing his [social media] page, this would have been raised with him prior to the renewal of his passport. The fact that this did not occur suggests the applicant is not considered by authorities to be of major interest.

37. As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of any online posts or comments he has made regarding the activities of the police, environmental issues, or the confiscation of land in Vietnam by the authorities.

38. The Tribunal has considered the applicant’s claim that he is at risk of harm from detention and interrogation from the Vietnamese authorities if he returns to that country after being refused a protection visa. However, the Tribunal accepts the country information regarding the treatment of returnees and finds that given the applicant has not been involved in people smuggling or illegal activities in Vietnam he is not likely to be detained or punished if he returns there are his visa application is not granted.

39. The Tribunal has further considered the applicant’s claims that friend in Vietnam had contacted him, warning that actions in making a protection application and the visit by strangers to his parents to seek information about the reasons for him lodging a protection application. The Tribunal does consider these claims to be convincing given that the applicant has not been involved in political groups or activities (or making comments on elections) and there is no evidence he has or had a high profile in Vietnam as an online activist. The Tribunal further considers that it is unlikely that the authorities in Vietnam would have become aware that the applicant being a person without a high political or social profile had made a protection application in Australia. The applicant has provided no explanation as to how the Vietnamese authorities would have become aware of his protection application, given he had not notified them.

40. The Tribunal has considered the applicant’s claim that he is at risk of harm from detention and interrogation from the Vietnamese authorities if he returns to that country after being refused a protection visa. However, the Tribunal accepts the country information regarding the treatment of returnees and finds that given the applicant has not been involved in people smuggling or illegal activities in Vietnam he is not likely to be detained or punished if he returns there are his visa application is not granted.

41. As such, based on the available information, the Tribunal finds that the applicant does not face a real chance of serious harm upon his return to Vietnam as a returnee asylum seeker.

42. The applicant’s claim that his son (the second named applicant) will be at risk of harm if he returns to Vietnam is also based on the second named applicant returning after making an unsuccessful protection application. However, for the same reasons as apply to the applicant, the Tribunal is not satisfied that as a young child the second named applicant would be prevented from attending school in Vietnam if he returns after his protection application is refused.

43. The Tribunal therefore finds that the applicant does not have a real chance of serious harm now or in the foreseeable future pursuant to s 36(2)(a) of the Act based on his fear of returning to Vietnam with the second named applicant as claimed.

44. Therefore, having considered the applicant’s evidence, the available country information, and having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing there is a real chance the applicant will be seriously harmed in the event that he returns to Vietnam by reason of his political opinions and membership of a social group.  Nor is the Tribunal satisfied that there is a real chance that the second named applicant will be seriously harmed by reason of his relationship with the applicant and in returning to Vietnam with him. As such the Tribunal finds that there is no real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act in the receiving country.

45. As such, the Tribunal finds that the applicants are not refugees as defined in s 5H of the Act and the criteria in s 36(2)(a) of the Act is not satisfied for this reason. Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

    Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it 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 they will suffer significant harm of any kind.

2. The applicants claim that they satisfy the requirements under s 36(2)(aa) by reason that they face a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman, and degrading treatment, or punishment. In particular, the applicants claim that there is a real risk they will suffer significant harm for the reasons detailed in their application for a protection visa as expressed above.

3. In MIAC v SZQRB[1] 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. It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm in Vietnam by reason of the fact that he posted critical comments about the Vietnamese government online, that he known to the Vietnamese authorities as a critic of their activities, he will be detained and interrogated as a retuned asylum seeker and the second named applicant will be prevented from attending school.

   [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

4. The Tribunal has made earlier findings that the applicants do not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicants’ claims, the Tribunal does not accept that there re substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.

5. At no stage did the applicants advance any other reason in their written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

6. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk they will suffer significant harm as required by s 36(2)(aa).

   CONCLUSION

7. For the reasons given above, the Tribunal is not satisfied that the applicants are people in respect of whim Australia has protection obligations under the Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a).

8. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicants are people in respect of whom Australia has protection obligations under s 36(2)(aa).

9. The Tribunal accepts the second named applicant is the son of the first named applicant and that the second named applicant is therefore a member of the same family unit for the purposes of the sub-regulation of r.1.12(1)(a) as the first named applicant. AS such, the second named applicant will not satisfy s 36(2)(b) or s 36(2)(c) of the Act on the basis that the first named applicant, as a member of the same family unit, does not satisfy s 36(2)(a) or (aa) or who holds a protection visa.

   DECISION

10. The Tribunal affirms the decision not to grant the applicants protection visas.

    Amanda Mendes Da Costa
    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.

    …