1730101 (Refugee)
[2022] AATA 4088
•19 September 2022
1730101 (Refugee) [2022] AATA 4088 (19 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Christopher Levan
CASE NUMBER: 1730101
COUNTRY OF REFERENCE: Vietnam
MEMBER:Peter Papadopoulos
DATE:19 September 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act 1958 (Cth)
Statement made on 19 September 2022 at 3:27pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – anti-communist – political views shared on social media – membership of and activities with the Viet Tan – high volume of photographic evidence – conduct engaged in for the purpose of strengthening claims to be a refugee – delay in applying for protection – many anti-Vietnam government, anti-communist, and sympathetic Viet Tan Facebook postings – credibility issues – complementary protection – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 499
Migration Regulations 1994 (Cth), Schedule 2, Schedule 3CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 November 2017 to refuse to grant the applicant, [named], a subclass 866 Protection (class XA) visa (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 protection visa on 18 October 2016. The delegate refused to grant the visa on the basis that she 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 1 and 5 September 2022 to give evidence and present arguments. Two witnesses, namely [Mr A] and [Mr B], provided witness statements to the Tribunal. I considered those witness statements and took oral evidence from one of those witnesses. 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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether [the applicant] is either a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether [the applicant] is a member of the same family unit as a person who is a refugee or meets complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment to this decision.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background and immigration history
[The applicant] is a [age] year old national of Vietnam. She was born in Long An Province in Vietnam.
[The applicant] applied for her first Vietnamese passport to enable her to travel to Australia and study. Her first passport was issued by the Vietnamese passport authorities in Ho Chi Minh City [in] 2009 and valid until [2019].
On 17 August 2009, [the applicant] applied for a [student visa]. Her student visa granted on 10 September 2009 and permitted her to enter and remain in Australia until 30 December 2011.
[The applicant] first entered Australia [in] September 2009 when she was [age] years old. She undertook some studies in Australia but did not attain an Australian educational qualification.
On 9 September 2011, a few months before the cessation date of her student visa, [the applicant] made an application for a subclass 457 Business (long stay) visa (457 visa). [Mr C] was included in her 457 visa application as a secondary visa applicant as it was claimed that he was her dependent spouse. That 457 visa application was refused by a delegate of the Minister for Immigration and Border Protection on 20 October 2011 (457 visa refusal decision).
On 8 November 2011, [the applicant] sought review of the 457 visa refusal decision by lodging a review application with the Migration Review Tribunal (MRT). [Mr C] was included in that review application.
During 2012, [the applicant] made two return trips to Vietnam to visit her father who was unwell. She was in Vietnam for approximately three weeks in July 2012 and four weeks in December 2012. [The applicant] returned to Australia [in] December 2012 and has not departed since.
On 11 September 2013, the MRT invited [the applicant] to provide information in relation to her 457 visa review application. On 29 October 2013, [the applicant] provided the Tribunal with certified copies of an Australian educational qualification certificate and academic transcript specifying that she had attained that qualification having successfully completed certain studies at TAFE NSW in Australia.
[In] 2014, the MRT held a hearing in relation to [the applicant]’s 457 visa where it was it was put to her that these two documents were bogus. After considering [the applicant]’s response, the MRT found that these documents were bogus. On [date] 2014, the MRT affirmed the decision to refuse the grant of a 457 visa to [the applicant] and her dependent spouse [Mr C].
On 5 March 2014, [the applicant] requested the Minister to exercise his discretion under section 351 of the Act and substitute a more favourable decision in her case (first Ministerial intervention request).
Shortly thereafter, on 7 March 2014, [the applicant] made a combined application for a UK Partner (Temporary) and BS (Partner) Residence visa (partner visa application). Her partner visa application was sponsored by [Mr D]. [The applicant] claimed that she had been in a de facto relationship with [Mr D] since 15 June 2012 and that her relationship with [Mr C] had ended on 10 January 2012.
On 11 March 2014, [the applicant] withdrew her first Ministerial intervention request.
On 8 June 2014, [Mr D] died. This fact would not have necessarily precluded the grant of a partner visa to [the applicant].
On 20 April 2015, a delegate of the Minister for Immigration and Border Protection refused the partner visa application on the basis that there were no compelling reasons in [the applicant]’s case that would warrant the non-application of certain criteria in Schedule 3 to the Regulations that effectively excluded her from visa grant. The delegate also found that [the applicant] was not in a de facto relationship with [Mr D] for the period of 12 months prior to the lodgment of her partner visa application. This finding was partially based upon the fact that [the applicant] had kept [Mr C] throughout the MRT review in relation to her 457 visa application listed as her dependent partner and this seriously undermined her claim of being in a relationship with [Mr D] since 15 June 2012.
On 23 April 2015, [the applicant] then sought review of that delegate’s decision to refuse the grant of a partner visa to her by lodging a review application with the MRT.
On 10 June 2016, the MRT held a hearing in [the applicant]’s partner visa matter where concerns were raised in relation to various aspects of her application and her credibility.
On 20 June 2016, the MRT invited [the applicant] to comment upon its concerns that she was not a credible witness because she had:
· been prepared to provide bogus documents to the MRT in order to support her 457 visa application
· provided inconsistent sworn evidence to two different tribunals about her living arrangements including her address and the nature of her relationship with [Mr C].
On 28 July 2016, after considering [the applicant]’s response to its concerns, the MRT affirmed the decision to refuse the grant of a partner visa to [the applicant]. The MRT found that:
[The applicant] knowingly provided the MRT with evidence that she now claims was not true.[1]
After noting its serious credibility concerns, the MRT explained its unwillingness to accept aspects of [the applicant]’s evidence at face value in the following terms:
In the tribunal’s view, [the applicant] has a history of being flexible with evidence and is prepared to tell a tribunal evidence which she knows to be false in order to achieve a desired migration outcome.[2]
[1] MRT decision - Case number 1505548 (28 July 2016), para. 30
[2] Ibid. para.32
On 30 August 2016, [the applicant] requested the Minister to exercise his discretion under section 351 of the Act and substitute a more favourable decision in her case (second Ministerial intervention request).
On 21 September 2016, [the applicant]’s second Ministerial intervention request was not successful.
On 18 October 2016, [the applicant] lodged a valid protection visa application.
On 22 November 2017, [the applicant]’s protection visa application was refused by a delegate of the Minister for Immigration and Border Protection.
On 30 November 2017, [the applicant] sought review of that decision by lodging a review application with this Tribunal.
On 20 October 2018, [the applicant] married her current husband [Mr A] who is an Australian citizen.
[The applicant] applied for her second Vietnamese passport before her first passport was due to expire on [date] 2019. Her second passport was issued to her by the Vietnamese passport authorities in [City 1, Australia] on [date] 2019 and is valid until [2029].
On [date], [the applicant] gave birth to her [son] who is an Australian citizen.
Claims
[The applicant]’s claims for protection have been articulated at various points in time since she lodged her protection visa application on 18 October 2016. In order to provide clarity and avoid repetition, her claims are summarised below as far as possible in chronological order.
[The applicant] claims:
· to be a Vietnamese citizen
· to have been born into and raised by a family with anti-communist views and those views have informed her own political opinions
· to have seen her family members being ill-treated in Vietnam by the authorities because they were labelled “reactionary” given their association with and support of anti-communist elements in Vietnam
· to have been treated unfairly when she was a child in Vietnam because, according to her family, she was not permitted to advance to a higher grade in primary school given her family’s anti-communist background
· to have attended university in Vietnam between 2005 and 2009 and successfully attained a bachelor’s [degree]
· to have, in 2010, soon after her arrival in Australia as a student visa holder, opened her first Facebook account under [her own name] on which she did not post any political opinions (first personal Facebook account)
· to have visited her ill father in Vietnam twice in 2012 and, as a result of her second trip in December 2012, became concerned about what she had witnessed, disgusted by the Vietnamese authorities and impelled to become outspoken and critical of the Vietnamese government’s policies
· to have, as early as [February] 2013, established a second Facebook account while in Australia under the name [Alias 1] (second personal Facebook account) where she began liking and sharing the anti-Vietnam Communist Party posts of other Facebook users
· to have, in or around February 2014, started writing unique posts on her second personal Facebook account that were critical of the Vietnamese government and its policies
· to have, in June 2016, become a member of the [City 1] Chapter of the Australia Division of the Viet Tan[3] where she went by the alias [Alias 2] in order to evade detection by the Vietnamese authorities
[3] The Vietnam Reform Revolutionary Party or the Viet Tan is an organisation that aims to establish liberal democracy and reform in Vietnam through peaceful and political means.
· that, in October 2016, she received a letter dated 10 October 2016 from her uncle in Vietnam in which he queried whether she had done anything wrong because the village police had been looking for her for the preceding two months and worriedly advised that she not return to Vietnam because there will be no one to care for her if something happens to her
· to have engaged in various voluntary activities on behalf of the Viet Tan including:
o working in [Department 1] of the [City 1] Chapter from September 2016, then heading that department from 2017
o working in [Department 1] of the Australia Division from 2017
o acting as administrator of two [Viet Tan] Facebook pages since, the first of which was closed “due to unfriendly reports”
o working in the Vietnam Domestic Member Development Department since 2018
o fundraising including by way of making food with other Viet Tan members and appealing for donations in public spaces
o protesting in Canberra outside Parliament House in May 2017 and the Embassy of Vietnam in May 2018
o rallying in Sydney, including in Freedom Plaza in Cabramatta, in May 2017, July 2017, August 2017, January 2018 and March 2018
o speaking publicly [online in] 2022 about the case of Australian political dissident and fellow Viet Tan member Chau van Kham
· that photographs of [her] have appeared on the Viet Tan’s website and Facebook pages, none of which specify her real name but clearly show her face
· that her activity on her second personal Facebook account increased over time and eventually some of her unique posts were republished under the name [Alias 1] on at least two other websites
· that, [in] 2021, her second personal Facebook had over [number] followers when it was closed by Facebook because of complaints made by the Vietnamese authorities
· to have, at some point after her second personal Facebook account was closed, established a third Facebook account under the name [Alias 1] (third personal Facebook account) where she continued to post anti-Vietnam Communist Party material
· that if she were forced to return to Vietnam, she fears that she will be detained as a terrorist and charged with criminal offences[4] that would result in her being imprisoned for a period between approximately 10 and 17 years and that this would occur either:
o as soon as she returned to Vietnam because her political opinion and Viet Tan activities in Australia are known to the Vietnamese authorities; or
o at some point after she arrived because she would eventually resume her political activities in Vietnam, and they would bring her to the attention of the authorities
· that having converted to Catholicism, she had some contact with a Jesuit priest in Ho Chi Minh City and had a grandfather who [served] in the former Vietnamese government’s military service, the Vietnamese authorities would not protect her
· that she was unsure where she might return to in Vietnam as no part of Vietnam was safe for her as she would be targeted by the authorities throughout the country
· that to relocate to a part of Vietnam other than her last place of residence in Long An would be difficult as there was no guarantee that she would be granted a temporary residence certificate by local authorities in any proposed place of relocation, a process that would be further complicated as there was a possibility that she was a person without household registration due to the time she has spent in Australia which is now about 13 years in total since she first arrived in Australia.
[4] Offences against Article 113. Terrorism to oppose the people’s government and Article 331. Abusing democratic freedoms to infringe upon the interests of the State, lawful rights and interests of organizations and or citizens, Criminal Code, Vietnam (27 November 2015), otherwise referred to as the Penal Code
Evidence
The Tribunal has before it a range of material, including, relevantly:
· [the applicant]’s protection visa application form, which was signed by her on 4 October 2016 and received by the Department on 6 October 2016
· [the applicant]’s identity documents, being copies of her two Vietnamese passports, the first of which was provided to the Department
· the protection visa decision record dated 22 November 2017 (delegate’s decision), a copy of which has been provided to the Tribunal by [the applicant]
· the application for review form dated 30 November 2017
· Department file [number] concerning [the applicant]’s protection visa application, which includes all documents submitted by her in support of her protection visa application
· all documents submitted to the Tribunal in support of [the applicant]’s review application, including:
o pre-hearing submission from [the applicant]’s representative dated 23 August 2022 referring to 10 folders of evidentiary material in hard copy that were received by the Tribunal by post on 26 August 2022
o pre-hearing submission from [the applicant]’s representative dated 23 August 2022 referring to one folder of evidentiary material in hard copy that was received by the Tribunal by post on 31 August 2022
o post-hearing submission from [the applicant]’s representative dated 9 September 2022 along with nine pdf files of evidentiary material in soft copy that were received by the Tribunal by email on 11 and 12 September 2022
· 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 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
As stated above, [the applicant] appeared before the Tribunal on 1 and 5 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Two witnesses, namely [Mr A] and [Mr B], provided witness statements to the Tribunal. I considered those witness statements and took oral evidence from [Mr B].
[The applicant] was represented in relation to the review by Mr Christopher Levan, Principal Solicitor at Independence Lawyers in Cabramatta. [The applicant]’s representative attended:
·in person, only some of the hearing that was conducted on 1 September 2022; and
·by telephone, the remainder of the hearing after it resumed on 5 September 2022.
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, I explained to [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. I then explained that under Australian law, to be a refugee she must have a well-founded fear of persecution in Vietnam. I further explained that this meant that I must be satisfied that there is a real chance that she would face serious harm if she returned to Vietnam and that the harm must be directed at her for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. It was further explained to [the applicant] that 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.
Taking into account the content of the pre-hearing submissions made by [the applicant]’s representative and the nature of some of the evidentiary material lodged under cover of those submissions, I then impressed upon [the applicant] that it was her responsibility to make her case and drew to her attention and reminded her representative that, pursuant to section 5AAA of the Act, it was not the Tribunal’s responsibility or obligation to:
· specify or assist in specifying the particulars of her claim;
· establish or assist in establishing a claim.
Before taking evidence from [the applicant], I then sought to engage with [the applicant]’s representative in relation to a range of issues relating to the form and manner in which he had thus far presented [the applicant]’s case to the Tribunal. I sought to canvass these issues with the representative as clarification was needed for the purposes of ensuring that the Tribunal could proceed to effectively discharge its statutory task, including by way of affording a fair hearing to [the applicant]. These issues were as follows:
· That the representative lodged two substantially similar submissions with the Tribunal on 24 August 2022 without clear indication as to which of those submissions the Tribunal should rely upon
· That both of these submissions did not comply with requirements specified in paragraph 10 of the Tribunal’s Migration and Refugee Matters Practice Direction issued on 1 August 2018 (MRM Practice Direction)[5] and paragraphs 11.1 and 11.2 of the Tribunal’s COVID-19 Special Measures Practice Direction – Migration & Refugee issued on 2 March 2021 (COVID-19 SM Practice Direction)[6]
· That the representative lodged two undated witness statements with the Tribunal that did not comply with paragraph 6.7 of the Tribunal’s COVID-19 SM Practice Direction
· That the folder of hard copy evidentiary material lodged by the representative and received by the Tribunal by post on 31 August 2022 was provided without an explanation as to its lateness as required by paragraph 6.13 of the Tribunal’s COVID-19 SM Practice Direction
· That all 12 folders of hard copy evidentiary material received by the Tribunal prior to the hearing were not lodged by the representative in accordance with paragraph 6.12 of the Tribunal’s COVID-19 SM Practice Direction
· That large parts of the evidentiary material lodged by the representative and received by the Tribunal prior to the hearing was in Vietnamese and not translated into English by an appropriately qualified translator in accordance with paragraph 5.5 of the MRM Practice Direction.
[5] Migration and Refugee Matters Practice Direction given by the Tribunal President under section 18B of the Administrative Appeals Tribunal Act 1975 (1 August 2018)
[6] COVID-19 Special Measures Practice Direction – Migration & Refugee given by the Tribunal President under section 18B of the Administrative Appeals Tribunal Act 1975 (2 March 2021)
Unfortunately, rather than engage with the Tribunal courteously and constructively, the representative took umbrage to the Tribunal addressing these matters. It became increasingly apparent that the representative was unwilling to avail himself of the opportunity that was being afforded to clarify his submissions and explain the relevance of some of the evidentiary material that he had lodged on behalf of his client. While I understand that some representatives may struggle to effectively engage with the Tribunal for a variety of reasons, Mr Levan’s conduct before the Tribunal on 1 September 2022 was both unhelpful and unprofessional as evinced through his:
· arriving late to the hearing without apology
· yelling at me when explanation and clarification was being sought in relation to the form and content of the submissions he had prepared and the evidence that he had lodged on behalf of his client
· failing to demonstrate any awareness or understanding of the MRM Practice Direction and the COVID-19 SM Practice Direction and the need for him to comply with the Tribunal’s Practice Directions, despite the fact that:
o all representatives should be aware of the Tribunal’s Practice Directions and comply with them as part of upholding their professional duties and obligations
o all applicable Practice Directions are available on the Tribunal’s website and that the COVID-19 SM Practice Direction was specifically referred to in correspondence sent to him and [the applicant] on 17 August 2022
· arguing with the interpreter about the standard of her interpreting outside the hearing room during a short adjournment that was granted to allow him an opportunity to compose himself and speak with [the applicant] about some of the issues under discussion
· returning to the hearing room after that short adjournment and, when pressed again for clarification, resuming to yell at me and demand that I withdraw from the case and that he would lodge a complaint
· abruptly leaving the hearing room without explanation when I continued to try and engage with him about his submissions, thereby abandoning his client during the hearing despite her visible efforts to try and calm him down.
Following the representative’s departure from the hearing, I made clear to [the applicant] that:
· her representative’s conduct, while unwelcome at the Tribunal, had no bearing whatsoever upon how the Tribunal viewed the merits of her case
· every effort would be made in the circumstances to continue to afford her a reasonable opportunity to give evidence and present arguments
· there was no reason for me to recuse myself from the case.
I was concerned about the impact Mr Levan’s behaviour would have on [the applicant] and her ability to give evidence and present arguments to the Tribunal. [The applicant], after the adjournment, also expressed her concerns about the interpreter’s ability to deal with difficult concepts in the evidence she was hoping to give. As a result of these issues, I decided against taking evidence from [the applicant] and her witnesses on 1 September 2022. [The applicant] was satisfied with this approach. Instead, I proceeded to use the remainder of the time allocated for hearing on that day to:
· have [the applicant] explain that she understood the contents of her statement that was written in English and swear that its contents were true
· have [the applicant]’s two witnesses swear that the contents of their statements that were written in English were true
· highlight to [the applicant] that various parts of the evidentiary material lodged with the Tribunal by her representative were in Vietnamese and not translated into English by an appropriately qualified translator and that it would be difficult for the Tribunal to give any weight to material that it could not understand
· assure [the applicant] that a different interpreter would be made available to her by the Tribunal when the hearing resumed
· adjourn the hearing, with the agreement of [the applicant] and her witnesses, to 2pm on 5 September 2022 on the understanding that the Tribunal would give written notice of that adjournment to [the applicant] and her representative.
On 2 September 2022, the Tribunal notified the representative and [the applicant] that the hearing would resume at 2pm on 5 September 2022.
At 10.16am on 5 September 2022, the Tribunal received notification from the representative that he was unable to attend the resumed hearing in-person as he was unwell but would attend by telephone.
The hearing resumed at 2pm on 5 September 2022 with [the applicant] and [Mr B] attending in-person and the representative attending by telephone. While the representative behaved appropriately after the hearing resumed, they did not apologise to the Tribunal for their unprofessional conduct, particularly their inappropriate behaviour at the Tribunal on 1 September 2022. As at the date of this decision, despite the Tribunal’s confirmation to the representative before he left the hearing on 1 September 2022 that it was open to him to lodge a complaint with the Tribunal if he wished to do so, the Tribunal has not received a complaint.
Upon resumption of the hearing, I proceeded to ask [the applicant] about her family composition, education and work experience both in Vietnam and Australia. I then spent considerable time exploring her Australian immigration history and the circumstances surrounding her being issued a passport by the Vietnamese authorities in 2009 and 2019.
I then explored the basis upon which [the applicant] sought protection and she confirmed that her political opinion was the only basis upon which she believed she would be harmed in Vietnam if she were to return to that country. Asked whether there was any other reason for her claiming to be a refugee, [the applicant] reiterated that she was a political activist and that if she was forced to return to Vietnam she would take her Australian citizen child with her and they would both face danger and that the Australian government needed to protect them. Notably, [the applicant] did not articulate any specific claim as to persecution by reason of her Catholic faith and I note her evidence at hearing that she had not experienced any harm in Vietnam because of her faith or association with Catholics.
After much discussion and clarification, I understood that [the applicant] was claiming to fear returning to Vietnam because she believed she could be harmed because of her political views which she has shared on social media and her membership of and activities with the Viet Tan in Australia.
Following the hearing, I allowed for further time to lodge submissions and evidence. Those submissions and evidence were received by the Tribunal by the due date of 12 September 2022.
Assessment of claims and evidence, and findings
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[7] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[8]
[7] MIMA v Rajalingam (1999) 93 FCR 220
[8] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[9] As explained to [the applicant] at the outset of the hearing, section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[10]
[9] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–170
[10] Sun v MIBP [2016] FCAFC 52 at [69]
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:
…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.[11]
[11] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 at 482
The Tribunal also notes the guidance in The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status[12] (the Handbook) 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’. However, the Handbook also states:
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.[13]
[12] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status’, Geneva (1992) at para 196
[13] Ibid. para 203
I have taken into account the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the evidence of [the applicant] and her witnesses. I have also taken into account [the applicant]’s limited familiarity with the Tribunal setting, noting however her previous engagement with the MRT in relation to two separate visa application refusal cases where she had the opportunity to give evidence and present arguments at two different hearings before two other Members. I have also taken into account [the applicant]’s limited English despite the fact that she has resided in Australia since 2009. With this in mind, I asked straightforward questions, and paraphrased and checked her responses where necessary.
I have carefully considered [the applicant]’s claims, individually and cumulatively, and make the findings set out herein.
[The applicant]’s conduct in Australia
After confirming [the applicant]’s protracted Australian immigration history with her at the hearing, I asked about how her political opinion evolved over time and the reasons why she began to express her opinions more openly on social media. I accept [the applicant]’s claims in relation to how her anti-communist views were shaped in the crucible of her family’s experiences in Vietnam and that her willingness to express those views emerged in Australia where she observed others more freely expressing their political opinion.
However, despite being requested at hearing to provide English translations of the social media posts and comments made on her second personal Facebook account, [the applicant] did not do so. Accordingly, the Tribunal has little by way of persuasive evidence demonstrating the nature of her political opinion and the public expression of that opinion prior to June 2016. Therefore, I find that [the applicant] took on a more public and active demonstration of her political views in or around the time she joined the Viet Tan in June 2016.
At hearing, I raised with [the applicant] a concern I had in relation to her political expression and conduct while she has been in Australia. I queried why she had engaged in some or all of that conduct and expressed a concern that section 5J(6) had been enlivened. I outlined the provisions of section 5J(6) which required me to disregard any conduct engaged in by her in Australia unless she can satisfy me that she engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee. Having been invited to comment, [the applicant] stated that she joined the Viet Tan in Australia for two reasons; firstly, to “show the Australian government what she had been doing”, and secondly “so her voice can be heard to assist her country and her people”.
I find this explanation telling as it demonstrates [the applicant]’s awareness of the fact that her joining the Viet Tan was, in her view, a necessary part of demonstrating to the Australian government that she had a credible protection claim. However, in order to assess any claimed purpose for [the applicant]’s conduct in Australia, the second reason given by her is considered further below.
I note that the claimed development and expression of [the applicant]’s political opinion in mid-2016 appears to neatly coincide with circumstances where it would have become apparent to [the applicant] in June 2016 that her partner visa matter was unlikely to succeed and that her only real prospect for remaining onshore would be to eventually prepare and lodge an onshore protection visa application. It cannot be ignored that [the applicant] became a member of the Viet Tan in June 2016, the month during which the MRT had invited comment in relation to its concerns about her credibility and the fact that she had previously furnished bogus documents to the Tribunal and provided inconsistent sworn evidence to two different tribunals.
Given [the applicant]’s immigration history, I raised my concern about [the applicant] having only engaged with the Viet Tan in Australia, and becoming increasingly active in posting opinions of a political nature on Facebook, once it became apparent to her that she may have exhausted her other migration options. I noted that she had indicated in her protection visa application form that when she left Vietnam [in] December 2012 she had been disgusted by various policies of the Vietnamese government and what she had witnessed in that country in December 2012. At hearing, [the applicant] reiterated that in December 2012 she had seen an elderly female market stallholder harassed and beaten by the authorities in December 2012 but she had been too afraid to intervene. I then queried:
· why it took her so long to publicly express her political opinions in Australia, where she had been free to do so since she arrived in 2009
· why she only had liked and shared the occasional post on her second personal Facebook account for some time
· why it took her almost 3.5 years after her return to [City 1] in December 2012 to join the Viet Tan in June 2016.
[The applicant] explained that she was satisfied with expressing her resentment on Facebook and noted that she only started writing her own unique Facebook posts at some point in 2014.
When asked again to explain the delay in her political engagement and expression, [the applicant] explained that she was not free to express her political opinion at university in Vietnam as there would have been repercussions and when she first arrived in Australia while she did create her first personal Facebook account but was more focused on being a student at that time.
In relation to [the applicant]’s Facebook posts, which were discussed at length during the hearing, I find that [the applicant]:
· did not express any political opinions on her first personal Facebook account
· might have expressed political opinions on her second personal Facebook account but there is no persuasive evidence in English that would enable me to assess the character of those opinions and whether her activity on that account would come to the attention of the Vietnamese authorities and lead to reprisals
· expressed political opinions on her third personal Facebook account but, as [the applicant] conceded during the hearing, this Facebook account would be of no interest to the Vietnamese authorities given her low-level of activity and interaction with other Facebook users on that account.
I also raised a concern with [the applicant] that she lodged her protection visa application in October 2018 and that this was more than five years after she opened her second Facebook account and almost two years after she joined the Viet Tan in 2016 where she went by the alias [Alias 2]. I explained that the delay in lodging her protection visa application raised concerns in relation to the credibility of her claims because:
· she would have been aware of the potential risks associated with her political activities as early as June 2016 given that she was using an alias within the Viet Tan
· she had been receiving immigration assistance from various advisors since arriving in Australia who would likely have alerted her to her protection visa options well before October 2018.
[The applicant] attributed the delay to the fact that, despite telling her previous solicitor about her political activities, her solicitor had failed to advise her about the protection visa options and simply advised her to continue pursuing her partner visa at the MRT. I then warned [the applicant] not to disclose any legal advice she had received from that solicitor but pressed further in relation to when she first found out about her protection visa options. [The applicant] then volunteered that after the MRT had affirmed her partner visa refusal in September 2018, a family friend alerted her to the possibility that she might be able to apply for a protection visa.
I find this explanation lacks credibility for two reasons. First, [the applicant] has previously blamed a solicitor in another Tribunal hearing for her predicament and I find it highly improbable that a solicitor would have not advised [the applicant] about the protection visa option given her circumstances. Secondly, I find it implausible that a member of the Viet Tan who had:
· been pursuing ongoing residence in Australia since 2013
· engaged in extensive political activities with and for the Viet Tan for about two years since it was declared a terrorist organisation by the Vietnamese government in October 2016
first found out about the possibility of applying for a protection visa from a family friend in late September or early October 2018.
The coincidence in the escalation of [the applicant]’s political conduct since June 2016 (through more active social media postings as well as joining the Viet Tan and undertaking various activities with and on behalf of that organisation), and the realisation that her partner visa prospects were unlikely to succeed, cannot be ignored. The fact of [the applicant] joining the Viet Tan in June 2016 would suggest an element of strategy to her protection claims. I note that [the applicant] had not previously been involved in any form of political protest in Vietnam or Australia.
I have also considered the extensive evidence collated by [the applicant] and lodged by her representative with the Tribunal. Of particular concern was the extensive range of photographs of [the applicant] that were provided to demonstrate her extensive activities with the Viet Tan. I accept that [the applicant] undertook those activities but have concerns in relation to why some of those photographs were taken. At hearing, I asked [the applicant] to explain the provenance of one particular photograph she had provided which showed her standing in the driveway of the Vietnamese Embassy in Canberra looking intently into a smartphone sitting on a camera tripod. Of note were the two Embassy security cameras pointing in her direction as the photograph was taken. An explanatory note underneath the photograph stated:
[Applicant name] in front of Vietnam Embassy demonstrates to oppose the unfair, unjust trial held in Vietnam, accusing the members of The Brotherhood For Democracy. The demonstration was held in front of Vietnam Embassy in Canberra on [date], organised by the Viet Tan Party. (The livestream a video broadcast on facebook for viewers all over the world)
I suggested that this evidence had been fabricated and might lead me to believe that her willingness to pose for such photos was because she was looking to strengthen her refugee claim. At hearing, [the applicant] replied that the photograph was not fake and had been “accidentally taken” by a fellow Viet Tan member for distribution to other members. She also stated that it had been provided to the Tribunal to demonstrate part of her duties in the Viet Tan. Following the hearing, [the applicant] reiterated that the photograph was not “fake” and that she habitually saves photographs in which she appears and that she gave that photograph to the Tribunal to support her claims.
[The applicant]’s explanation does not assuage my concern in relation to the high volume of photographic evidence provided to the Tribunal which shows her undertaking various public-facing activities on behalf of the Viet Tan with apparently little regard for the risk involved. I find this particular photograph to be a prime example of such material and do not accept that it was “accidentally taken”. While I accept that political activists may be keen to document their activities for a range of reasons, the sheer volume of photographic evidence submitted in this case leads me to find that much of it has been created to support [the applicant]’s application and thereby leads me to find that the sole reason why [the applicant] undertook those activities was to support her protection visa application.
I have also taken into account [the applicant]’s concession at hearing that her political conduct in Australia decreased from early 2020 due to the impact of COVID-19 restrictions upon her ability to meet with others and the advent of her primary career responsibilities following the birth of her child in [year]. I find that this marked decrease in the expression of her political views since 2020, apart from the one [instance] in [2022], raises doubts in relation to the genuineness of her political conduct in Australia and further suggests that [the applicant] did not engage in this conduct otherwise than for the purpose of strengthening her claim to be a refugee.
Furthermore, [the applicant] has shown a preparedness to provide bogus documents and false testimony in tribunal settings. On a number of occasions during the hearing, [the applicant] did not answer my questions directly or fulsomely. When pressed to provide explanations for some of her conduct and circumstances, I found [the applicant] to be selective in her responses whereby she would provide an initial response only addressing one part of a question so as to provide evidence that she thought would support her case. A more fulsome explanation or account would only be provided when I pressed [the applicant] by way of repeating the question and, in some instances, paraphrasing her response and pointing out that she had not fully answered my question. For example, [the applicant]’s explanation as to why it took her so long to become vocal and express her political opinion and engage with Viet Tan in Australia required me to repeatedly question the logic of her responses until she finally explained that she had initially been concentrating on her life as a student and then was satisfied with expressing her resentment towards Vietnamese communists on her second personal Facebook account. I observed a stilted and rehearsed nature in [the applicant]’s evidence which has caused me to further doubt that she undertook her political conduct in Australia for a purpose other than strengthening her claim to be a refugee.
Having given due weight to the observations made in the preceding paragraphs, I am not satisfied that [the applicant] has engaged in social media postings and attained membership of Viet Tan and participated in various activities for or on behalf of that organisation otherwise than for the purpose of strengthening her claim to be a refugee.
Taking into account the operation of s 5J(6), I must therefore disregard those activities so far as [the applicant]’s claim to be a refugee is concerned.
Consequently, I do 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 to Vietnam, there is a real risk that she will suffer significant harm?
I now turn to consider [the applicant]’s claims against complementary protection criterion.
Having concluded that [the applicant] does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). In so doing, I must assess 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).
I note that s 5J(6) applies only in relation to the consideration of the refugee status of an applicant.
I am left with the fact that the evidence is that [the applicant]:
· has engaged Facebook to post her own anti-communist views, some of which have been republished on other websites
· is a member of the Viet Tan
· has undertaken various activities in support of the Viet Tan.
The question then arises as to whether any of this political conduct has or might come to the attention of the Vietnamese authorities and whether [the applicant] would be harmed as a result.
I have considered country information in relation to Vietnam, including a number of articles and media reports provided by [the applicant]’s representative, which were largely consistent with the following information from the latest Department of Foreign Affairs and Trade (DFAT) Country Information Report on Vietnam:[14]
[14] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (11 January 2022), paras 3.61-3.64
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.
I also note a number of articles and media reports provided by the representative in relation to the harm suffered by members of the Viet Tan in Vietnam, which is largely consistent with the following information from the 2019 DFAT Report[15]:
[15] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019), paras 3.53, 3.54 and 3.56
3.53 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 August 2018, a human rights and environmental activist from Central Vietnam was convicted of crimes under Article 79and sentenced to 20 years in prison and 5 years’ house arrest, the longest sentence recorded in years for national security crimes. The activist had joined campaigns in support of prisoners of conscience, had used social media to share information about human rights violations, and had campaigned for compensating fishermen affected by the Formosa disaster. During his trial, state media highlighted his affiliation with the Viet Tan organisation (see Political Opinion (Actual or imputed)). The sentence handed down was three years longer than that requested by the prosecutor, with the court adding more time to the sentence because the activist remained silent during his trial and did not admit any crimes.
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.
3.54 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.
…
3.56 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.
In addition to the country information provided by DFAT in its two most recent reports on Vietnam, particularly the specific material extracted above, I have also considered additional country information that I have sourced as well as that provided by the representative.
The Vietnamese government considers opposition pro-democracy groups such as Viet Tan to be terrorist organisations. As political opposition parties are illegal within Vietnam,[16] opposition parties are typically based overseas to avoid harassment, arrest and detention.[17] 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.[18] 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.[19] Other foreign-based opposition groups including The Brotherhood for Democracy, who campaign for human rights and democracy in Vietnam[20] and who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[21] 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)[22] and in March 2020 lost his appeal against his 12-year prison sentence for ‘financing terrorism.’[23] 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.[24]
[16] 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
[17] 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
[18] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019), p 25
[19] Associated Press, 'Vietnam declares San Jose-based Viet Tan a terrorist group' (7 October 2016)
[20] Human Rights Watch, 'Vietnam: Drop Charges Against Rights Campaigner' (10 September 2018)
[21] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019), p 25
[22] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019), p 26
[23] Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020)
[24] 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)
Political prisoners are likely to be treated more harshly than ordinary inmates. A 2020 report by local non-government organisation The 88 Project highlights the harsh conditions that the Vietnamese state has imposed upon political prisoners in recent years.[25] The report states that ‘Vietnam has continued practices amounting to torture of political prisoners’ who have been detained or imprisoned.[26] 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’.[27] A US citizen recently released from incarceration in Vietnam after being charged with political offences also described being mistreated while in prison.[28]
[25] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020), p 3
[26] Ibid. p 4
[27] Ibid. p 7
[28] 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)
The Viet Tan is an opposition party run in exile which is considered by the Vietnamese government as a terrorist group.[29] Country information shows the Vietnamese government takes a strict stance against the organisation:
· 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.[30]
· A Vietnamese-American was detained for nine months awaiting trial solely for being a member of Viet Tan.[31]
· 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.[32]
[29] Radio Free Asia, ‘Vietnam: Rights lawyer disbarred’ (16 August 2011)
[30] Ibid.
[31] Radio Free Asia, ‘Vietnam: Activist returns home dejected’ (31 January 2013)
[32] UN News Service, ‘UN human rights office concerned over convictions of 14 activists in Vietnam’ (11 January 2013)
Turning now to the evidence in this case, I accept, at face value:
· that social media posts have been made by [the applicant] on her third personal Facebook account under the name [Alias 1]
· that [the applicant]’s political views have been republished on the Viet Tan Facebook page and on other websites under the name [Alias 1]
· that [the applicant] has been a member of the Viet Tan since June 2016, particularly given the sufficient evidence from witnesses and letters of support from party officials corroborating that claim
· that [the applicant] has engaged in various voluntary activities on behalf of the Viet Tan including:
oworking in [Department 1] of the [City 1] Chapter from September 2016, then heading that department from 2017
oworking in [Department 1[ of the Australia Division from 2017
oacting as administrator of two Friends of Viet Tan Facebook pages since, the first of which was closed “due to unfriendly reports”
oworking in the Vietnam Domestic Member Development Department since 2018
ofundraising including by way of making food with other Viet Tan members and appealing for donations in public spaces
oprotesting in Canberra outside Parliament House in May 2017 and the Embassy of Vietnam in May 2018
orallying in Sydney, including in Freedom Plaza in Cabramatta, in May 2017, July 2017, August 2017, January 2018 and March 2018
ospeaking publicly [online in] 2022 about the case of Australian political dissident and fellow Viet Tan member Chau van Kham.
· that [the applicant]’s image has been published on [specified Viet Tan sites] where she can be seen [information deleted]. While her face is clearly shown in these public-facing fora, she has been ascribed the name [Alias 1] or [Alias 2].
I have closely reviewed the letter that [the applicant]’s uncle purportedly wrote to her on 10 October 2016 which she has provided in support of a claim that her identity was known to the Vietnamese police in Long An Province. However, I give no weight to this evidence as it does not provide any detail in relation to why the local police in Vietnam were looking for [the applicant] in the two months prior to 10 October 2016, the frequency of their visits to her uncle and indeed whether any threats were made.
I discussed with [the applicant] at hearing that I was concerned to understand how her various Facebook posts, Viet Tan membership and other political activities on behalf of the Viet Tan might have come to the attention of the Vietnamese authorities.
In relation to [the applicant]’s third personal Facebook account and other online activism, I raised a concern with [the applicant] at hearing that she had a low profile and there was no real risk of the Vietnamese authorities taking any interest in her in that regard. I explained that the latest DFAT country report and a DHA Country of Origin Services Section Report published earlier this year[33] indicated that the Vietnamese authorities monitor and take action against online activists by hacking their phones and computers as well as trolling their Facebook accounts. Low-level discussion online with friends might be tolerated or go unnoticed but there are inconsistent reports of low-level social media users being subjected to fines, arrests and prison sentences. I pointed out to [the applicant] that according to The 88 Project’s 2020 Human Rights Report Vietnam issued on 6 April 2021,[34] eleven online commentators posting online in their own capacity were arrested in 2020. Three men, namely Tran Trong Khai, Nguyen Dang Thuong and Huynh Anh Khoa, were arrested for administering a Facebook group that posted about economic and democratic issues. Facebooker Nguyen Van Lam was arrested solely for sharing his non-conforming opinions with his 5,000 followers. Female aquaculture engineer Dinh Thi Thu Thuy was arrested and later sentenced to seven years in prison for five Facebook posts that had just 130 likes and 50 shares. According to Frontline Defenders,[35] she was arrested on 18 April 2020 for allegedly creating several Facebook accounts to disseminate articles to distort Vietnam’s policies and to defame its leadership. She was also accused by authorities of criticising the Communist regime’s response to the COVID-19 pandemic. Taking into account this information, I raised my doubt with [the applicant] as to whether her online activism, particularly on her third personal Facebook account, rose to the level of activism which the Vietnamese authorities would take action against. I explained that I had reviewed [the applicant]’s personal Facebook page posts over the past year and noticed that:
· her posts showing pictures and videos about her baby generally received more likes than any of her political posts
· in the comments section of her posts, she rarely engaged with the Facebook account holders who commented upon her political posts and when she did engage her replies were often brief
· for a Facebook account with [number] followers, each political post on her account only attracted on average about [number] comments and [number] shares, thereby suggesting that she was a low-level Facebook user of little profile as only 1% of her followers appear to be paying any attention to what she posted.
[33] DHA Country of Origin Services Section Report – Vietnam Common Claims (effective from 10 February 2022), pp 18-19
[34] The 88 Project, 2020 Human Rights Report Vietnam (6 April 2021), p 18
[35] Frontline Defenders, ‘Woman Human Rights Defender Dinh Thi Thu Thuy Charged and Sentenced’ (20 January 2021)
By way of response, [the applicant] agreed with my analysis and explained that she had been using Facebook less since the birth of her baby and that I should look at her second personal Facebook account for evidence of the level of engagement that might have brought her to the attention of the Vietnamese authorities. I reiterated my request for translated material in that regard. Following the hearing, the Tribunal has not received any translations of posts and comments from [the applicant]’s second personal Facebook account. Therefore, in the absence of that evidence, the Tribunal finds that [the applicant]’s personal Facebook accounts, in themselves, have not or would not come to the attention of the Vietnamese authorities.
[The applicant] also provided a statement following the hearing that her Facebook account was of a high profile because she was more active on Facebook than Chau Van Kham. While that may be the case, this argument is flawed given that Chau Van Kham came to the attention of the Vietnamese authorities in Vietnam as he was arrested with members of The Brotherhood For Democracy and there is no evidence that this arrest occurred because of his low-level Facebook presence.
I also do not fully accept [the applicant]’s claim that her second personal Facebook had over [number] followers when it was closed by Facebook on [date] 2021 because of complaints made by the Vietnamese authorities. At hearing, I asked [the applicant] to show me the Facebook closure notification at hearing and it became apparent that the only reason given for the closure was that the account did not comply with certain guidelines and there was no evidence to support the claim that it had been reported to Facebook by the Vietnamese authorities.
I also explored with [the applicant] at hearing whether she could provide any evidence of Vietnamese government hackers installing spyware to monitor and track the Viet Tan Australia website, the Friends of Viet Tan Facebook page or her personal Facebook pages. I also asked whether she had any evidence Vietnamese government-sponsored online trolls engaging with these Facebook accounts. [The applicant] stated that many communist government sympathisers leave negative comments on the Friends of Viet Tan Facebook page and her personal Facebook page. When I queried how many comments, she replied that her Facebook was not open for comment. I then pointed out to [the applicant] that this did not seem correct as I had looked at her personal Facebook page and that posts were open for comment right up until the day prior to the hearing. [The applicant] fell silent and did not respond to my concern about the inaccuracy in her evidence. However, following the hearing the Tribunal received extensive material in relation to the nature and degree of trolling on the Viet Tan Facebook page, purportedly by Vietnamese authorities or Vietnamese government sympathisers.
I also raised my concern with [the applicant] at hearing that despite the extensive evidentiary material that had been lodged prior to the hearing, there was a lack of persuasive evidence and argument to indicate that:
· [the applicant] has been or will be identified by the Vietnamese authorities for undertaking anti-communist political activities in Australia
· [the applicant] has been or will be identified by the Vietnamese authorities and targeted and harmed for her online social media activities
· any of [the applicant]’s fellow Viet Tan members who engaged in a similar degree of anti-communist government activism such as her have been or will be identified by the Vietnamese authorities and targeted and harmed
· anyone who protested in the manner and frequency that [the applicant] has in Australia has returned to Vietnam and experienced persecution or harm.
In response, [the applicant] stated that her fellow Viet Tan member Chau Van Kham had been arrested in Vietnam and he did not appear as frequently on the Viet Tan’s Facebook page and website as her and that he was not as active as her in terms of protesting on behalf and creating propaganda material for the Viet Tan. Again, while that may be the case, this argument is flawed given that Chau Van Kham came to the attention of the Vietnamese authorities in Vietnam as he was arrested with members of The Brotherhood For Democracy and there is no evidence that this arrest occurred because the authorities were aware of his activities in support of the Viet Tan in Australia.
100. In any case, I reiterated that I accepted [the applicant] was a member of the Viet Tan, but enquired as to how the authorities might have or will become aware of her membership. [The applicant]’s evidence was essentially that the risk of her being identified was real given the Vietnamese government’s use of facial recognition technology when identifying dissidents and the fact that her participation in activities in support of the Viet Tan was well-documented on the internet and it would be easily inferred that she was a member. Notably, [the applicant] did not mention that her identity could have become known to the authorities through:
· Vietnamese government officials monitoring the public protests and rallying she had attended
· other Viet Tan members, such as Chau Van Kham whilst in detention in Vietnam, being coerced to reveal her identity to those authorities.
101. Taking into account the totality of the accepted evidence and country information, I am satisfied that there is a real risk that [the applicant] could be identified as an active member of the Viet Tan and could potentially be further identified through her postings on Facebook as a member of Viet Tan, notwithstanding the reasons I ascribed to the objectives of [the applicant] in so engaging in them.
102. [The applicant] has authored on the Friends of Viet Tan Facebook account various opinions of an organisation that the Vietnamese government considers to be a terrorist group. Most of her public opinions have been authored under the name [Alias 1] and there is considerable material online linking that name to her image. 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.[36]
[36] 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)
103. No evidence is available to suggest that this situation has changed, though I note the latest DFAT Report is silent as to any mention of the Viet Tan.
104. I find it unlikely that the Vietnamese government authorities would have monitored [the applicant]’s personal Facebook accounts. However, I find it likely that the Vietnamese government would have monitored the official Facebook account of the Viet Tan which has a public page with high levels of interaction with Facebook users, frequent and multiple postings. In particular, [the applicant]’s opinions appear on that account under the name [Alias 1] and she used that name when [she] spoke in relation to the detention of Chau Van Kham.
105. I accept that there are numerous photographs of [the applicant]’s attendance at Viet Tan events which are available online at various public-facing channels that are likely to be monitored by the Vietnamese authorities.
106. I am satisfied that the Vietnamese government could have identified [the applicant] as a member of Viet Tan, particularly given her appearance [online] on [date] 2022 where she spoke about the case of Australian political dissident and fellow Viet Tan member Chau Van Kham. I am also satisfied that were she to return to Vietnam under her own identity, the authorities could identify [the applicant] and connect her to the ‘terrorist’ activities that she has undertaken in Australia.
107. Whilst I am comfortable with my finding that it is unlikely that [the applicant]’s third personal Facebook account would ordinarily be monitored, and has a very low interaction rate with it, I do accept that if [the applicant] otherwise came to the attention of the authorities, a search of her public-facing Facebook page would reveal her many anti-Vietnam government, anti-communist, and sympathetic Viet Tan postings. Considering the earlier mentioned country information on government action against members of Viet Tan who share material on Facebook that is critical of the Vietnamese authorities, I am satisfied that there is a real risk that [the applicant] will face significant harm were she to return to Vietnam.
108. Having considered all of [the applicant]’s claims, individually and cumulatively, and all the evidence and submissions, I am satisfied that upon her return to Vietnam [the applicant] will be:
· identified as a member of the Viet Tan who has engaged in terrorist activities
· arrested and charged for contravening various provisions of Vietnam’s Criminal Code
· detained, and potentially imprisoned, in Vietnam where she will be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.
109. I am also 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
· the risk [the applicant] faces, given her membership of the Viet Tan, is specific to her and is not one that is faced by the population generally
· the cruel or inhuman treatment or punishment or degrading treatment or punishment to be faced by [the applicant] is not inherent in or incidental to lawful sanctions under Vietnam’s Criminal Code.
110. Accordingly, I am 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). Therefore, I find that [the applicant] does satisfy the criterion in s 36(2)(aa).
Summary: Refugee criterion
111. Considering all of the above circumstances, both individually and cumulatively, I find 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 and therefore she is not a refugee within the meaning of s 5H.
Summary: Complementary Protection criterion
112. Considering [the applicant]’s circumstances, both individually and cumulatively, and the country information, I find 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.
Conclusion
Having concluded that [the applicant] does not meet the refugee criterion in s 36(2)(a), the Tribunal considered the alternative criterion in s 36(2)(aa) and finds that she meets the alternative criterion. Therefore, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
decision
114. The Tribunal remits the matter for reconsideration with the direction that [the applicant] satisfies s 36(2)(aa) of the Act.
Peter Papadopoulos
MemberAttachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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 below.
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 below.
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.
Extract of key provisions of the Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Remedies
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Jurisdiction
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