1732822 (Refugee)

[2024] AATA 2847

1732822 (Refugee) [2024] AATA 2847 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Minh Thanh Nguyen (MARN: 2117716)

CASE NUMBER:  1732822

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Patricia Tyson

DATE:2 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 May 2024 at 11:12am

CATCHWORDS
REFUGEE – protection visa – Vietnam – religion and imputed political opinion – Buddhist refused to join state Buddhist association, father’s role in former South Vietnam and land disputes – father a village chief – house and land confiscated and applicant and family members harmed – applicant entered Buddhist order in another country – questioned, threatened with loss of citizenship and blacklisted – later land dispute unresolved and claim of collusion by authorities and neighbour – age, personal circumstances and character – multiple and extended travels and returns, and new passport – delays in travelling after visa granted and applying for protection – previous marriage and child not disclosed in application – family’s historical experiences accepted as plausible – country information – occasional harassment not serious or significant harm – anguish from separation from family members and community not systematic and discriminatory conduct – open to applicant to request ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(c), 36(2)(a), (aa), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

BACKGROUND TO THE REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 28 July 2017. The applicant claimed to fear harm because of her Buddhist religion, refusal to join the State Buddhist Association, her father’s previous role in South Vietnam, and a land dispute. The delegate refused to grant the visa on the basis that the applicant’s claims about her land dispute were not supported by evidence, she had previously travelled and returned to Vietnam without being arrested, and her delay in applying for protection indicated that her fear was not genuine or deeply held.  

   CLAIMS AND EVIDENCE

   Evidence to the Department

3. The claims made by the applicant in her visa application and a statement can be summarised as follows:

   ·Her father was a village chief under the prior Republic of Vietnam. After South Vietnam was occupied by the Communists, her father was re-educated from [Year] to [Year].  In [Year] the government confiscated her family land, thousands of hectares. It also confiscated her parents’ house and they had to live on a small boat. The family were not allowed to work or go to school. The applicant’s siblings had to survive by themselves. Her two elder brothers were arrested, interrogated, bashed and passed away after being released. Another brother escaped on a boat. The applicant and her father moved to [District], a distant area, where he worked in a jungle farm and she went to a rural village school.

   ·In [Year] the applicant left her parents’ place. Public Security came to ask about her and took away her citizenship right. She appealed to the higher authorities but was oppressed and her situation deteriorated and became difficult.

   ·In [Year] the applicant entered Buddhist nun-hood in [Country 1]. The Public Security asked her parents to sign papers to cancel her citizenship and her parents appealed against the decision.

   ·In 2012 the applicant’s mother was seriously ill and asked her to return to Vietnam, if not she would become stateless.

   ·In 2016 the applicant returned to Vietnam and established a Buddhist alter at home. The local Ward Head confiscated her parents’ place again and forced her to go to the State Buddhist Association. She stood up against them and said she did not enter the State Buddhist Association of the Communists.

   ·The applicant was afraid they would arrest her and torture her to death like her brothers. The applicant wants to live and practice her Buddhist religion.

   ·The applicant was asked to work for the State Buddhist Association. She was not allowed to permanently live and practice Buddhism in Vietnam. Non-government Buddhist organisations have been prohibited to practice. She would have to register and follow the instruction of the State Buddhist system. She fears being imprisoned or put in a re-education camp. She would be unable to seek protection or relocate because of the political system and household booklet policy.

4. The applicant provided a copy of her passport, issued in January 2015, to the Department. The applicant’s passport shows a lengthy and frequent travel history between January 2015 and May 2017, with regular travel to [Country 1] transiting through [Country 2], but also trips to [Country 3] and Australia.  

5. The applicant attended an interview with the delegate on 9 November 2017. At the interview she expanded on the claims raised in her application. Her evidence at the interview is discussed in further detail below, as relevant.

6. On 28 November 2017 the applicant’s then representative emailed the Department a document said to show her house and land had been confiscated. The translation of the document indicates it is an ‘authorisation certificate’ made [in] November 2016 given by the People’s Committee of Ward and People’s Court of [City]. It appears to show the applicant authorising another person ([Ms A]) to represent her in a dispute.  

   Evidence to the Tribunal

7. With her review application, the applicant provided the delegate’s decision, a copy of her written claims to the Department and translation, and the ‘authorisation certificate’ given to the Department.

   Pre-hearing submissions

8. On 25 October 2023 the applicant returned a completed pre-hearing information form in response to a request from the Tribunal. In that form, the applicant outlined claims similar to those made to the Department, and said that her family had a land dispute with the adjacent landowner and the authority did not give them a fair go. It referred to attached supporting documents, but nothing further was provided at that time.

9. On 18 March 2024 the Tribunal received emails from the applicant’s representative attaching submissions and a number of supporting documents. The submissions provide a background to the applicant’s claims similar to the information given to the Department regarding her family’s history in Vietnam, her joining the Buddhist nun-hood in [Country 1], being threatened with loss of her citizenship, returning to Vietnam and establishing a Buddhist alter, being forced to join the State Buddhist Association, and being bothered and watched by authorities. It is claimed that after having their land and property confiscated, and after a long time of saving up money, the applicant’s parents purchased land and gave it to the applicant. However, in 2016 she had a land dispute with an adjacent owner. She appealed many times but authorities did not handle her case properly or fairly, and she did not receive any response. The submissions provide an explanation of why the applicant did not previously seek protection in [Country 1, 2 or 3]. They also explain why she is unable to move to another area of Vietnam due to the requirement for confirmation with local authorities.

10. The submissions argue that authorities have been trying to take away the applicant’s citizenship, interfere with her religion and treat her unfairly with the dispute. They will harm the applicant like they did her father, brothers and other citizens who have different beliefs and opinions. The submissions assert that the applicant has a well-founded fear of persecution for reasons of political opinion and religion.

11. The submissions provide new information about the applicant’s family, stating that she in fact had a daughter with her former spouse before practicing her religion. Her daughter is in Australia and has a family here. The applicant had not disclosed in her application that she had been married or had a child. The submission makes arguments about the applicant’s work for the community and character. It argues that the Tribunal should consider the best interests of the child in accordance with the Convention on the Rights of the Child in respect of her grandchildren.

12. With the submissions, the applicant provided a number of documents. These include documentation relating to her birth, her daughter’s birth certificates and a document relating to the ‘education and rehabilitation’ of the applicant’s father. There are also documents relating to the land dispute. These are: a legal services contract between the applicant and [Mr A] dated 18 August 2016; a Certificate of Land Use Rights, Ownership of House and Other Properties Associated with the Land dated [January] 2010 in the name of the applicant’s daughter relating to a property in [City]: an Authorisation contract dated 27 June 2016 between the applicant and her daughter authorising the applicant to act on her daughter’s behalf; minutes of a meeting of People’s Committee of Ward 2 regarding the resolution of land disputes between the applicant and [Mr B], dated 16 February 2017; and a Power of attorney dated 28 November 2016 in which the applicant authorises [Ms A] to perform certain actions. This appears to be a different translation of the same document given to the Department. With the exception of the daughter’s birth certificate these documents appear to have been translated in Vietnam rather than by a NAATI accredited translator.

13. The emails also attach a number of recordings accompanied by an English transcript from an unaccredited translator, as well as a screenshot of a phone contact said to be for [Mr C]. The first of these, one of which is a video, refer to ‘Aunty [Nickname]’ who the applicant clarified at hearing to be her maternal aunt. The people in the recordings discuss what seem to be largely historical events regarding the applicant’s family including land confiscation. The third recording is an audio recording labelled as ‘Contact [Mr C]’. It seems to record a conversation between a man and two women and then a second conversation between a woman and a man who is said to be [Mr C], a local official who features in the applicant’s claims. The conversation relates to the land dispute. 

14. A further email was sent to the Tribunal on 20 March 2024 attaching a video and photographs. The email indicates that one of the monks was injured and taken to hospital and the applicant voluntarily became his support. The attached files, which include the injured monk and the applicant and invoices and a payment receipt for sizeable medical fees for an overseas Medicare ineligible patient, support this claim. In the email the representative submits that the applicant has a ‘golden heart’ and that it is in Australia’s best interest to allow her to reside in Australia to help the community.

15. The submissions and supporting documents are considered in further detail below, as relevant.

    Hearing

16. On 14 March 2024 the applicant’s representative provided a hearing response form, requesting that the Tribunal take oral evidence from two witnesses – her partner and her daughter. It was indicated her daughter would give evidence in relation to the land dispute claim, and her partner would give evidence relating to persecution by the previous regime of Vietnam.

17. The applicant appeared before the Tribunal on 21 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The first part of the hearing took place with an in person interpreter. The hearing was not completed in the scheduled timeframe and the applicant and her representative elected to continue the hearing that same day rather than adjourn to a different day (noting that her representative would be unavailable for a number of weeks and the applicant said she would be anxious if it were delayed). After an adjournment for lunch, the hearing continued with an interpreter over the telephone.

18. At the hearing, the applicant reiterated and expanded on some of her evidence to the Department. She made new claims including that she was previously arrested on two occasions in Vietnam and that she had taken part in activities with anti-communist groups in [Country 1] and Australia.

19. The applicant had requested the Tribunal take evidence from a man who she described as her partner. The applicant clarified at the hearing that he was her ‘religious partner’ rather than romantic partner. She said that he was also originally from Vietnam and is now an Australian citizen. She had met him in [Country 1] in 2014 or 2015 and did not know him in Vietnam. She indicated he could give evidence about the persecution by the previous regime in Vietnam, and that he had left Vietnam in [Year]. When I asked what she wanted him to give evidence about, she said he was a refugee in the war and had a lot of injuries, and he now has a lot of medical conditions that need her help. I asked what evidence he could give about her own experience, and she said he could give evidence about his experience being harassed and suppressed and coming to Australia. The applicant did not suggest that this witness had any direct knowledge of her own experiences in Vietnam. It is not apparent how his own experiences prior to leaving Vietnam in [Year] are relevant to the applicant’s claims and particularly to the chance or risk of her being harmed in the future. Considering these matters, I determined not to take oral evidence from this witness. I advised the applicant that she could submit a statement from him in writing if she wished.

20. The representative made oral submissions at the completion of the hearing. He then asked that I outline my concerns in writing so he could address them further in a written submission. I declined to do that, but summarised some of the concerns I had raised with the applicant during the hearing. I note that he later requested and received a copy of the hearing recording. The representative advised he would be away and requested and was given four weeks in which to provide submissions and any further material.

    Post-hearing submissions

21. On 19 April 2024 the Tribunal received an email attaching submissions and a number of documents. The submissions respond to some of the concerns raised at the hearing and make arguments on behalf of the applicant. The attachments include various media and internet articles about land issues in Vietnam, the Vietnamese government and its history, the practice of Buddhism, and particular cases in Vietnamese courts. There are also photographs of the applicant in [Country 1] and at community functions in Australia. The representative has further submitted a petition relating to one of these community organisations, and information relating to property prices in Vietnam. There is also a Sydney Morning Herald article relating to persons receiving permanent residency in Australia in recognition of their actions during the recent attacks at Bondi Junction. This material is considered in further detail below, as relevant.

    CRITERIA FOR A PROTECTION VISA

22. 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.

23. 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.

24. 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).

25. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

26. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

27. 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.

    FINDINGS AND REASONS

28. The issues in this case are whether the applicant’s claims are credible and whether there is a real chance of her being seriously harmed or a real risk she would suffer significant harm in Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality and third country protection

29. The applicant has submitted her Vietnamese passport and both her and her daughter’s birth certificates. She gave evidence in the Vietnamese language and displayed obvious familiarity with Vietnamese geography, institutions and history in the course of her evidence. I accept her identity and nationality as claimed.

30. The applicant says she lived primarily in [Country 1] between 2003 or 2004 and 2016. On her evidence at the hearing, she travelled to [Country 1] first on student visas, then was later sponsored by her monastery there on five year visas. She thought the later of those ended in around 2015. Her passport, issued in January 2015, contains three further shorter term [Country 1] visa labels which were issued to her after January 2015: the first a multiple entry visa valid between January 2015 and January 2016, the second a single entry visa valid between April and July 2016, and the third a multiple entry visa valid between October 2016 and April 2017. There is also an expired [Country 3] visa and multiple short term entries to [Country 2]. The applicant gave evidence at the hearing that she had also made short visits to [Countries 4 and 5].  Stamps indicate that the applicant also entered [Country 1] on what appears to be a short-term visa in July 2023 and departed around two weeks later. The information before me shows that prior to departing she obtained permission from the Department of Home Affairs and a visa that would facilitate return travel. She said at the hearing that she travelled to [Country 1] because the temple had been damaged in a storm and she went to help with repairs. Photographs of her activities in [Country 1] were provided with the post-hearing submissions.

1. Although as a Vietnamese citizen the applicant is able to enter Thailand or Cambodia without a visa, she may do so for only 30 days.[1] I find that this does not amount to a right to ‘reside’ within the meaning of s 36(3). Although she had a long residence in [Country 1], the applicant’s passport evidences that she required visas for her travel to [Country 1] rather than, for example, being a citizen or holding some other right to residence there. The [Countries 1 and 2] visas previously held by the applicant are now expired. I find that the applicant does not have a presently existing right to enter and reside in [Country 1 or 2]. There is nothing before me to suggest that she has such a right in respect of any other country. I find that s 36(3) of the Act does not apply.

   Applicant’s background

   [1] Royal Thai Consulate-General in Ho Chi Minh City, Visa Exemption Countries and Visa on Arrival, Ministry of Tourism Cambodia, ‘Access to Cambodia', >

   According to evidence given by the applicant in her application and at the hearing, the applicant was one of [Number] children. She now has [sisters] who live in Rach Gia, Kien Giang in Vietnam, a sister in Sydney and a brother in Melbourne. Her parents and other siblings are now deceased. She has a daughter and two grandchildren who live in Australia. Her daughter arrived in Australia in 2016, one grandchild was born here and another arrived more recently. They are all Australian citizens.

2. The applicant worked on a [workplace] and later as a self-employed [occupation] in Vietnam. She married but she and her husband divorced when their daughter, who was born in [Year], was a few years old. After her divorce, the applicant pursued her religion, first in a monastery in Vietnam and later in [Country 1]. On her evidence she lived in [Country 1] from 2003 or 2004 until around early 2016, returning only for occasional short trips. Her travel and stay in [Country 1] were funded by offerings from Buddhists. Her daughter also lived in [Country 1] for a period. The applicant indicated at the hearing that she had previously visited Australia perhaps five times, although she could not recall exactly. The delegate’s decision, which sets out her migration history, indicates she made trips to Australia between February and May 2009, March and June 2010 and May and August 2015. She then returned to Australia in May 2017.

3. In Australia, the applicant opened a small business [doing a job task] for other Buddhists to support herself.

   Applicant’s daughter

4. The applicant did not disclose that she had a daughter in her protection visa application. Her relationship status is recorded as ‘never married’.  When I questioned the applicant about this at the hearing, she did not give a satisfactory explanation. She initially claimed it was because, as a Buddhist nun, she cannot have any siblings, parents, children or family, and so always says she is single. She said she was advised by a company who helped her apply for visas to say she had no family. I noted I was asking specifically about the protection visa application once she was already in Australia, and she said she had been advised that as she had said she was single from the beginning, she should keep it the same, and that as a nun it would be strange to make it not single. As I pointed out to the applicant, she had mentioned other relatives, just not her daughter. At that point she shifted her evidence and said that that information should be declared but that as a nun she cannot declare family such as a husband or child. She further claimed that her previous lawyer had said they would not help her unless she said she was single. The post hearing submissions reiterate that Buddhist practitioners renounce family relationships when entering monastic life, although still declare one’s parents. However, the submissions go on to assert that the applicant’s previous representative just assumed the applicant was single. This is different to the applicant’s evidence. The submissions argue that the applicant had no reason to hide the fact she has a daughter.  

5. The visa application is an official government form that specifically asks for factual information relating to family members inside and outside Australia. I do not believe that the applicant would have considered it necessary or appropriate to omit this information because it was not consistent with being a nun. I do not accept either of the conflicting assertions about her former representative. As I raised with the applicant, she seems to have knowingly withheld information about her connection to her daughter and that her daughter was in Australia. While I do not find the applicant’s explanations convincing, her actual reasons for withholding this information are unclear and ultimately it is not of relevance to the issues arising in the review.

   Historical events in Vietnam

6. At her interview with the Department, the applicant described the experiences of her family following the Communist takeover of the Republic of Vietnam in 1975, consistently with her written statement. She explained that her father had been a village chief and was sent to ‘re-education’. Her family had significant landholdings which were confiscated, leaving them to live on a small boat. Her two older brothers were jailed. After their eventual release, one became mentally ill and passed away after being hit by a car, the other died from the torture he had experienced. The applicant referred a number of times to these events during the hearing. The applicant has submitted recordings of her family members speaking about some of these historical events. She said at the hearing that she had submitted these so I would believe her story. Prior to the hearing she also submitted a document regarding her father’s re-education, which I accept as genuine.

7. The post-hearing submissions reiterate some of the applicant’s experiences in her youth in Vietnam and include additional information that the applicant’s grandfather was a landlord and was buried alive when the North Vietnamese took over the south. The submissions attach material which broadly supports the applicant’s claims relating to her family history and the historical confiscation of land from landholders in South Vietnam.[2] I note that the submissions refer to a ‘witness’ who did not want to reveal herself in front of the camera because she is afraid authorities will take revenge and arrest her. It is not clear who this is referring to and whether it may be one of the persons speaking on the recording submitted by the applicant. The submissions also refer to the applicant’s siblings having fear regarding the Vietnamese government and her brother having obtained protection in Australia.

   [2] Communist Crimes, ‘Communist Dictatorship in Vietnam (1945-present), Wikipedia, ‘Land reform in Vietnam’.

8. The submissions indicate the AAT can refer to the applicant’s brother’s case to confirm the applicant’s story. No details of his case have been provided to me, but in any event, I consider that the applicant’s claims about her family’s experiences are entirely plausible in the context of that historical period. I accept that the applicant and her family had the experiences she claims, including that her grandfather was killed, her father and two brothers were detained and both brothers later died, the family’s landholdings were confiscated leaving them to live on a small boat, and the applicant’s education was impacted. My impression was that these experiences have, understandably, left the applicant with a deep mistrust and genuine subjective fear of Vietnamese authorities, and that this has framed the applicant’s perception of her more recent experiences in Vietnam and interactions with authorities.

   Land issues in 2016

9. In her written claims with the visa application, the applicant stated that the local Ward Head had confiscated her parents’ place. As set out in the delegate’s decision which the applicant submitted to the Tribunal, the applicant claimed at the delegate’s interview that in 2016 she returned to Vietnam to find that the local administration had confiscated land left to her by her parents. She lodged many appeals but received no response. She fenced her land and noticed the government had placed surveillance on her movements. She hid in the house for three to four days then managed to escape. On her evidence at the interview, she had appealed to the village head [Mr C]. She described an incident where thugs damaged her property. They wanted to arrest her but she hid inside her house. Thugs did surveillance and after three or four days she escaped to another city.

10. The applicant’s oral evidence to the Tribunal was generally consistent with her claims to the delegate. She said that her official residence in Vietnam was in Rach Gia, Kien Giang where she had grown up. She would stay at this address for trips back to Vietnam from [Country 1]. She has two sisters who remain living at that address with their families. However, when she returned to Vietnam in 2016 she instead went to live at the property left to her by her parents at [City]. She described this property as being in the alleyways of a city area, consisting of land and an old house. When she went to live at the property in June or July 2016, she re-measured the land and learnt that 100sqm had been taken by the house next door. She said that she had only 300sqm left, that the neighbour had built a house in her land. The applicant claimed she had reported the problem to the local authorities and it was handed to [Mr C]. The applicant said she hired a solicitor to help her, but the application took forever and because Hai was in charge, was never resolved.

11. The applicant claimed that [Mr C] had harassed her on a number of occasions. She raised a new claim that [Mr C[was a relative of the neighbour who had built on her land. When I asked how she knew that, she claimed they had shouted insulting and degrading things at her together, and when she asked around, the neighbourhood said they may be distant relatives. She claimed [Mr C] would frequently come and shout things at her because, she thought, he wanted to get her whole land. She said he went to the village and accused her of not being local. She also said that from July or August 2016 he started coming to her property and harassed her regarding her Buddhist practice.  She thought that they wanted to create problems and confiscate her land.

12. The applicant described an incident in February 2017 where people came to her land and created a big commotion, shouting and suppressing her. She claimed they were calling her degrading terms which is very offensive behaviour towards a Buddhist practitioner, saying she was not a true practitioner because she practiced at home rather than in an order. However, she believes their true concern was over her land rather than her religious practice. The applicant argued back aggressively and accused [Mr C] of suppressing citizens and not respecting her religion. After this, the applicant hid inside her home for a few days before eventually escaping in the night, walking to a bus station and taking a bus to Saigon, where she said she hid for a few days here and there and bought an air ticket to come to Australia. She then said she was in Saigon for a few months, staying with different acquaintances in different districts for a few days at a time.

13. The applicant has submitted a number of documents to the Tribunal in support of the claims. Firstly, there is a Certificate of Land Use Rights, Ownership of House and Other Properties Associated with the Land relating to a particular property in [City] Commune, dated 28 January 2010. This certificate identifies a person with the name of the applicant’s daughter as the land user. The applicant gave evidence at the hearing that the land was held in her daughter’s name because the applicant, as a Buddhist nun, cannot hold material assets. When the applicant’s daughter came to Australia in 2016, she transferred the land to the applicant. One of the documents given to the Tribunal is a legal services contract between the applicant and [Ms A] dated 18 August 2016. This contract indicates that the applicant is the authorised representative of her daughter and provides for legal services in relation to the applicant’s request for advice and protection of her rights in the case of a land use rights dispute. The applicant has provided a further document dated 28 November 2016 in which she gives [Ms A] power of attorney relating to the land dispute, including to participate in conciliation meetings, file a law suit and participate in litigation regarding the land dispute with [Mr B]. This appears to be a different translation of the same document given to the Department.

14. The applicant also provides what are said to be People’s Committee of Ward 2 minutes of a meeting regarding the resolution of land disputes between the applicant and [Mr B], dated 16 February 2017. It refers to [Mr C], Deputy chairman of People’s Committee of Ward and to five other specified officials, although their names are all handwritten and illegible. It identifies the relevant parties as [Mr B] and [Ms A] (referring to the applicant’s authorisation).  It appears from the translation that some handwritten parts of the minutes were illegible but somebody (it appears perhaps [Ms A]) has included typed notes. These notes provide a detailed account of the meeting in which [Ms A] asserts that [Mr B] has built a house which encroaches on the applicant’s land by 1.76 metres. [Mr B] responds that he obtained permission from local authorities, and states that the house is not directly adjacent to the land boundary. He asserts his use is in accordance with his land use rights certificate and does not encroach on the land of neighbouring households.  [Ms A] states that if the explanation of the authorities is that the land use rights certificate was issued incorrectly, then it is not appropriate for her to adjust the land use rights certificate. Rather, if the state issued an incorrect certificate they should revoke and adjust it. It states that at this point, the People’s Committee gave an opinion that based on a survey report on 8 February 2017, [Mr B]’s land use is in accordance with the land use rights certificate issued, and the applicant’s daughter’s land use certificate is larger than the actual use. The Committee states that [Mr B] claims there was no agreement regarding the land use boundary, and the dispute remains unresolved. The Committee recommends that the parties continue to file a complaint with the city court for further consideration.

15. When I asked the applicant what made her think the government was implicated in what appeared from the documents to be a dispute between her and a neighbour, she referred to having been suppressed and harassed since 2003, previously held and questioned, and them knowing she had land so wanting to continue that treatment. She claimed she had been questioned and accused many times of being involved in activities overseas against the government. However, when I asked when this occurred her response was vague, saying it occurred ‘many times’ and then spoke about her mother previously being harassed and having to fight for the applicant’s name to remain on the household register in 2003. The applicant’s representative then asserted that the government had not done anything in response to the concern raised by the applicant against her neighbour, and that they had taken the side of the neighbour. He claimed it was too obvious for the government to do anything directly, so they had acted with the neighbour behind the scenes.

16. Again later in the hearing I put to the applicant that I was having trouble understanding what made her think that the government was behind the land dispute, and she referred again to hearing that [Mr C] and the neighbour were related. She claimed the neighbour was protected by [Mr C]. I asked if she thought it was just [Mr C] or if other authorities were involved and she said she did not know who else was behind it. Later, she asserted that [Mr C] was being directed by somebody higher. Her representative made oral arguments that the Tribunal should have regard to what the government did rather than what it said, and the culmination of that conduct over many years and suggested that the local government would have been following instructions of someone higher who would have known who the applicant was, where she was from and her background. Similar arguments are made in the post-hearing submissions. In her protection visa and to the delegate, the applicant’s claims had been framed as the government taking her land. To the Tribunal, she claimed the government was behind the actions of a neighbour. As I raised with the applicant, her claims about the government involvement in the land dispute seem to have evolved as the application has progressed and even over the course of the hearing.

17. From the material submitted to the Tribunal, it appears that there was a dispute with a neighbour over boundary lines. It seems that the Committee, chaired by [Mr C], was indicting that it could not resolve the dispute and the parties need to pursue it in court. I raised with the applicant that the minutes of the 2017 land dispute meeting she had submitted did not suggest [Mr C] or the government was acting against her, discriminating against her or intending to inflict harm. Rather, it seemed that there was some sort of inconsistency between the land use certificates, and that the dispute was unable to be resolved at that level so it was recommended she appeal to the court. There was nothing in that document that gave the impression that it was a government action. In response the applicant referred to her past suppression. The applicant’s representative made oral submissions that this was essentially challenging the applicant to take the dispute to court, that she did so but her lawyer could not do anything as she was unable to go against the whole of the Vietnamese community.

18. I found the applicant’s evidence about the steps she had taken to pursue the land dispute vague. I asked if she had taken formal steps to appeal or do anything about it, and she claimed she had tried to complain to the [City] court and higher management but perhaps the paperwork was buried, and nothing came of it. She claimed there was a lot of paperwork that went back and forth. I asked about her last contact with the solicitor and she said she could not recall but thought it was at the end of 2016 while she was still in Vietnam. She claimed the solicitor took her money and never did anything else, and suggested that [Mr C] might have paid off the solicitor. She said the solicitor had changed her number. The post hearing submissions suggests that the solicitor gave up on the case when she realised she could not deal with the authority, and that she was afraid to get involved in the case.

19. While taking evidence from the applicant’s daughter during the hearing, I asked the applicant if there were any further questions she would like me to ask her daughter. The applicant said at that point that her daughter had tried to contact the lawyer in 2017. When I asked her daughter about this, she corroborated this claim and said that she had tried to contact the lawyer but the lawyer would not resolve the matter and although she had said she would file in court, they did not hear anything further. I found it difficult to understand whether or not an application had in fact been filed, and when.

20. The applicant said her daughter had recently returned from Vietnam. I asked about any attempts made by her daughter on that visit to follow up what was happening with the land, and she said that her daughter went back and tried to follow up what was going on. This had apparently involved calling [Mr C], who had told her daughter that she should go to the local office. In relation to this, the applicant has submitted what she claims is a recording of her daughter speaking to [Mr C], along with an unofficial translation. On the applicant’s own evidence, the recording between her daughter and [Mr C] is actually a compilation of different conversations attempting to contact [Mr C].

1. In the recording, the person said to be the applicant’s daughter accuses the person she is speaking to of telling her mother that he would not deal with the land and treating it as if the matter was to be ignored. She assert that the land has been lost and a neighbouring person is encroaching even more and asks [Mr C] if he can resolve it. The man said to be [Mr C] asks what she is talking about and says if someone is encroaching on her land she should file a complaint to recall it. He denies that he would have said to ignore it. The conversation continues with essentially the woman said to be the applicant’s daughter asserting that the man had previously refused to assist her mother and the issue now having worsened. He repeatedly recommends that she come to the office to discuss it and find a solution. The woman said to be the applicant’s daughter refers to attempts she has made to discuss the matter with him previously. She refers to wanting to fence the land to prevent further encroachment but needs a permit for fencing. The applicant said her daughter had ultimately not been able to meet with [Mr C] despite having been to the local afternoon to try to see him many times. However when I asked if her daughter had gone to the office as suggested by [Mr C] in the conversation, she claimed that her daughter had dared not go because she was an Australian citizen and afraid of being held in custody and arrested.

2. The applicant’s daughter corroborated the applicant’s evidence. She said that after she came to Australia in 2016, her mother had told her of being harassed by Vietnamese authorities. She had earlier heard about harassment from her grandparents. She referred to her mother having found that the land was confiscated and that authorities had not done anything about it. She confirmed she had returned from a trip to Vietnam three weeks earlier. She said she had at that time she witnessed this first hand. She said when she went back and followed up on the problems with the land, they had rejected that claim and said it did not happen. She referred to having recorded the conversations with them, and said that she had been summoned to the ward office but was afraid of what would happen so did not go. She explained that by ‘summoned’ she meant that when she asked about the progress of the land report they said she needed to go to the office to talk about it. The applicant’s daughter said she believed the problems with the land were part of the ongoing issues where her grandparents’ land had been confiscated, and believed the authorities were trying to get the land.

3. The documents the applicant submitted suggest that in the February 2017 meeting [Mr C] had essentially said that he could not resolve the matter and it would need to be taken to the court. Although somewhat vague, the applicant’s evidence to both the Tribunal and delegate was that she had taken steps to appeal. I asked the applicant why, if she had appealed to the court, she and her daughter were still following up with [Mr C]. She claimed her solicitor had told her it had been transferred to the court but there was no news about the application. I questioned her about what she expected [Mr C] would be able to do, if he had previously been unable to help and it had already been appealed to the court. She then claimed that it was not to follow up about the land but to question [Mr C] about whether he had suppressed her.

4. I raised with the applicant that there was nothing in the conversation to suggest any sort of discrimination, intention to harm her, or that [Mr C] had any personal involvement in the matter. In response, she referred to the past mistreatment of her family. The applicant’s representative argued that obviously [Mr C] would not admit he had done something wrong. Even accepting that the voices in the recording are who the applicant says and that her daughter was in fact speaking to [Mr C], in my view the recording in no way evidences that [Mr C] had any sort of personal relationship with the neighbour, or was involved in the land dispute in any way other than as a government official attempting to resolve it. It indicates that [Mr C] had said that the paperwork (presumably that relating to the land) had been done incorrectly and needed to be redone. This recording does not support the applicant’s claim that [Mr C] was somehow conspiring with the neighbour to confiscate her land or failing to resolve the dispute in her favour out of some kind of motivation or orders to target her.

5. I have additional concerns about the applicant’s claim that authorities were intent on confiscating her land, through her neighbour or otherwise. The applicant gave evidence that the house was vacant and she suspected it was further invaded, that the neighbours living there had said that was what was going to happen. She said that the value of her land has risen so much that it will be taken away soon. She claimed at the hearing that if she returned to Vietnam, she would be arrested, that authorities would want to confiscate her land by any means because the value is quite high. She said she would be harassed and called derogatory terms. The post-hearing submissions assert that her land is worth around AU$650,000 and attach house listings from a real estate website. I note that the listings relate to Rach Gia in Kien Giang province, the applicant’s registered address, rather than the address of her property in [City] in Dong Thap province, but in any event I am willing to accept the land is worth what she claims.

6. I asked the applicant if her daughter had been to look at the land on her recent trip to Vietnam and the applicant confirmed she had and said that the land was in the same condition, the house was still vacant, the land was in a wild state and still the same. As I raised with the applicant, she has been absent from Vietnam since 2017, and country information indicates that the state has the right to reacquire all land, often for what is perceived as inadequate compensation.[3] If the state wanted to acquire her land, it could do so. Yet, on her evidence, the land remains as it was when she left. The applicant claimed in response that for the state to take the land it would need some excuse such as planned redevelopment but that in her case the authority just took her land for a personal reason, such as for relatives to live on, and could take more. This suggestion is hard to reconcile with her claim that [Mr C] was acting on higher orders. I do not accept that, if it were the case that either her neighbour, [Mr C] or authorities more broadly were attempting to acquire or otherwise take more of her land, they would not have done so in the period since 2017.

   [3] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

7. I also have concerns over the applicant’s claims to have faced harassment and attacks, been under surveillance and ultimately left her home in February 2017 and remained in Saigon before travelling to Australia in May 2017.  Firstly, according to information in the delegate’s decision, the applicant was granted an Australian tourist visa on 23 March 2017, yet did not travel to Australia until [May] 2017. When I asked the applicant at the hearing why she had remained in Saigon for a few months, she initially claimed that she was waiting for the grant of her visa. She stated that an acquaintance had advised her to get a tourist visa. She said she did not know where else to go, she had talked about her situation with an acquaintance who advised her to get a tourist visa, so she was just waiting for a grant, and once it arrived she purchased a ticket. It was only when I raised that the visa had been granted in March that she then claimed that she had waited until May to leave because she did not have money for a ticket. The post-hearing submissions reiterate that she did not have enough money to buy a ticket. This explanation is inconsistent with her earlier evidence that she was waiting for a visa. That the applicant remained in Vietnam for around six weeks following the grant of her visa significantly undermines her claims that she was living in hiding and in fear of harm at that time.

8. Secondly, while I take into account that the applicant’s claim to have gone into hiding in Saigon is consistent with her evidence to the delegate that she escaped to a different city, I note that the applicant gave inconsistent evidence within the hearing about her location prior to leaving Vietnam. At the start of the hearing I asked the applicant where she had lived prior to leaving Vietnam for Australia and she identified that the last time she was in Vietnam was in 2016, and she was in [City]. I then asked if that was where she had actually lived and slept when she was staying in Vietnam, and she said that last time she was in Vietnam she had stayed there in 2016 for a few months or close to a year, and then had come here. She made no mention of having been in Saigon for what would, on her claims, be around three months between February and May 2017. When I raised this concern, the applicant’s response did not address the inconsistency in her evidence.   

9. The applicant’s travel history also broadly points against her being a person of any adverse interest to authorities while in Vietnam whether because of her family history, land, religion or any other reason. As discussed with the applicant, DFAT reports that the government can limit the entry and exit of activists and government critics and can also refuse to issue new passports.[4] Despite this, the applicant was issued a new passport in January 2015 and had been allowed to enter and depart Vietnam on many occasions, including travelling to [Country 1] in October 2016, returning to Vietnam in November 2016, departing again for [Country 1] in December 2016 returning to Vietnam in January 2017, and leaving for Australia in May 2017. On her claims, the land issues began around June or July 2016, and she claims to have previously been ‘arrested’ and accused of activities against the government prior to this (see below). I put to her that it was hard to understand why she was able to travel so freely if authorities were interested in her. In response she asserted she was not anti-government but now she had the land they wanted, she would be arrested on return and would become a ‘lunatic’ and be unable to be a nun and help people.  Although not of itself determinative, the applicant’s ability to travel freely in and out of Vietnam on a number of occasions after the claimed land dispute began is another factor that weighs against her claim to have been ‘suppressed’, ‘blacklisted’ or otherwise of interest to authorities at that time.

   [4] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

10. With the post-hearing submissions, the applicant provides an article outlining actions of the communist governments in Vietnam since 1945.[5] This information relates primarily to events prior to 1986 and is not of any obvious relevance to the claims about the 2016 land dispute. The applicant also refers to other cases of the authorities confiscating land, particularly a land dispute in Dong Tam commune culminating in deaths. DFAT describes this dispute as an example of state acquisition of land for low compensation, leading to protests. After protests ongoing for some years, an incident occurred in which three police officers and a civilian were killed leading to sentences of lengthy imprisonment and in some cases, the death penalty, against protesters, as well as prison terms for persons commenting on the issue on social media.[6] The dispute appears to have involved government acquisition of land and protests. The applicant submits a media article relating to the prosecutions over these events which contains commentary from Vietnamese youth that persons who stand up against the government in land disputes will be harmed, and the judiciary is on the side of authorities.[7] The applicant argues such reports are not available in Vietnam due to media controls. Given what DFAT says about the sensitivity of commentary on the case, I accept that is true. The submissions made arguments about corruption, officers protecting each other and toleration of the legal system. They attach an article relating to the conviction of a Vietnamese billionaire sentenced to death for a large fraud, said to show how corrupt the government is. The article refers to what has previously been a toleration for corruption, and a later crackdown. It is argued that if it is possible for a billionaire to be sentenced to death, the applicant cannot stand against the system. While I take into consideration the arguments about the actions of Vietnamese officials, the existence of corruption and flaws in the judicial system, these articles are otherwise of minimal relevance to the applicant’s case.

    [5] Communist Crimes, ‘Communist Dictatorship in Vietnam (1945-present), DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

    [7] BBC News Vietnamese, ‘The Dong Tam case caused a feeling of ‘fear and helplessness’ among Vietnamese youth’, 9 September 2020.

11. Considering all of these concerns together, I have difficulty accepting some of the claimed events.  I accept that the applicant had a dispute with a neighbour and that it was not resolved to her satisfaction. This has resulted in the applicant effectively losing a portion of land that she believed was part of her landholdings. As I have said above, I accept that the applicant has a deep mistrust of the government as a result of her past experiences, and I accept she believes that authorities deliberately did not resolve the issue in her favour. However, I do not accept on the evidence that there was in fact any sort of personal or discriminatory basis to the way the dispute was dealt with, or that the neighbour’s actions in building on the land were somehow initiated or encouraged by [Mr C] or other authorities. I am willing to accept that the land dispute may have necessitated officials coming to her property and in the course of doing so they made remarks about her Buddhist practice and alter (as considered further below). I accept this caused her to feel afraid and to believe she may be harmed. However, I do not accept that there was in fact any sort of verbal or physical altercation with authorities, that she was attacked or under surveillance, or that she ‘escaped’ and remained in Saigon before leaving Vietnam. I do not accept she was ‘blacklisted’ for arguing with [Mr C] or that her lawyer was intimidated or paid off. I do not accept that the applicant was of any adverse interest to authorities at the time she left Vietnam, or that Vietnamese authorities were or have any intention to confiscate her land.  

12. The applicant said that she would continue to stand up and protect her land, even if that was not consistent with Buddhist guidelines. She said she would either die or keep the land. I accept on the documents that the applicant intended to continue to pursue the land dispute through her lawyer after leaving Vietnam. However, I do not accept on the evidence that [Mr C] or other authorities are behind the dispute or have deliberately failed to resolve it in the applicant’s favour. I do not accept it is anything other than a dispute between the applicant and her neighbour. Considering there has been no further loss of land since 2017, I do not accept there is a real chance or risk of her neighbour further encroaching on her land. The submissions assert that the applicant now cannot sell or transfer the land because of the dispute. I do not accept that the inability to sell or transfer the land due to the dispute, however frustrating, is persecution or significant harm. The applicant has not otherwise suffered any harm from her neighbour because of the dispute in the past, and I do not accept that there is any prospect of government authorities harming her in relation to the dispute, as I do not accept that authorities are somehow part of or behind the land issue. Even if the applicant pursues the land issue on return to Vietnam, I am not satisfied on the evidence that this will lead to a real chance or risk of any harm to her, whether from her neighbour, authorities or any other person.

    Religion

13. The applicant claimed that she would be mentally suppressed and degraded because she practices as a Buddhist. She said she would be unable to practice in Vietnam.

14. On the applicant’s evidence, she studied and practiced at the [Country 1] Vietnam Buddhist Church in [Location, Country 1] . She confirmed this was a Vietnamese monastery. She said she follows the Khat Si sect of Buddhism. She said she had also followed this sect in Vietnam prior to going to [Country 1], but that they did not have a big monastery, it was more like following practices within nature. She had, however, been in a monastery which she said was an unnamed monastery on a mountain called [Name], in Ba Ria Vung Tau province. She followed the teachings of Master Ni.

15. While there is officially a right to freedom of religion and belief in Vietnam, in practice religion is regulated. After the Vietnam War and the establishment of the unified Socialist Republic, the state created official religious groups and, since then, further groups have become registered. Religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers.[8] Buddhism is a major religion found throughout Vietnam and is a recognised religion. The formal, government-recognised Buddhist group is the Vietnam Buddhist Sangha which was formed in 1981.[9] The applicant has identified her religions Khat Si, which is also described in the post-hearing submissions as Mendicant Buddhism. Khat Si is a Buddhist tradition founded in South Vietnam in 1944. It is, as the applicant indicated, centred around the practice of begging for alms. Khat Si is one of the nine organisations in the Vietnamese Buddhist Sangha.[10]

    [8] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

    [9] United States Commission on International Religious Freedom, 'Religious Freedom Conditions in Vietnam in 2023', 1 September 2023, 20230913122001; UK Home Office, 'Country policy and information note: ethnic and religious groups, Vietnam', February 2022, 20220224073907.

    [10] Ven. Trần Văn Tuấn, ‘Khất Sĩ Buddhist Tradition of Viet Nam’, Global Scientific Journals, Volume 11 Issue 6, 6 June 2023, >

    The applicant claimed that when she was in Vietnam in 2016, she was not allowed to perform or carry on her Buddhist practices. She claimed she would do recitations and meditation and ask followers to follow her practices, and that the authorities shut her down. There were a few others would come to her home and practice with her. She referred to having built an alter on her property.

16. The applicant has said she was ‘forced’ to join the State Buddhist Association, although on her evidence she did not do so. The applicant claimed that in July or August 2016 [Mr C] would frequently come to her house and say she was not allowed to practice Buddhism at home and that she would need to join a monastery to practice. She claimed they would say degrading things to her and that they did not trust her because she was not a local person. She thought that they wanted to create problems and confiscate her land. She referred to one occasion when he had come while she was praying at home alone. Other times when he came she was doing housework. The applicant claimed she could not join a monastery because she was backlisted and they were not able to take her in. When I asked what she meant by backlisted, she said because of her rebellion she was on the backlist, they controlled her movement and would know wherever she went. She clarified that by rebellion, she meant that she had argued back aggressively and insulted [Mr C] by saying that he was suppressing citizens and not respecting her religion. I have rejected this claim above.

1. The applicant said that in Australia she is not affiliated with any monastery. She said that because the monastery would have to help newcomers a lot and she does not want to bother them, so just follows her sect on her own and tries to cover her own expenses. She practices her religion in the same way she has always done, through meditation, getting in touch with nature and helping others. She said she did similar practice in [Country 1]. In Australia, she meditates with and has followers who follow her practices. She preaches about religion around [Suburb], and describes herself as a missionary. She described this as involving going around with an alms bowl in which she receives offerings and answering questions. In the evening people come to her branch, where she shows them how to meditate and follow the teachings of her sect, although she said she is not doing that at the moment because her place is too small.

2. I have some doubt about the extent of the harassment faced by the applicant in relation to her religion in Vietnam. On the applicant’s evidence she consistently wears the robes of a nun and has always done so when travelling and in Vietnam. She agreed at the hearing that her religion would be obvious to anyone who looks at her. Yet on her claims, the only harassment she experienced specifically relating to her religion while she was in Vietnam during 2016 and 2017 was at the hands of [Mr C]. As I have said above, the applicant’s travel history also points against her being a person of any adverse interest to authorities at that time.

3. As I raised with the applicant, she travelled on many occasions in 2015 and 2016 to [Country 1], and also to Australia and [Country 2], yet continued to return to Vietnam. Although the related stamps in her passport are illegible, on her evidence she also travelled to [Country 3] for a month in 2015. In the submissions, it had been claimed that she did not seek to remain in [Country 1] because she had only acquaintances and disciples in [Country 1] but not blood relatives to rely on, that life in [Country 1] is more difficult than in Vietnam, she can not speak the language. It is also claimed she consulted a lawyer about asylum laws but they said there was no visa for asylum. She also did not have family in [Country 3 or 2] and could not speak proper English.  At the hearing, the applicant referred to her visas expiring and to difficulty in making applications. She said she had a language barrier in [Countries 2, 5 and 4] and could not live there, that as a nun she cannot buy and sell things.

4. I put to her that if she was really afraid of going back to Vietnam she could have tried to seek asylum in other countries, including through registering with UNHCR which operate and conduct refugee status determination in both [Country 1][11] and [Country 2][12].  She claimed that the suppression was less before but she was now worried about her life and they were seriously trying to occupy and seize her land. She referred to her claims that she had argued with [Mr C] and fought back and that people had been outside her house and had wanted to arrest her.

   [11] 1]/.

   [12] 2].

5. I have not accepted the altercation that she claims to have occurred or that [Mr C] had the adverse interest in her that she claims. As set out above, in the context of officials having come to her home relating to the land dispute, I am willing to accept that [Mr C] or others may have questioned her practice of Buddhism at home and that the applicant perceived this as threatening. However, the applicant’s repeated return to Vietnam, particularly in 2016 and early 2017, casts doubt on her claims that she was experiencing the restrictions and harassment that she claims. I do not accept she was being frequently harassed or forced to join a formal practice.   

6. I have considered whether the applicant may nonetheless face harm because of her religious practice in the future. The applicant claimed that although there are many temples or monasteries of her sect in Vietnam, they are regulated by authorities and do not follow the original ideal of the sect. She described her sect as mostly meditation, trying to merge with nature. The applicant claimed that she would not join a registered Buddhist group because registered monasteries follow what is allowed by government policies and from her own background and the experiences of her parents, she does not want to practice according to what is allowed by government policy. When I asked her what it was that she could not do if she were with a registered Buddhist organisation, she claimed it was not following the religion of the Buddha or ideology and was not true Buddhism, and that she would suffer in the next life if she did that. She said if she joined a registered group she would be required to follow their ways and if she refused to do that and instead did her own practice, she would not be allowed to stay in the monastery. However, she did not identify any specific element of her practice that she would be unable to do in a registered group.

7. The post-hearing submissions assert that the applicant wants to have her own belief and practice it independently and that the State Association is controlled by the government and affected by its policies. The submissions state that some government regulated-temples are just opened to attract money from followers. They attach two articles which refer to authorities having ordered a prominent pagoda in northern Vietnam to stop highly profitable ‘bad karma-removing’ ceremonies, said by authorities to be a scam.[13] The articles do not specify the particular sect of Buddhism to which that pagoda belongs, and it seems that while the pagoda was registered with authorities, the activity in question was not. The applicant has claimed both at the hearing and in submissions that the practice of carrying an alms bowl on the street, which she says is a central part of her religion as it represents the image of the ancient Buddha, is also banned in Vietnam. The articles she attaches refer to a crackdown on taking money to remove ‘bad karma’ but is silent as to whether or not other Buddhist religious practices such as begging for alms are permitted. I note that the applicant referred at the hearing to nonetheless asking for offerings from Buddhist followers in Saigon.

   [13] Bangkok Post, ‘Vietnam targets cash-for-karma monks’, 23 March 2019; UCA News, ‘Monks in Vietnam ordered to stop money-making rituals’.

8. As discussed with the applicant, from January 2018, the Law on Belief and Religion requires religious groups to register with the Government, and religious activities, including routine worship, festivals or conferences, to be registered. Activities can be disallowed on national security or morality grounds.[14]  According to DFAT, there is a key distinction is between registered and unregistered faith groups. Registered groups worship with limited or no Government interference; those that are not registered may be pressured by Government to join the registered group. Among unregistered groups a further distinction can be made between those groups that have some (perceived) political or foreign agenda and those that do not. Experiences differ between religions and areas, depending on local authorities. DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, although the situation can differ from place to place.[15]

   [14] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

   [15] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

9. According to the US Commission on International Religious Freedom, the 2018 law has been used to crackdown on independent religious groups and attempt to force them to embrace state-sponsored alternatives. In this regard, the independent United Buddhist Church of Vietnam (UBCV) reported that its followers and leaders face consistent pressure from state officials to join the Vietnamese Buddhist Sangha through measures that include harassing followers, preventing access to UBCV houses of worship, and sealing monks inside temples. Many independent Buddhist communities have reportedly maintained their independence from state sponsored groups because of such political pressure. There are reports of local authorities harassing and persecuting unregistered religious communities, particularly among minority groups. Targets are said to include Hoa Hao Buddhists and Unified Buddhists, which are not among the registered religious groups.[16]

   [16] United States Commission on International Religious Freedom, 'Religious Freedom Conditions in Vietnam in 2023', 1 September 2023, 20230913122001

10. DFAT states that Buddhist groups registered with the government experience few restrictions. High-profile Buddhist exiles and arrestees are typically also involved in advocating political change, such as for religious freedom. DFAT assesses that Buddhists who belong to registered organisations and are not politically active face a low risk of official discrimination. Those engaged in independent sects or unregistered Buddhist organisations face a moderate risk of official discrimination, particularly if they also advocate for political change, including for religious freedom.[17]

    [17] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

11. I put to the applicant that her religious tradition is one of the recognised groups in Vietnam and part of the Vietnamese Buddhist Sangha. In response, the applicant reiterated that she had followed Buddhism in [Country 1] since 2003 and is not a member of the Vietnamese Buddhist Sangha. She said that she followed the rules in [Country 1], not Vietnam. I also put to the applicant that even outside of registered groups there are estimated to be potentially tens of millions of others who believe in and observe Buddhist practices without formal participation in a registered Buddhist religious group. It seems from the information that the government’s main focus is on unregistered religious organisations who also have some sort of real or perceived political agenda or consist of ethnic minorities.

12. The applicant’s evidence is that she is a follower of the Khat Si or Mendicant sect but was not aligned with any particular group or monastery. She has maintained that she would not join a government-registered group because of her views about the government. I am willing to accept that is the case.

13. DFAT and the other reports cited do not specifically address the situation for persons such as the applicant who are practitioners of a registered Buddhist sect but who practice at home (including with several others) rather than in a registered religious location. However, it does suggest that the focus of government appears to be on larger organised but unregistered groups and those linked to political activities or ethnic minorities. For reasons set out above and below, I do not accept that the applicant has a political profile, is blacklisted or is otherwise a person of interest to the government. She has not claimed to have ever engaged in political advocacy or activities in Vietnam, nor to intend to do so in the future. I do not accept that her pursuit of a land claim against a neighbour would lead to such a profile. On her evidence, while living in Vietnam between 2016 and 2017 she practiced her religion at home including at times leading and teaching others, and approached other Buddhists for alms. She says she has practiced in a similar way in Australia. Her claims about the harassment she experienced relating to the practice of her religion in Vietnam were tied to the land claims and I have not accepted that those events took place as claimed. Considering the evidence as a whole along with the country information, I consider it is possible the applicant may face occasional harassment in the form of being told to join a formal Buddhist group. However, even taking into account the applicant’s vulnerabilities such as her age and her pre-existing fear of Vietnamese authorities, I am not satisfied that this would amount to serious or significant harm. I am not satisfied that there is otherwise a real chance or risk of the applicant’s activities attracting adverse attention to the extent that she would experience serious or significant harm on account of her religion.

    Applicant’s profile, including past ‘arrest’, blacklisting, anti-government views and activity

14. The applicant claimed at the interview with the delegate that in [Year] she moved away from her family home. Authorities wanted to remove her name from the family Hộ khẩu, so she returned to her home and protested. She said she was put on a blacklist and the authorities caused her difficulties whenever possible. The applicant referred a number of times during the hearing to her father’s role as village chief under the former regime, and to the events experienced by her family including arrest and detention of some family members and the confiscation of their land. The applicant’s daughter claimed that she had also experienced difficulties and obstacles with paperwork, which she believes was a remnant of the problems experienced by the past generation.

15. As I discussed with the applicant, DFAT assesses that if there is any discrimination against the relatives of people involved in the Vietnam war, it is at a low level and DFAT is not aware of a strong pattern of such behaviour.[18] Although the applicant was not claiming her family was involved in the war, her father was connected to the former regime and she claims they were harmed for this reason in the past. While I accept that the applicant maintains this belief, I am not satisfied on the evidence that the applicant is of ongoing interest to authorities because of her father’s previous role or her family history.

    [18] DFAT, ‘Country Information Report Vietnam’, 11 January 2022.

16. At a number of points in the hearing, the applicant claimed to have been arrested twice. She claimed she had been blacklisted because she had been to many countries and had been affiliated with many groups and societies. At one point she claimed that every time she returned from [Country 1] she would be held in custody and questioned for hours. She later claimed she had been questioned and accused many times of being involved in activities overseas against the government including when her mother was alive.

17. I attempted to elicit further detail about these claims from the applicant on several occasions. Ultimately it seemed that the applicant was asserting that on one occasion in 2008 she was taken for questioning at the airport after arriving in Vietnam. She referred to authorities banging on the table and asking her why she went to [Country 1] and what activities she did. On another occasion when she was in Saigon in 2010 she was taken to a local office for a number of hours, asked for documentation and questioned about her activities overseas. The applicant confirmed she was not questioned at the airport on any other occasion. I accept these two incidents occurred but do not accept she was questioned or detained at any other time.

18. I have rejected that the applicant was ‘backlisted’ for arguing with [Mr C]. The applicant’s other references to being ‘blacklisted’ appear to refer to something that occurred around 2003. The applicant had claimed in her statement to the delegate that in 2012 her mother had believed her to be at risk of becoming stateless if she did not return to Vietnam. However, it does not appear that her name ultimately was removed from the Hộ khẩu, that she lost her citizenship or that she faced problems for these reasons while living in Vietnam prior to coming to Australia. As I have said above, the applicant entered and exited Vietnam many times after these claimed incidents. I asked the applicant whether she had been arrested, detained, or questioned in 2016 or 2017 when living in Vietnam. In response she said no. I am not satisfied that any of the past interactions with authorities, or her frequent travel or activities in [Country 1] led to any ongoing interest in the applicant.

19. At the end of the hearing, the applicant raised a claim that she was perceived as anti government because she had been living in [Country 1] where there are anti-communist organisations. She claimed there were photographs of her involvement with those organisations and that she had also been present at community activities in Australia and [Country 3]. She said she had taken part in anti-communist activities involved by community groups in Australia such as the Vietnamese community in [Suburb]. When I asked what anti-communist activities she had take part in, she referred to having been suppressed for years, and the treatment of her brothers, and said so in Australia she participates in and supports whatever activities the community groups organise. When I asked why she had not raised that involvement earlier, she claimed that she had previously said that not only in Australia but elsewhere, she had participated when the community organised any anti-communist activity. She indicated she had photographs of this and, when I asked why these had not been submitted prior to the hearing, said she had given them to her representative many photographs showing her involvement in activity together with other Buddhist monks and nuns. I note that the only such photographs given prior to the hearing related to her assistance to an injured monk. When I asked what specific anti communist activity she had done, she claimed again to have shown up at the activities organised and said there were many photographs on [Social media]. I put to the applicant my concern that she had not raised this claim until this late stage of the hearing, but indicated I would allow time for her to submit further evidence.

20. The applicant’s representative made oral arguments that the applicant had not necessarily set out to engage in activities against the government, but was just living her life and in doing so had attended to the Vietnamese community in Australia, appreciated the independence here to meet with like-minded people, and that her picture had been taken at activities and posted on the internet. He stated that she was on the blacklist, not as an ongoing activist but as a threat to government and somebody the government would keep an eye on in case she later became a threat.

21. In the post-hearing submissions, it is said that the applicant participated in events to assist Vietnamese migrants and that her image appeared in the media. It is said the applicant believes the Vietnamese government may be watching to see what she did overseas and may have evidence of her participating in overseas activities. The submissions state that the applicant has photographs with leaders of anti-government organisations in Australia at events that she attended to teach people about Buddhism. She believes she is on a blacklist because of this. The submissions identify this organisation as the [Organisation], described as home to refugees who flee Vietnam.  Her intention was said to be to help the community, not act against the Vietnamese government. I accept that to be the case. The submissions attach various photographs of the applicant at events which I accept are of the [Organisation]. It is said that the photos ‘might’ be uploaded to social media. Also attached is a change.org petition which relates to two leaders of the [Organisation] (one of whom is said to have been in the photographs with the applicant) said to have been removed from office despite being democratically elected. It refers to the Vietnamese diaspora having fled the communist regime.

22. While I accept this group is affiliated with Vietnamese refugees and migrants, no information has otherwise been provided about the claimed anti-government nature or activities of the [Organisation], its perception by Vietnamese authorities, or that the applicant’s image has in fact been published. I do not accept on the evidence that this group or her engagement with it is of a nature that would be of interest to Vietnamese authorities, even in the unlikely event that her attendance at [Organisation] events and photographs with [Organisation] leaders were to come to their attention.

1. I have considered the applicant’s profile, including her family history, her early experiences in Vietnam, having lived outside of the country for significant periods, engaged in frequent travel and having been questioned by authorities about her activities in 2008 and 2010. I also consider her engagement in the dispute over land, including the possibility that she will continue to pursue this in the future and which may bring her into contact with government officials. I further take into account that I have accepted that she may on occasion face some harassment over her religious practice. However, even considering these matters as a whole, I am not satisfied that the applicant would be perceived as a person of any interest to Vietnamese authorities such that there would be a real chance of her being seriously harmed in the reasonably foreseeable future, nor a real risk of her suffering significant harm.

   Applicant’s circumstances in Vietnam, ties to Australia and character

2. The post-hearing submissions refer to the applicant’s [age] and the life expectancy for Vietnamese women, and state that the applicant does not have much time left to live. It is said that if she is forced to go back to Vietnam she would have no home to return to, no way to make money to live on a day to day basis, no means to help other people and her life expectancy would be reduced. The applicant has previously lived and subsisted in Vietnam in 2016 and 2017 and on her evidence her land is still there as it was when she left. I am not satisfied that her circumstances would be as the submission claims. Further, and in any event, I am not satisfied that any harm of this nature would be persecution involving systematic or discriminatory conduct required by s 5J(4)(c). Nor am I satisfied that it would be arbitrary deprivation of life or the death penalty, or that it would be intentionally inflicted as required by the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied that there is a real chance of the applicant being persecuted nor a real risk of her suffering significant harm in this regard.

3. The applicant spoke at the hearing about the support she provides to her daughter and grandchildren, along with a Buddhist master who previously gave her a lot of help and is unwell and requires her assistance. She referred to the work she has done in the community and her desire to stay here to help.

4. An email sent to the Tribunal on 20 March 2024 attaches a video and photographs which show paramedics assisting an injured man who appears to be a Buddhist monk, the applicant with the man in hospital, and a number of invoices and a payment receipt for sizeable medical fees for an overseas Medicare ineligible patient. The email indicates that one of the monks was injured and taken to hospital and the applicant voluntarily became his support. It submits that she has a ‘golden heart’ and that it is in Australia’s best interest to allow her to reside in Australia to help the community. The 18 March 2024 submissions refer to the applicant’s work for the community and her character. They argue that the Tribunal should consider the best interests of the child in accordance with the Convention on the Rights of the Child in respect of her grandchildren.

5. The 19 April 2024 submissions refer to the applicant’s history in Vietnam, her having assisted Vietnamese migrants in Australia and her actions in praying for everyone, building temples, helping unfortunate children and the homeless. The submissions refer to and attach a newspaper article relating to Prime Minister Albanese indicating in the media that certain persons would be given permanent residency or citizenship on the basis of their actions during attacks that took place at Bondi Junction. It is argued that if the applicant’s actions had been recorded and posted, she would have been offered citizenship.

6. The submissions and email do not explain how these matters might be relevant to consideration of whether there is a real chance or risk of harm to the applicant in Vietnam. The Tribunal is limited to considering the criteria for a protection visa rather than broader issues of character and community contribution, compassionate circumstances or humanitarian concerns. The best interests of her grandchildren, who are not visa applicants, are not relevant to the criteria for this particular visa.

7. I accept that returning to Vietnam, away from her daughter and grandchildren, siblings who reside in Australia and fellow Buddhists would be difficult for the applicant. However, as much as I sympathise with her, the anguish that she would experience from this separation does not involve systematic and discriminatory conduct and is not for one of the reasons in s 5J(1)(a). Nor does harm of this nature, arising from the act of removing the applicant to Vietnam, fall within the criteria in s 36(2)(aa).[19] While I accept the applicant has engaged in activities for the community and that there are compassionate circumstances, these do not fall within the criteria for the visa.

   [19] SZRSN v MIAC [2013] FCA 751; GLD18 v MHA [2020] FCAFC 2.

8. While compelling, the issues raised by the applicant do not fall within the criteria for the grant of the visa. However, it is open to the applicant to make a request to the Minister for intervention based on these matters.  

   Conclusion

9. Considering the applicant’s claims as a whole, I am not satisfied there is a real chance of her being persecuted in the reasonably foreseeable future. The applicant does not have a well-founded fear of persecution within the meaning of s 5J and is not a refugee within the meaning of s 5H(1).

100.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Considering her claims as a whole, the Tribunal is not satisfied that there are 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 the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

103.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Patricia Tyson
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…