1806391 (Refugee)
[2024] AATA 2713
•4 April 2024
1806391 (Refugee) [2024] AATA 2713 (4 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Hoang (MARN: 2015332)
CASE NUMBERS: 1806391; 2011912; 2201324
COUNTRY OF REFERENCE: Vietnam
MEMBER:Gregory Hanson
DATE:4 April 2024
PLACE OF DECISION: Melbourne
DECISION 1806391: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
DECISION 2011912: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
DECISION 2201324: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
Statement made on 04 April 2024 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – Viet Tan member – participation in protests – social media activities – Catholic religion – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is a combined application for review of decisions made by delegates of the Minister for Home Affairs to refuse to grant [Applicant 1], [Applicant 2]and [Applicant 3]a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Applicant 1, Applicant 2 and Applicant 3 (the applicants) each claim to be citizens of the Socialist Republic of Viet Nam (Vietnam). Applicant 1 and Applicant 2 lodged separate applications for a protection visa on 7 November 2016 and 5 October 2018. Applicant 3 was born in Australia [in] 2019 and is deemed to have made a combined application for a protection visa with Applicant 2 [by] operation of r 2.08(1) in Part 2 of the Migration Regulations 1994 (Cth) (the Regulations).
Delegates refused to grant Applicant 1, Applicant 2 and Applicant 3 a protection visa on 16 February 2018, 15 July 2020 and 13 January 2022 respectively. Those decisions were made on the basis that the delegates were not satisfied the applicants met the refugee criteria in s 36(2)(a) of the Act, the complementary protection criteria in s 36(2)(aa), or family unit criteria in s 36(2).
Applicant 1, Applicant 2 and Applicant 3 applied to the Administrative Appeals Tribunal (the Tribunal) for merits review of the delegates’ decisions in respect of them on 9 March 2018, 21 July 2020 and 2 February 2022 respectively.
The applicants were represented by legal practitioner Ms Kate Khanh Hoang of Oxford Law Group (Ms Hoang).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Before the delegate
Applicant 1
The information provided by Applicant 1 to the delegate in support of his claims to engage Australia’s protection obligations was limited to that contained in the protection visa application form lodged with the Department on 7 November 2016. Relevantly, in that form it is recorded that Applicant 1 claimed as follows, among other things:
a.He wanted to leave Vietnam because he and his family don't like the current Vietnamese government. He applied for a student visa for Australia. After living in Australia, he appreciated more of the democratic beliefs and the human rights that every Australia citizen here acquires.
b.When he was in Vietnam, he could see the injustice and the authority of the Government officials made decision to take away their places of prayers. The Government confiscated homes for their prayers and developed them into tourist places. Their voice and opinions as Catholic believers are supressed in Vietnam.
c.He often participated in protests against the atrocity of the Communist government. On many occasions, amongst other students and professional workers, he was detained for 5 weeks after participating in the protest. He was told by the police who arrested him that he would be summoned one day to the court for his participation in protesting against the government.
The delegate refused the visa application without providing Applicant 1 with an opportunity to attend a protection visa interview or otherwise inviting further information from him.
Applicant 2
In her protection visa application lodged on 5 October 2018, Applicant 2 claimed as follows:
a.She left Vietnam to study abroad in Australia because Australia is a well known democratic country that respects freedom of speech, expression and religious beliefs. It was also at the request of her parents because they feared that the religious activities and demonstrations she was participating in with her catholic friends would get her into trouble with the Vietnamese Government.
b.She believes that if she is returned to Vietnam, she will be arrested and detained. This is due to her religious belief and her desire for a reformed and democratic Vietnam. She have always held these values because she was raised in a Catholic household, where she was taught about the need for freedom of expression and religion because there was always religious repression by the Vietnamese Government towards the catholic community.
c.Her values grew stronger after living in Australia because she got to witness for herself the stark differences between Australia and Vietnam in their rule of law and basic human rights.
d.In Australia, she has continued to exercise her beliefs and values by participating in events and gatherings held by the local Catholic community. She could express herself freely without the fear of getting arrested and locked up without any justification.
e.She strongly follows the ideals of Viet Tan (Vietnamese Reform Revolutionary Party) in their aims to create a democratic and reformed Vietnam. They strived to do so through peaceful and political means, but the Vietnamese Government considers them a threat to their control over the country.
f.She fears that if she continues to practice her religion and express her desire for a reformed Vietnam while in that country, she will be arrested, detained and treated harshly.
By correspondence dated 13 March 2020, Applicant 2’s representative provided further material in support of Applicant 2’s claims to the Department and claimed that Applicant 1 and Applicant 2 were members of Viet Tan, and that they fear persecution on return to Vietnam for reason of their membership of this group, and their political activism profiles. That correspondence enclosed the following further material:
a.Evidence of Applicant 2’s public profile of her activities, including 11 photographs and copies of online publications, including those by media outlets, websites and posts on social media;
b.Evidence of Applicant 1’s public profile of his activities, including 11 photographs and copies of online publications, including those by media outlets, websites and posts on social media; and
c.Evidence of Applicant 1’s [social media] activities, including 204 photographs “as of 15/10/2019”.
The Tribunal notes this evidence consists of a substantial number copies of documents purporting to be publicly available media articles (including [deleted]), website publications, social media posts and photographs, depicting and/or referring to Applicant 1 and Applicant 2 by name in the context of them being openly critical of the Vietnam government. The Tribunal also notes that this material includes content referring to, or otherwise inferring to, Applicant 1 and Applicant 2 being active members of Việt Nam Canh tân Cách mạng Đảng (‘Vietnam Reform Revolutionary Party’), also known as Viet Tan [Việt Tân], a US-based pro-democracy group.[1]
Applicant 3
[1] 144 'Vietnam declares US-based activist group is a terrorist organization', Reuters, 08 October 2016, CX6A26A6E10990; 'OSAC Country Security Report Vietnam', Overseas Security Advisory Council (OSAC), 12 July 2022, p. 3, 20220927150411.
As above, Applicant 3’s protection visa application was taken to have been made by operation of law[2] [in] 2019. Other than an uncertified copy of his Australian birth certificate, no information was provided to the Department in support of his claims to meet the criteria in s 36(2) of the Act.
[2] r 2.08(1), Part 2, Schedule 2 to the Migration Regulations 1994 (Cth).
Before the Tribunal
A copy of the protection visa decision record in respect of the decision of the delegate to refuse their protection visa application was provided to the Tribunal by Applicant 2 on 21 July 2020, by Applicant 1 on 15 October 2020, and on behalf of Applicant 3 on 2 February 2022.
On 18 October 2023, the Tribunal sent email correspondence to Applicant 1 inviting them to complete a ‘Pre-hearing information form’ seeking further information about, among things, their protection claims, and requesting they respond within 7 days. On 29 October 2023, Ms Hoang sent email correspondence to the Tribunal enclosing a copy of the Pre-hearing information form completed on behalf of Applicant 1. This form lists Applicant 2 and Applicant 3 as his immediate family members and provided the following information in relation to his claims for protection:
Applicant is a member Of Viet Tan, Viet Tân is being called an anti-national by the Vietnamese communist Party of Viet Nam
Applicant is an online blogger, [a member] of [social media group] in Australia.
Applicant often participate in protest, and speak up about the unfair actions of the communist party of Vietnam.
That make applicant feel unsafe when returning to Viet Nam
By email correspondence dated 19 February 2024, the Tribunal wrote to Applicant 1 courtesy of Ms Hoang, to advise that it was unable to make a favourable decision on material before it and enclosed an invitation to appear before the Tribunal at a hearing on 26 March 2024 at 1:30PM. That correspondence enclosed a ‘Response to Hearing Invitation form’ to complete and return to the Tribunal.
By email correspondence dated 19 February 2024, the Tribunal wrote to Applicant 2 courtesy of Ms Hoang, to advise that it was unable to make a favourable decision on material before it and enclosed an invitation to appear before the Tribunal at a hearing on 27 March 2024 at 12:30PM. That correspondence enclosed a ‘Response to Hearing Invitation form’ to complete and return to the Tribunal.
By email correspondence dated 21 February 2024, the Tribunal wrote to Applicant 3 courtesy of Ms Hoang, to advise that it was unable to make a favourable decision on material before it and enclosed an invitation to appear before the Tribunal at a hearing on 27 March 2024 at 12:30PM. That correspondence enclosed a ‘Response to Hearing Invitation form’ to complete and return to the Tribunal.
On 8 March 2024, Ms Hoang provided a completed Response to hearing invitation form for Applicant 2 and Applicant 3. On 25 March 2024, Ms Hoang provided a completed copy of that form for Applicant 1. Those forms contained a request that the Tribunal take oral evidence at the hearing from [Mr A], Viet Tan member. Requests were subsequently made on their behalf that they each attend the other’s hearing as a support person.
On 20 March 2024, Ms Hoang submitted an ‘evidence booklet’ in support of Applicant 1 and Applicant 2’s claims to engage Australia’s protection obligations (Applicant 1 Evidence Booklet and Applicant 2 Evidence Booklet respectively). On 22 March 2024, Ms Hoang provided to the Tribunal written submissions dated 20 March 2024 (Pre-hearing submissions) and copies of statutory declarations by Applicant 1 (Applicant 1 statement) and Applicant 2 (Applicant 2 statement) both sworn on 21 March 2024.
The Applicant 1 Evidence Booklet contains approximately 83 pages of material including the following:
a.Copies of photographs purporting to depict Applicant 1 and Applicant 2 at various Viet Tan related events in different parts of Australia (including Melbourne, Sydney, Adelaide, Gold Coast and Canberra), between 2018 and 2024, including of them participating in:
i.public protests against the Vietnams government relating to different issues;
ii.fundraising activities for Viet Tan; and
iii.national Viet Tan conferences;
iv.other related community events.
b.Copies of screenshots of video content purporting to depict Applicant 1 making public statements on social media critical of the Vietnamese government.
c.Other content including that purporting to be copies of content published on [deleted], the Viet Tan official website and the Viet Tan Australian chapter [social media] page, referring to and depicting Applicant 1 and Applicant 2 being critical of the Vietnamese government and supporting Viet Tan.
d.Copies of photographs purporting to depict Applicant 1 engaging in conduct related to his membership as a Viet Tan member (including ceremonies).
e.Copies of screenshots purporting to be of [social media] posts made by Applicant 1 in his capacity as [a member] of the Australian Viet Tan chapter [social media] Page ‘Thân Hữu Việt Tân Úc Châu’.
f.Copies of screenshots purporting to be of [social media] posts made by Applicant 1 between 2018 and 2023 using his personal [social media] profile, relating to Viet Tan and issues critical of the Vietnamese government more generally.
g.A letter addressed to the Tribunal purporting to have been written by [Mr B], representative of the Viet Tan Australian Chapter, [in] May 2023, in which the author attests to Applicant 1 and Applicant 2’s membership and involvement with Viet Tan, their relationship, and the risk of harm they would face if they returned to Vietnam.
h.A copy of a content purporting to be from a Vietnamese government webpage listing [Mr B] (author of the above-referred letter) as a member of a terrorist organisation and listing his position in the organisation as ‘Member of the Central Committee “Viet Tan”’.
i.Copies of social media content purporting to relate to Applicant 1’s [relative] who is a Catholic priest in Vietnam, depicting the [relative] at various public events in his capacity as a Catholic priest.
j.Copies of identity documents purporting to have been issued to the above-referred [relative] who is a Catholic priest in Vietnam.
k.Copies of photographs purporting to depict Applicant 1’s [relative] attending public protest events in Vietnam in his capacity as a Catholic priest.
l.Copies of content published on the Viet Tan official website purporting to depict Applicant 1’s [relative] in Vietnam attending public protests in his capacity as a Catholic priest.
m.A copy of a letter addressed to ‘Whom it May Concern’ from [named Reverend] of [a] Catholic Church in [Victoria], confirming Applicant 1 and Applicant 2: participated in the Seminar Course preparing for marriage at his parish in 2018; attend Sunday mass at his church “from time to time”; and are honest people.
In the Applicant 1 statement he claims as follows, among other things (errors in original):
[…]
3. Upon my return to Vietnam, I believe I will be detained, assaulted, tortured, and imprisoned for a long time for the following reasons:
a. I grew up in a Catholic family who actively involved environmental and Catholic activism, which made me a subject of discrimination by the Vietnamese Government
b. I am an active member of Viet Tan and I believed that the Communist Vietnamese Government is aware of my affiliation with this organization. This is due to the government's frequent monitoring of Viet Tan members and their systematic discrimination against those who oppose the government.
c. I actively engage as a social media activist, utilizing my platform like [social media] to openly voice my political opinions against the Communist Vietnamese government.
d. I also involved in many political agendas and protests in Australia to condemn the Communist Vietnamese Government and support human rights and democracy issues for Vietnam. These events are highly sensitive to the Vietnamese government.
e. I am married to [Applicant 2] who is also a political activist. We did many political related activities together in Australia.
f. If I am sent back to Vietnam, my children's safety will be at risk. Given that our children will be raised as a Catholic and is the offspring of two human rights activists seeking refuge in Australia and both parents are Viet Tan members.
g. My children’s registration for birth certificate will be refused and they will not be able to get a household book. Without this registration, our child will be deprived of fundamental rights, including access to healthcare and education.
Background Information:
4. I was born on [date] in Ha Tinh, Vietnam.
5. I am a citizen of Vietnam. I do not have the right of citizenship or a right to reside in any other country.
6. I am a Catholic and of Kinh ethnicity.
Activities in Vietnam:
Family background
7. I have a total of [number] siblings including myself. [Number] siblings are currently in Vietnam.
8. One of my [relatives] is a Catholic priest since 2001.
9. One of my other [relatives] is studying Catholicism to be a priest.
10. My father was working as a senior member of the local church committees.
11. My mother passed away in 2016
12. I started bible study since I was [age]. As I grew up, I started to join the church choir and helped with masses. My roles gradually became more significant as I was becoming an adult.
13. Our family are keen Catholics and devote many of our time in church services. I was growing up in a Catholic environment and therefore I am also heavily involved in church activities and bible study.
14. Due to the family background, I have a chance to interact and know many important Catholic leaders in the district. My [relative] also has a great vision on freedom and democracy. All the church leaders and priests often have meeting at my house. Many of those meetings were about environmental issues and oppression of Catholic in the region.
15. During my time at [University] from [year range], I regularly attended [Church] and participated in Mass on Sundays. I was a supporter in many candle light vigil organised by the church. The vigils are usually to pray for issues that need more blessing such as abortion, the denial of human rights, the confiscation of Church property, and the arrest of [Father A].
16. I am a member of the church youth group. During our bible study session, each would take turn to stand up and talk about Jesus, witness life blessing, and also speak out any social injustice and offer our views on these issues.
17. This kind of informal group gathering was not encouraged by the local government. Many students were arrested for holding those informal bible study group. The arrests triggered protest to demand a release of those who arrested. As a result, more people were arrested.
18. Our group also organised to raise awareness for the confiscation of Church land among friends and students at colleges [in] the vicinity of my university. Our activities were frequent in 2011, occurring weekly throughout October and November.
19. In 2011 – 2012, people of my group were arrested. Following the nationwide arrests of students by Vietnamese authorities in 2012, my [relative] advised me that it might be safer to leave Vietnam due to my active involvement in the group and meetings, which could potentially lead to an arrest by the Vietnamese government.
20. Fortunately, I was not arrested, but I was very concerned for my safety as I am also a member of the group. I was trying to find a way to escape Vietnam.
21. I have contacted travel agency and seeking advice on how to leave Vietnam. I am aware that they would apply for a visa, but I was not aware that they would give me a student visa until I was granted a student visa. I managed to leave Vietnam in 2013.
22. My family is very active in human rights issue. My family have organised protest for the Formosa Ha Tinh Steel Corp toxic spill in April 2016. This toxic spill heavily damaged the water quality and the livelihood of thousands of fishermen. My father and one of my [relatives] were among the protesters. My father helped to publicise the protest in his local area. My family are always under the local’s authority attention due to our roles within the church and our activities.
Activities in Australia:
23. I arrived in Australia in 2013. My visa expiry was until 2015. I could not study because I do not have sufficient English to understand the teachers. My intention was only to run away from Vietnam, I was not prepared myself to study in Australia. I started to drop out of study, and my visa was cancelled in 2014.
Viet Tan Member
24. I slowly know more Vietnamese friends and they introduced me to the Vietnamese community. Here, I found Viet Tan, a pro-democracy political party that aims to promote human rights and democracy for Vietnam and the people through peaceful means. I realised I had shared similar values to Viet Tan’s objective. I realized that I would like to join this party.
25. I was informed that due to Viet Tan’s highly sensitive political agendas, members are only by invitation and required an investigation period to ensure potential members have genuine intentions and similar values as the party.
26. I continued to support Viet Tan through participating and attending in all political and fundraising activities because we share the same belief and goal that is, the importance of having access to democracy and human rights for the Vietnamese people.
27. On 12 August 2018, I attended the propaganda activity against the Vietnamese proposed land lease to Chinese government and the new Cyber Security Law in Melbourne. On 9 December 2018, I attended the protest campaign celebrating 70th Anniversary of International Human Rights Day Sunshine, Victoria.
28. After 6 months of active participation, training, and participation in many demonstrations. I officially become a member of Viet Nam Reform Party (Viet Tan) [in] December 2019 in Melbourne.
29. My photo was published on various occasions on Viet Tan’s official [social media] page. Viet Tan’s [social media] page is heavily monitored and censored by the Vietnamese government as the organisation is labelled terrorist. I think the government have seen my photo and know that I am a Viet Tan’s member.
30. Since becoming a member, I was given various roles in the organisation. One of my tasks is to recruit members from Vietnam and engage in propaganda activities.
31. I have used the connections from my [relative], who is also a Catholic priest to reach out to local church goers and other leaders to them the true story of human rights issues in Vietnam as many of these information is censored in Vietnam.
32. I slowly introduce Viet Tan and encourage Vietnamese people to learn more about Viet Tan and explained that the party only peacefully fight for democracy unlike what the Vietnamese government are promoting against Viet Tan.
Social Media Political Activities
33. I am [a member] of a [social media] page called [social media group] in Australia. [Deleted]. They have many views worldwide.
34. I shared my political opinions as well as my opposition towards the Vietnamese Government wrong doings. There are many activities photo and sharing materials including my identity on this page as well as Viet Tan official page. I would be arrested in Vietnam for publicly appear to be a member of Viet Tan and appear on [social media] page.
35. I will continue to share information and awareness on the political conditions in Vietnam and particularly, the Communist Government wrong doings because, I believe all humans should have the right to freedom of speech and expression. It is my human nature to do the right thing and what I believe in.
36. I also shared and commented on Viet Tan’s page. I believe the Vietnamese government closely censors Viet Tan’s page to identify human right activists and Viet Tan’s supporters for persecution.
37. Vietnam witnessed a significant crackdown on social media bloggers who discussed political issues and criticized the government between 2020 and 2022. This period coincided with the Covid-19 pandemic, during which people were compelled to stay home, leading to a notable surge in online activities. Unfortunately, many online activists were arrested and subsequently imprisoned for 5 to 10 years simply for peacefully expressing their opinions. I would also be arrested for my activities on [social media].
Fears of Returning to Vietnam
38. I have witnessed the disturbance the Government caused to my family as a typical Catholic family. For all of my activities in Vietnam and in Australia, I believe that the Government is well aware of my involvement in human rights activities. My involvement and political opinions are widely shared, these activities regarded to threaten the Government’s power and authority. They will have zero tolerance towards any of my actions. Illustration by the fact that many Vietnamese bloggers have been arrested and tortured by the Vietnamese authorities for their political opinions on [social media].
[…]
In that statement Applicant 1 also sought to make the following corrections to the information advanced before the delegate (errors in original):
Clarification of previous claims
52.1 did not know why the visa application said "I was detained for 5 weeks after participating in the protest. I was told by the arrested Police I would be summoned one day to the court for my participation in the protest against the government." This is incorrect.
53.1 have told the previous representative about my family story in Vietnam. It is true that my [relative] (the Catholic priest) has organised various protests in Vietnam, and I have participated in environmental and religious campaign in Vietnam. However, I have never been detained for arrested in Vietnam.
54.1 did not have an interview at the Department before the decision were made. Therefore, I was not aware of the application inaccuracy and did not have a chance to response further.
[…]
The Applicant 2 Evidence Booklet contains approximately 72 pages of material including the following:
a.Copies of photographs purporting to depict Applicant 2 engaging in conduct related to her membership as a Viet Tan member (including her ‘acceding ceremony’.
b.Copies of photographs purporting to depict Applicant 1 and Applicant 2 at various Viet Tan related events in different parts of Australia (including Melbourne, Sydney, Adelaide, Gold Coast and Canberra), between 2018 and 2024, including of them participating in:
i.public protests against the Vietnams government relating to different issues;
ii.fundraising activities for Viet Tan;
iii.national Viet Tan conferences; and
iv.other related community events.
c.Copies of numerous screenshots purporting to be of [social media] posts made by Applicant 2 between 2018 and 2023 relating to matters critical of the Vietnamese government.
In the Applicant 2 statement she claims as follows, among other things (errors in original):
[…]
2. Upon my return to Vietnam, I will be subjected to detainment, harassment, questioning, imprisoned for the following reasons:
a. I am an active member of Viet Tan. I am also married to another member of Viet Tan, [Applicant 1]. Viet Tan is considered a terrorist organisation by the Vietnamese government. All members of Viet Tan are arrested in Vietnam.
b. I'm also active as a [social media] blogger, where I openly publish and distribute restricted content criticizing the corrupt practices and human rights abuses of the Vietnamese government. My online activism aligns with various campaigns, not only those of Viet Tan but also other Vietnamese individuals advocating against the Vietnamese government. These consistent actions are deemed unlawful as they challenge the Vietnamese government's authorities and therefore my blogging actions put me at risk of severe penalties upon returning to Vietnam.
Background Information:
3. I was born on [date] in Nghe An, Vietnam.
4. I am a citizen of Vietnam. I do not have the right of citizenship or a right to reside in any other country.
5. I am Kinh ethnicity and Catholic region.
6. I am married to [Applicant 1] (DOB: [deleted]). We have two children together, [Child 1] born on [date] and [Applicant 3] born [in] 2019.
7. I was born in a family practicing Catholic belief. My father and uncle are members of the parish council. My [other relatives] are all young Catholics who participate in all volunteer activities of the church. We all went to Christian Doctrine School every summer holiday and had finished the religious education in my hometown.
8. In 2013, I left Vietnam to study in Australia.
9. From 2013 to 2014 I studied at [named] College in Melbourne, Australia.
10. In 2015, I transferred to [another] Institute and studied there until 2016. I was struggling to continue with my study as the course materials were above my level of comprehension. I decided to quit studying and started working. My student visa was expired due to non-attendance for the course.
Activities in Australia:
Wife of a Viet Tan member
11. In early 2018, I was introduced to my husband, [Applicant 1]. He actively participates in Viet Tan’s activities and has introduced me to the organisation. I started to attend Viet Tan’s monthly fundraising activities. I was very impressed by the actions of Vietnam Reforming Party (Viet Tan). I appreciate Viet Tan’s mission to overcome regulations dictatorship and building the foundation for a sustainable democracy in Vietnam. I also learned many things about Viet Tan's activities on [social media] at the same time. As I continue to participated in Viet Tan’s activities, I started to apprehend a risk of detain upon my return to Vietnam. I applied for protection visa on October 5, 2018.
12. Following numerous interactions with my husband, we gradually discovered shared interests, beliefs, and values. Our bond strengthened as we realized our strikingly similar political prospects and critical perspectives on the Vietnamese Government, shaped by our firsthand experiences, especially in our hometown of Nghe An.
13. The Vietnamese Government willing to take serious actions on those who are and about to raise voice against them. All the individuals who dare to challenge these Government leaders’ power will immediately subjected to detainment and punishments. As the wife of an official member of Viet Tan, I am considered an accomplice to terrorism by the Vietnamese government. I am confident that the Vietnamese Government is cognizant of my association with a Viet Tan member.
14. My husband is also an active political blogger who frequently engages in online protests by sharing and commenting on articles deemed critical to the Vietnamese authorities. These actions are perceived as threats to Vietnamese authority. His personal [social media] and Viet Tan page prominently feature his identity, including his photograph, thereby exposing him to the risk of prosecution and charges for his political involvement, even while residing in Australia.
Member of Viet Tan
15. In 2023, I became an official member of Viet Tan. I was assigned various roles and duties within the organization. I harbor deep concerns that upon my return, I would be subjected to harm, harassment, and imprisonment. I am convinced that the Vietnamese government are aware of my involvement in these activities as my participations as Viet Tan member was made widely publicly available on the internet.
16. My activities as a member of Viet Tan include, organising fundraising dinners, preparation of monthly pho noodle day. I would help out with organising and preparing for other protests and Viet Tan’s internal events, recruiting new members through my personal networking, and share their information online.
17. I recognised that Viet Tan is not a terrorist organisation as claimed by the Vietnamese government. They are a pro-democracy organisation that aims to promote human rights values for Vietnam. However, many Viet Tan members have been arrested by the Vietnamese government based on ‘terrorism’ charges. These are shamed charges imposed by the Vietnamese government to conceal their serious infringement of human rights.
18. Due to Viet Tan’s highly sensitive political agendas, Viet Tan members are by invitation only. Each individual is assessed on case by case basis. Despite my husband being a long-time member. I was not able to join Viet Tan at first instance. After several months of active participations, raining and observation, I was granted official membership in 2023.
19. I am aware of the dangers involved in engaging in political activities against the Vietnamese government. However, I am prepared to confront those risks and persist in using my voice to advocate for human rights values in Vietnam. The people of Vietnam are experiences oppression and persecutions just for raising their voice.
20. Having lived in Australia, where the right to freedom of expression is respected, I firmly believe that every individual deserves this fundamental right. I am determined to utilize my platform to support the Vietnamese people in their pursuit of experiencing such freedoms, and I will continue to be a staunch promoter of human rights in Vietnam.
Blogging Activities:
21. In Australia, people are given many human rights and freedom. I realized that the Vietnamese people were serious intrigued by the unacceptable actions of oppression by the Vietnamese Government. In Vietnam, political information is manipulated into the way they want it to be and critical information are heavily censored. Residents are prevented from approach the objective information. Therefore, people will have the wrong perspective of the real face of Vietnamese Government.
22. Through our discussions, my partner encouraged me to use my voice and social media and raise awareness on the current political situation to people in Vietnam and across the world. I thought that will be an effective way to deliver widespread messages to all Vietnamese. I began to share and repost many [social media] posts to illustrate my political stance against the Communist Vietnamese.
23. I have shared many photos of my activities in Australia. Many of them includes the flag of the Republic of Vietnamese, which is forbidden back in my hometown Vietnam. I will be persecuted for publicly threatening the Communist Vietnamese government’s authority. These photos are also posted on Viet Tan’s [social media] Page.
24. I've actively engaged in sharing, commenting, and posting about online articles exposing the wrongdoings and cruel activities of the Vietnamese government for a long time. Many of these posts are a direct share from Viet Tan's [social media] page. The Vietnamese government closely monitors Viet Tan's [social media] page and maintains records of all individuals who interact with it, including likes, comments, and appearances. These records are utilized to summon and persecute individuals associated with Viet Tan, subjecting them to questioning, threats, and arrest.
25. I believed by online activities have come to the attention of the Vietnamese government. Many [social media]er users were arrested in Vietnam for sharing posts that are deemed critical to the Vietnamese authorities. I will also be arrested for posting online.
Participations in protests and rally:
26. While in Australia, I have attended many activities such as protests, fundraising campaigns, petition campaign to promote Viet Tan as an organisation as well as promoting our missions for a freedom for Vietnam.
27. On 9 December 2018, I attended a campaign celebrating 70th Anniversary of International Human Rights Day. I note the month “September” in the evidence booklet was a typographical mistake.
28. I also attend other fundraising events for human rights in Victoria. I hold banners and doing campaigns to motivate donations for helping other Vietnamese who are suffer detention for voicing their opinion and demanding democracy for Vietnam.
29. I also attended and participated in an event to raise fund for Ukrainian who are suffer from war and humanity crisis.
30. On 30 September 2018, I joint a protest at Federation Square in relation to the Communist China’s increase domination of Vietnamese Economy through the leasing agreement for 99 years.
31. I protested at the Parliament House opposing the Vietnamese Government violate Human Rights on 2 March 2024.
32. I am certain the Vietnamese government are aware of my association with Viet Tan and my political activities against the government. I will be at risk of persecution and arrest for my involvement similar to many other prisoners of consciences.
33. I will continue to raise awareness on the political situation in Vietnam in particular, because I believe all humans have the right to freedom. It is in my human nature to protect and stand up for what I truly believe in.
Fears of Returning to Vietnam
34. I will be persecuted and imprisoned for the above activities and my involvement with Viet Tan.
35. There have been several records of human rights activist who have been tortured and some were unexpectedly died in prison. The cause of dead is unknow. International organisation blamed these dead are arbitrary. The Vietnamese government blamed these dead are medical, or suicidal reasons. I believed these political prisoners are tortured to dead. The Vietnamese government’s excuses are to conceal the inhumane abuse and prison conditions from the Vietnamese as many individuals have been beaten to death. I believe I could be killed in prison due to their torture and physical abuse as of many prisoners of conscience.
[…]
In that statement Applicant 2 also sought to make the following corrections to the information advanced before the delegate (errors in original):
Clarification of previous claims:
40. I was represented by another lawyer with the protection visa application before the Department. The previous representative assisted me to complete the application. I have no idea of the content of what was written in the application.
41. I was introduced to the previous lawyer whom later I found out she is not a solicitor. I went to meet her at Fooscray and I told her about my situation. I also gave her some evidence that I shared and spoke about the unfair attitude of Vietnamese communists via [social media] to support the application. She asked me to sign the blank form and she told me she would fill out the form later. I relied on her expertise as a lawyer, especially because she was a lawyer from Vietnam and I knew that she had experience with asylum applicants like me.
42. Many of the answers were correct and accurate. She only provided me with a copy of the completed application after the department had rejected the application and she had submitted the application to the AAT. I told her that there were answers that weren't true and she said that her answer would get more attention and better for my application. I was not satisfied with the untrue answers as I am a good Catholic and she told me “the application was not likely to be successful anyway and you should try to find another way to stay in Australia”. Over time I understood more about the status of my application and I decided to change lawyer in 2020. My new solicitor advised me to be honest about my situation.
43. I would like to address some of the answers in the application that were not true in the protection visa application.
44. In question 77, I said I went to protest to demand that the government release [Father A] in 2012, but I wasn’t arrested with my friend while protesting as mentioned. This is untrue.
45. In question 78, it is mentioned that I was arrested with a group of protesters for 3 days but this is not true. Again, I think the lawyer exaggerated my request because she thought she was doing me a favour.
46. I did not participate in political activities in Vietnam. However, I have known other people who got arrested for raising their voice for human rights in Vietnam. As I got more involved in human rights activities in Australia, my knowledge of human rights issues has deepened, and I realised the people in Vietnam are facing more than just oppression of opinions. It's sometime an arbitrary dead for human rights activists in Vietnam.
In the Pre-hearing submissions, Ms Hoang made submissions consistent with the content of the Applicant 1 and Applicant 2’s statements, including the contention that each family member fears harm for reason of the other family member’s adverse profile with the Vietnamese authorities. The Pre-hearing submissions also contain country information and submissions regarding the application of that material to the applicants’ circumstances. Those submissions also reiterate the applicants’ claims they fear harm in Vietnam for reason of their adverse political profiles with the Vietnamese authorities deriving from their membership and association with Viet Tan, their Catholic religion and their involvement in other past and future activities deemed critical of the Vietnamese government.
In those submissions, Ms Hoang also states the applicants have 3 separate review applications before the Tribunal and this had occurred due to insufficient procedural advice about their visa applications at the Department level. Ms Hoang requests on behalf of the applicants that the Tribunal to consider all evidence submitted collectively for all three applicants, and that the Tribunal provide a joint decision record containing all three review application files. That submission also confirms Applicant 1 and Applicant 2’s second child ([Child 1]) does not have an outstanding application.
The Pre-hearing submissions also contend that Applicant 3 would be at risk of harm in Vietnam for reasons including the following:
a.Due to him not having a Vietnamese birth certificate or household registration, and because the Vietnamese authorities would discriminatorily withhold issuing documentation to him due to Applicant 1 and Applicant 2’s membership of Viet Tan. Following this, it is submitted there is a real and substantial risk that Applicant 3 would be denied access to health care and education services in Vietnam. This risk would be compounded by Applicant 1 and Applicant 2 being detained on return and Applicant 3 not be under the care of any other adults.
b.Due to him being a child of a political prisoner.
The Pre-hearing submissions enclosed the following further documents:
a.A copy of a document dated 15 February 2024 purporting to be content from an official Vietnamese government webpage in the English language advising that the Ministry of Public Security listed Viet Tan (“Vietnam reformed party revolution”) as a terrorist organisation “pursuant to Vietnamese and international law”.
b.A copies of content purporting to be from a Vietnamese government webpage listing various individuals as members of terrorist organisations, for reason of their Viet Tan membership.
c.Copies of various publications by media outlets and non-government organisations concerning the arrest, detention and imprisonment of people in Vietnam for reason of their Viet Tan membership and activities.
d.A birth certificate issued pursuant to the Births Deaths and Marriages Registration Act 1996 (VIC) for [Child 1], date of birth, [deleted], listing Applicant 1 and Applicant 2 as parents.
On 26 March 2024, for medical related reasons affecting the applicants, the Tribunal adjourned the hearings listed for 26 and 27 March 2024 and listed a new combined hearing on 4 April 2024 at 09:30AM for all three applicants.
On 4 April 2024, Applicant 1 and Applicant 2 appeared before the Tribunal with the assistance of their representative and an interpreter in the Vietnamese and English languages, to give evidence and present arguments relating to the issues arising in relation to the decisions under review.
The Tribunal also took oral evidence from one witness, [Ms A] a senior member of the Melbourne branch of Viet Tan.
The oral evidence provided by Applicant 1, Applicant 2 and [Ms A] was consistent in all respects with the evidence provided in writing to the Tribunal. Further, Applicant 1 and Applicant 2 gave detailed and persuasive evidence in relation to their motivations in joining Viet Tan, that organisation’s foundation principles, its leadership structure and those issues of most concern to it. Applicant 1 and Applicant 2 also gave oral evidence regarding their general background and family in Vietnam that was also consistent in all respects with that provided to the Tribunal in writing.
Applicant 1 and Applicant 2 also both articulated their fears that their children, including Applicant 3, would suffer serious harm in Vietnam similar to that which happened in the past to children of other critics of the Vietnamese government, including Tran Thi Nga and Nguyen Ngoc Nhu Quynh. They gave evidence that in those cases the Vietnamese authorities arbitrarily detained the children and seized the children’s birth certificates which then prevented the children from attending public schools and accessing other government services. They also gave evidence that, in addition to that harm, they feared their children would also be labelled children of activists opposed to the government and suffer discrimination and harassment in other ways for that reason.
At the hearing, [Ms A] provided to the Tribunal a written statement dated 25 March 2024 in which she declared, among other things:
a.She is a senior Viet Tan member of the Melbourne branch.
b.She first met Applicant 1 at several Vietnamese community and Viet Tan events in Australia.
c.Applicant 1 was recruited and became a Viet Tan member in 2018, and since then he has continuously been trained and resourced to take varied significant tasks and roles in organising events across Melbourne and in other states.
d.Applicant 1 has demonstrated that he is very enthusiastic in his actions to promote democracy, justice and welfare of the people in Vietnam. He is always very collaborative in their campaigns and activities, often undertake significant roles in those activities and has a very strong work ethic and faith.
e.She is certain that if Applicant 1, Applicant 2 and their children are deported to Vietnam they will be subjected to assault, sentencing and imprisonment as they have been active both online and in-person in sensitive political activities unfavoured by the Vietnamese authorities.
The Tribunal notes that the content of [Ms A]’s statement was consistent in all respects with the written and oral evidence provided by the applicants.
Country information
Demography
DFAT advises that Vietnam’s population is about 100 million people, and that it has a young, largely rural population with about 7 per cent of people older than 65 years and 38 per cent of people living in urban areas.[3] The two largest cities are Ho Chi Minh City (HCMC) with 8.8 million people, and the capital Hanoi with 4.8 million people.[4] The Vietnamese language, based on the Hanoi dialect, is widely spoken throughout the country.[5]
[3] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information report – Vietnam, 11 January 2022 (2022 DFAT Report), at [2.4], available at: Ibid.
[5] Ibid.
According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty.[6] In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups.[7] The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic, and this is reflected in a growing middle class and increasing urbanisation.[8]
Political opinion
[6] 2022 DFAT Report, at [2.5].
[7] Ibid.
[8] Ibid.
Vietnam is a one-party communist state with Communist Party of Vietnam (CPV) members holding all senior government and military positions.[9] The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power. Elections are held for the National Assembly, most recently in May 2021.[10] Ninety-two per cent of candidates in the National Assembly are members of the CPV. DFAT assesses that real political power is held in CPV structures rather than the National Assembly.[11]
[9] 2022 DFAT Report, at [2.28].
[10] 2022 DFAT Report, at [2.29].
[11] Ibid.
DFAT reports that that opposition parties are effectively illegal, and that threats to CPV legitimacy are seen as threats to the state and are not tolerated.[12] Country information confirms that the right to assembly and demonstrate in Vietnam is constitutionally protected[13] but in practice that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People's Government' (article 109), 'making, storing or spreading information … opposing the State' (article 117) and 'abusing democratic freedoms to infringe upon the interests of the state' (article 331).[14] DFAT assesses that these laws effectively outlaw protests that the Government finds sensitive and official approval is required to protest, which is routinely denied for sensitive topics, and protests that are allowed are subject to close police monitoring.[15]
[12] 2022 DFAT Report, at [3.49].
[13] 2022 DFAT Report, at [3.52]; Journal of Contemporary Asia, The State in a Capitalist Society: Protests and State Reactions in Vietnam and Indonesia', Wischermann, Jorg; Phuong Dang, Thi Viet & Sirait, George Martin, 06 April 2022, p. 14, 20220928151352.
[14] 2022 DFAT Report, at [3.52].
[15] Ibid.
DFAT reports that topics deemed to be sensitive can change or depend on local government priorities at the time, and that people with knowledge of the issue told DFAT that some 'red lines' and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day.[16] DFAT states that human rights, environmental or land-use protests and calls for democracy are sensitive issues, and an NGO's links to foreign governments may also intensify Government monitoring.[17] DFAT reports that COVID-19 'misinformation' is particularly sensitive and can lead to arrests, as can online organising of in-person protests, and particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.[18] DFAT assesses that other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.[19]
[16] 2022 DFAT Report, at [3.53].
[17] 2022 DFAT Report, at [3.54].
[18] Ibid.
[19] Ibid.
DFAT records that some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport, and assess that the former is considered much more sensitive by the Government and activists in different contexts have faced arrest.[20]
[20] 2022 DFAT Report, at [3.50].
DFAT records that street protests occur but much protest has now moved to online platforms.[21] Further, many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development), with the most prominent recent example being the widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and protests against laws that required social media companies like Google and Facebook to store user data domestically.[22] In 2022, it was reported that the government mobilised several battalions of mobile police across Vietnam to crack down on illegal demonstrations.[23]
[21] 2022 DFAT Report, at [3.51].
[22] Ibid.
[23] Vietnam Human Rights Network, Report on Human Rights in Vietnam 2022-2023, 15 October 2023, p. 36, 20231122095434.
Credible sources indicate that critics of the government have been harassed, intimidated, restricted in their movements, and imprisoned with unfair trials.[24] Further, political detainees are often held for months without legal counsel[25] and the authorities often use prolonged sentences to tactically silence many of the prominent activists.[26] The Vietnamese government has used tactics such as convicting activists with false tax evasion charges.[27] It is reported that between January 2019 and August 2023, 139 people have been sentenced to prison for criticising the government or joining pro-democracy groups, and as of October 2023, 166 political prisoners are being held in Vietnam.[28]
[24] Human Rights Watch, Human Rights Watch World Report 2023, 12 January 2023, p. 693, 20230112144355; 2022 DFAT Report, at [3.55]-[3.57]; Freedom House, Freedom in the World 2023 -Vietnam, 13 March 2023, D4, 20230417082342.
[25] Human Rights Watch, Human Rights Watch World Report 2023, 12 January 2023, p. 693, 20230112144355.
[26] Amnesty International, Amnesty International Report 2022/23: The state of the world’s human rights, 27 March 2023, p. 402, 20230328142801.
[27] Human Rights Watch, Vietnam: Rights Reforms Urgently Needed, 3 October 2023, 20231109141500; Freedom House, Freedom in the World 2023 - Vietnam, 13 March 2023, D1, E2, 20230417082342.
DFAT reports that activists might have difficulty obtaining legal representation and that lawyers who represent activist clients can face restrictions on their practice.[29] And further, activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement.[30] DFAT states that activists report physical and electronic surveillance, and women are less likely to experience violence but may experience sexual harassment online.[31] DFAT states that its sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.[32]
[29] 2022 DFAT Report, at [3.55].
[30] 2022 DFAT Report, at [3.56].
[31] Ibid.
[32] Ibid.
The United States Department of State (USDOS) advises that informal groups can gather, if the meeting is not deemed political or a threat to the government.[33]
[33] United States Department of State, Country Reports on Human Rights Practices for 2022 - Vietnam', 20 March 2023 (USDOS Human Rights Report 2022), p.21, 20230322091151.
The UK Home Office conducted a Fact-Finding Mission to Vietnam between 23 February and 1 March 2019 and it reported that the Fact-Finding Team were informed by various diplomatic sources that “Vietnam does not permit political opposition in the form of allowing opposition parties to operate. Activists are arrested for social media posts with charges often coming under Vietnam's vague security provisions such as ‘abusing democratic freedom’ and ‘making, storing, and spreading information, materials, and items for the purpose of opposing the state’”.[34] That report further advised that diplomatic sources stated there are different groups that the government has a closer eye on and this includes those who have links to foreign NGOs and those who want democracy or are pro a multi-party system.[35] In their Freedom in the World 2023 report, Freedom House claimed “[m]embers of illegal opposition parties are subject to arrest and imprisonment”.[36] The source did not state the scale of those arrested and imprisoned for their membership of opposition parties.
[35] Ibid, at [8.3.3].
[36] Freedom House, ‘Freedom in the World 2023- Vietnam’, 2023.
Country information contains reports of children of persons considered by the Vietnamese authorities to be political dissidents to have suffered harm for reason of that family relationship. In 2017 a Vietnam court sentenced activist Tran Thi Nga to nine years in prison followed by five years under house arrest for spreading “anti-State propaganda”.[37] Credible sources report that, at the time, her child who was 6 years old at the time was also detained and isolated from family members.[38] Those sources also report that the Tran Thi Nga’s children later struggled with discrimination at school during their mother’s prison term, and that Tran Thi Nga claimed that her children also experienced police violence used against them.[39] Nguyen Ngoc Nhu Quynh, 38, who blogs under the pen name “Mother Mushroom” (Me Nam), was reported as being arrested in October 2016 and charged with “conducting propaganda against the state” under article 88 of the penal code, a provision that has been regularly used to arbitrarily punish critics of the government and activists.[40] She was subsequently sentenced to 10 years in prison[41], but later released in 2018 on the condition of exile, and sent to the United States following diplomatic pressure from that country.[42] Country information refers to Nguyen Ngoc Nhu Quynh’s children and mother being placed under house arrest in 2017[43] prior to their exile to the United States
[37] Human Rights Watch,
[38] The 88 Project, Interview with Former Political Prisoner Tran Thi Nga About Effects of Prison on Women and Children, 10 June 2020, available at:
[39] Ibid.
[41] Ibid
[42] Frontline Defenders, Me Nam released from prison, arrives in USA, 18 October 2018, available at: The Guardian, Mother Mushroom: Vietnam dissident and blogger arrives in US, 18 October 2018, available at:
[43] Frontline Defenders, Authorities formally charge and extend detention of Nguyen Ngoc Nhu Quynh, 16 June 2017, available at: >
DFAT advice concludes that it is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when, but: those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting; and those who organise protests are more likely to face discrimination; but the possibility of a low-level activist being arrested cannot be discounted.[44]
Online activities and monitoring
[44] 2022 DFAT Report, at [3.57].
DFAT advises that social media, especially Facebook, has become a popular option for expressing opinion, more than street protests in Vietnam, and users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled.[45] DFAT reports that the authorities closely monitor online activism and its human rights advocate sources claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as 'Force 47'.[46] The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts.[47] Force 47 is allegedly active on topics such as religion, women's and LGBTI rights, and human rights generally.[48]
[45] 2022 DFAT Report, at [3.61].
[46] Ibid.
[47] Ibid.
[48] Ibid.
DFAT reports that legal reforms in 2019, sometimes referred to as 'The Law on Cyber Security', forced international social media companies to set up offices and store user data domestically.[49] Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020, and one source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists.[50] Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.[51]
[49] 2022 DFAT Report, at [3.62].
[50] Ibid.
[51] Ibid.
DFAT reports that low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities.[52] Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing 'fake news', required to provide 'evidence' for their views and fined, and frequent posting online increases the risk of attention from authorities.[53] DFAT reports that several of its sources told it that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.[54]
[52] 2022 DFAT Report, at [3.63].
[53] Ibid.
[54] Ibid.
DFAT assess that it is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people.[55] It assesses that online activists face a moderate risk of official discrimination, and a repeated pattern of online activity would generally, but not always, attract the attention of authorities.[56] DFAT states that it is aware of one-off posters being identified and charged on the basis of spreading 'misinformation', especially in relation to the COVID-19 pandemic, and while a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities' attention.[57]
[55] 2022 DFAT Report, at [3.64].
[56] Ibid.
[57] Ibid
Similarly, USDOS advised in its 2022 Human Rights Report for Vietnam that the government monitored Facebook and other social media and punished those who used the internet to organize protests or publish content critical of the government.[58] And that the law allows the government to restrict and disrupt access to the internet, censor online content, impose criminal sentences for online expression, and routinely monitor private online communications.[59] And further, the government monitored Facebook and other social media and punished those who used the internet to organize protests or publish content critical of the government.[60]
[58] USDOS Human Rights Report 2022, at p17.
[59] Ibid.
[60] Ibid.
USDOS reports that on 5 January 2022, Dong Nai police arrested blogger Nguyen Thai Hung and his wife Vu Thi Kim Hoang for “abusing democratic freedoms”, and that Hung operated the “Speak by Truth TV” YouTube channel that often shared content critical of the government and had nearly 40,000 followers.[61] Police arrested Hung while he was live streaming on YouTube.
[61] Ibid.
USDOS also reported that in September 2022 several prominent social media critics of the state were fined or arrested in a three-day period.[62] On 6 September 2022, Thai Binh police fined game streamer Nguyen Thi Thanh Loan 10 million dong ($422) after she made a comment while live streaming that was construed as insulting the president.[63] On 7 September 2022, Danang City police arrested Bui Tuan Lam for “spreading information against the state” after Lam posted a video of himself on social media imitating the Turkish chef, Salt Bae, who appeared in a separate video handfeeding a gold-coated steak to Minister of Public Security To Lam in London.[64] On 8 September 2022, Dak Lak Province police arrested Dang Dang Phuoc for “spreading information against the State,” according to state media.[65] Phuoc was a vocal critic of the government with a large following on social media.[66]
[62] USDOS Human Rights Report 2022, at p18.
[63] Ibid.
[64] Ibid.
[65] Ibid.
[66] Ibid.
USDOS reports that the government sometimes blocked websites it deemed politically or culturally inappropriate, including sites operated by overseas Vietnamese political groups in addition to the websites of Radio Free Asia, Voice of America, and the BBC Vietnamese news service.[67] And state-owned internet service providers routinely blocked domestic Vietnamese-language websites that contained content criticizing the CPV or promoted political reform.[68]
[67] Ibid.
[68] Ibid.
USDOS also advised in its 2022 Human Rights Report that all companies and organizations operating websites providing content on “politics, economics, culture, and society” or operating social networks, including blogging platforms, to register with the government, and such organisations must locate at least one server in the country to facilitate government requests for information and must store posted information for 90 days and certain metadata for up to two years.[69]
[69] Ibid.
USDOS advises that the government forbids direct access to the internet through foreign internet service providers and requires internet service providers to provide technical assistance and workspace to public security agents to allow them to monitor internet activities.[70] The Ministry of Public Security required “internet agents,” including cybercafes, to register the personal information of their customers, store records of internet sites visited by customers, and participate in government investigations of online activity.[71] Internet cafes continued to use government-approved software to monitor customers’ online activities.[72] USDOS advised that in 2022 the Ministry of Public Security enforced these and other requirements and monitored the internet selectively.[73] The government pressured firms such as Facebook and Google to eliminate “fake accounts” and content deemed “toxic,” including “antistate” materials.[74] The Ministry of Information and Communications pressured social media platforms to comply with political-speech takedown requests, especially for posts critical of senior CPV officials.[75]
[70] Ibid.
[71] USDOS Human Rights Report 2022, at p19.
[72] Ibid.
[73] Ibid.
[74] Ibid.
[75] Ibid.
USDOS reported that in 2022 authorities also suppressed online political expression by direct action against bloggers, such as arrests, short-term detentions, surveillance, intimidation, and the illegal confiscation of computers and cell phones from activists and their family members. And that the government continued to use national security and other vague provisions of the penal code against activists who peacefully expressed their political views online.[76]
[76] Ibid.
USDOS advised in its 2022 report that users of state-sponsored social networks and blogs were required to provide their full name, national identification number, and address before creating an account.[77] And that in-country website and social network operators must allow authorities to inspect local servers upon request and must have a mechanism to remove prohibited content within three hours of detection or notification by authorities.
Viet Tan
[77] Ibid.
Country information confirms that Việt Nam Canh tân Cách mạng Đảng (English: ‘Vietnam Reform Revolutionary Party’), also known as Viet Tan [Việt Tân] (Viet Tan) and Vietnam Reform Party, is a US-based pro-democracy group with a stated mission of overcoming dictatorship and building the foundation for a sustainable democracy in Vietnam through non-violent protest.[78]
[78] Viet Tan Official Website, Introduction, Why Viet Tan, available at:
The Guardian reported in 2016 that the Vietnamese authorities had declared Viet Tan a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished.[79] In 2022, ABC News published an article reporting that Foreign Minister Penny Wong raised the ongoing detention of Australian citizen Chau Van Kham, with Vietnamese government representatives in June 2022, after a United Nations body found he was arbitrarily detained and "forcibly disappeared". That article states Vietnamese authorities sentenced him to 12 years in prison on national security charges, due to his links with pro-democracy group Viet Tan.[80] According to Amnesty International, Mr Chau was a prisoner of conscience, detained solely for his peaceful political beliefs.[81] Mr Chau was released after four years into his sentence on ‘humanitarian grounds “in a spirit of friendship” between Canberra and Hanoi, according to Australian Deputy Prime Minister Richard Marles’.[82]
[79] The Guardian, ‘Vietnam declares US-based activist group is a terrorist organisation’, 7 October 2016, available at:
[80] ABC News, Penny Wong raises Chau Van Kham case with Vietnamese President after UN finding he was 'forcibly disappeared', 30 June 2022, available at:
[81] 'RETIRED SYDNEY BAKER CHAU VAN KHAM FREED FROM VIETNAMESE PRISON, RETURNS TO AUSTRALIA', Amnesty International, 11 July 2023, 20230907161202;
[82] 'Activist says he’ll continue to struggle for democracy in Vietnam', Radio Free Asia (RFA), 30 July 2023, 20230731091639; 'Report on Human Rights in Vietnam 2022-2023', Vietnam Human Rights Network, 15 October 2023, p. 31, 20231122095434
The Overseas Security Advisory Council (OSAC)[83] security report on Vietnam published in July 2022 noted that: 'The Vietnamese government has “designated California-based pro-democracy group Viet Tan as a terrorist organization, accusing the group of training members to sneak into Vietnam to organize protests and instigate violence. Among others, authorities in 2019 arrested a Vietnam-born Australian citizen for his work with the group, convicting him of working to "fund terrorist operations."[84]
Religion generally
[83] A public-private partnership between the U.S. Department of State’s Diplomatic Security Service (DSS) and security professionals from U.S. organizations operating abroad:
[84] Overseas Security Advisory Council (OASC), Vietnam Country Security Report, 12 July 2022
Vietnam’s Constitution states that citizens ‘can follow any religion or follow none’ and that ‘all religions are equal before the law’.[85] DFAT reports that Vietnam is officially an atheist state but Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion.[86] The Constitution ‘allows authorities to restrict human rights, including religious freedom, for reasons of “national defence, national security, social order and security, social morality, and community well-being’.[87] The United States Commission on International Religious Freedom (USCIRF) reports that, in practice, the Vietnamese government closely monitors and restricts religious activities.[88] Similarly, DFAT advises that, in practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers.[89]
[85] USCIRF Report 2023, at p.2.
[86] 2022 DFAT Report, at [3.13].
[87] USDOS Religious Freedom Report 2023, at p. 47.
[88] USCIRF Report 2023, at p. 2. See also: The Vietnamese, The Vietnamese Government’s Oppression of Religion, 14 June 2023, 20231207073058.
[89] Ibid.
USCIRF reports that the Government recognises 46 different registered faith groups linked to 16 recognised religions[90], including Buddhism, Hoa Hao Buddhism, Cao Dai, Catholicism, Protestantism and Islam, but noted distinct denominations within those religious traditions must seek their own registration and recognition with the authorities.[91] USDOS reports that according to the Vietnamese 2019 National Population and Housing Census report there were approximately 13 million religious adherents, accounting for 14 percent of the total population at the time.[92] Roman Catholics represented 45 percent of the total number of religious followers, with Vietnam Buddhist Sanga (VBS) making up the second largest religious group with 35 percent of the total religious adherents.[93] This was then followed by Protestants at seven percent of the total number of believers nationwide, and many individuals blend traditional practices with religious teachings, particularly Buddhism and Christianity.[94] Almost 90 per cent of the population are thought to practice ‘some sort of religious or spiritual belief’.[95] Research institutions, including the Vietnam Academy of Social Sciences, estimate there are approximately 100 ’new religions’, mostly in the North and Central Highlands.[96]
[90] United States Commission on International Religious Freedom (USCIRF), Religious Freedom Conditions in Vietnam in 2023, September 2023 (USCIRF Report 2023), p. 2, 20230913122001.
[91] United States Department of State, 2022 Report on International Religious Freedom: Vietnam, 15 May 2023 (USDOS Religious Freedom Report 2023), Section III, p. 6, 20230518114630.
[92] USDOS Religious Freedom Report 2023, Section I, p.4, 20230518114630
[93] Ibid.
[94] USDOS Religious Freedom Report 2023, at p.5.
[95] USCIRF Report 2023, at p.2.
[96] USDOS Religious Freedom Report 2023, at p.5.
The Law on Belief and Religion (LBR) and implementing Decree 162 govern religious groups and their activities, requiring groups register with authorities and obtain official approval for their activities.[97] Once registered as a religious organisation, the law specifies that the group is then considered a non-commercial legal entity and is ‘allowed to conduct educational, health, social protection, charitable and humanitarian activities in accordance with relevant laws’.[98] Unauthorised organisations are restricted in their ability to publicly mark their house of worship[99], raise funds or distribute aid without seeking further approval from authorities.[100] Religious groups seeking registration may be encouraged to join state-sponsored alternatives, or register as affiliates of these groups.[101] Religious groups face particular difficulty registering in new or remote locations, and registration applications may be rejected by authorities ostensibly for reasons of providing incorrect or incomplete information although sometimes no explanation is provided.[102] Due to concerns of mistreatment from authorities or compromised independence, some groups refused to register.[103]
[97] USDOS Religious Freedom Report 2023, at p.6,
[98] USDOS Religious Freedom Report 2023, at p.6-7.
[99] USCIRF Report 2023, at p.4.
[100] USDOS Religious Freedom Report 2023, at p. 6-7.
[101] USCIRF Report 2023, at p.2.
[102] USCIRF Report 2023, at p.4.
[103] USCIRF Report 2023, at p.47.
On 1 January 2018, a new LBR was adopted.[104] The LBR has had mixed consequences for registered and unregistered religious groups. For some already registered groups the LBR has provided clarity about which activities are permitted with a number able to obtain permission for activities previously disallowed.[105] These groups tend to be larger and well-established, with good relations with authorities.[106] USCIRF reported in 2019 that some interlocutors indicated to them that authorities had generally become more tolerant of religion, with state officials prominently praising the role of religious organisations in promoting social welfare.[107] This involvement has been encouraged by authorities and was evident in religious group member involvement in COVID-19 community support including funding contributions and field hospital volunteer work.[108] However, it has been reported that religious groups that choose not to register with the authorities for reasons of conscience, or have had their application for registration rejected or ignored, have experience increased repression under the new LBR.[109]
[104] 2022 DFAT Report, at [3.14].
[105] 'Freedom of religion or belief since the January 2018 Law on Belief and Religion', Christian Solidarity Worldwide, June 2022, p. 2, 20220901152329.
[106] Ibid.
[107] United States Commission on International Religious Freedom (USCIRF), Country Update: An Assessment of Vietnam's Law on Belief and Religion, 21 November 2019, p.1, 20191122090923.
[108] USDOS Religious Freedom Report 2023, at p.30.
[109] ‘Freedom of religion or belief since the January 2018 Law on Belief and Religion', Christian Solidarity Worldwide, June 2022, p. 2, 4, 20220901152329.
USCIRF reports that implementation of the LBR varies significantly across provinces with experiences differing depending on locality and local authorities[110] Religious freedoms differ between urban and rural areas, with credible sources indicating urban areas are more accepting of different cultures and religions and religious adherents typically practice freely. DFAT and USCIRF report that in rural communities authorities may have insufficient education in current laws and procedures, and prejudices and personal biases mean societal discrimination is more prevalent.[111] Recognised religious leaders operating out of the Central and Northwest Highlands and in certain parts of the Mekong Delta reported ‘rapid growth and generally fewer problems with officials’, however this was not the case for unrecognised religious denominations operating in these areas.[112] By contrast, unregistered and/or ethnic minority religious groups in remote and rural areas are on occasion subject to ongoing harassment, disruption of services, arbitrary detention and other violations.[113] Religious groups that practice without being registered, or advocated for political and economic rights, have experienced threats, harassment, fines, expulsion and public denunciation.[114]
[110] United States Commission on International Religious Freedom (USCIRF), Country Update: An Assessment of Vietnam's Law on Belief and Religion, 21 November 2019, p.1,3, 20191122090923; USCIRF Report 2023, at p.4.
[111] USCIRF Report 2023, at p.4; 2022 DFAT Report, at [3.15]; [3.21].
[112] USDOS Religious Freedom Report 2023, at p.22.
[113] ‘Written statement* submitted by Christian Solidarity Worldwide, a non-governmental organization in special consultative status’, Christian Solidarity Worldwide, 17 June 2021, para.3, p.2, 20220117114221; 2022 DFAT Report, at [3.15]; USDOS Religious Freedom Report 2023, at p. 22.
[114] International Federation for Human Rights (FIDH), Vietnam Committee on Human Rights (VCHR), UNIVERSAL PERIODIC REVIEW (UPR) – 46th SESSION’, 11 October 2023, p. 53, 20231018084039; 2022 DFAT Report, at. [3.39].
Draft decrees and the implementation of a white book containing religious policies have the potential to further restrict religious groups and their activities if passed. In June 2022, two draft Decrees were introduced, one of which would replace the current Decree 162.[115] The two draft decrees would further restrict religious freedom, through imposing harsh punishments, including fines, suspensions, and forced dissolutions of religious groups for very vague violations.[116] Following USCIRF travel to Vietnam in May 2023, ‘[t]hey further communicated that the government is still in the process of reviewing the law and drafting two implementing decrees. However, they did not share the details of this review or drafting process when pressed to do so.[117] In March 2023, Vietnam’s Government Committee for Religious Affairs released a “white book” on religious policies, the first document of its kind in 16 years.[118] The white book outlines in detail the government’s attitude and current laws on religious freedom, the state of religious communities in Vietnam[119], and current achievements and priorities in promoting religious freedom.[120] USCIRF and media sources report that the 130 page document provides for regulation and control, similar to that of China, and fails to document any violations to the right of freedom of religion and belief that have been occurring.[121]
[115] USDOS Religious Freedom Report 2023, at p.47.
[116] USCIRF Report 2023, at p.47.
[117] USCIRF Report 2023, at p.2.
[118] Ibid.
[119] Ibid.
[120] VNExpress, Vietnam publishes first white book on religion, 9 March 2023, 20230912093416.
[121] USCIRF Report 2023, at p. 2; VNExpress, Vietnam publishes first white book on religion, 9 March 2023, 20230912093416.
DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, but the situation differs from place to place.[122] Further, those in large cities are particularly free to practise while adherents associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.[123]
Religion, advocacy and dissent
[122] 2022 DFAT Report, at [3.21].
[123] Ibid.
DFAT assesses that those associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism’.[124] It is further reported by DFAT that many incidents relate to religious groups that are politically active in local land or environmental disputes.[125] And that and that it can be difficult to distinguish between religious and political claims, and this distinction is not necessarily apparent in the everyday experiences of religious adherents or the authorities, either or both of whom may see religious activity as inherently political.[126]
[124] 2022 DFAT Report, at [3.21].
[125] 2022 DFAT Report, at [3.18].
[126] Ibid.
The United Kingdom Home Office and human rights organisations have reported that the Vietnamese authorities are suspicious of any organised group that may challenge its authority, and continue to closely monitor and disrupt the activities of unrecognised branches of various religious groups.[127] Christian Solidarity Worldwide advise that human rights violations have occurred, including harassment, disruption of services, arbitrary detention[128], intimidation and intrusive monitoring, arrest, imprisonment and torture.[129] Following an in-country visit in May 2023, USCIRF noted ‘the recent crackdown on civil society, increased pressure on independent religious communities, alarming reports of forced renunciations of faith, and other growing religious freedom violations add up to a clear reversal in that once-positive trajectory’.[130]
[127] 52 'Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, p.697, 20230112144355; United Kingdom Home Office, Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019, 9 September 2019, p.25, 20190917095808
[128] Christian Solidarity Worldwide, ‘Written statement* submitted by Christian Solidarity Worldide, a non-governmental organization in special consultative status’, 17 June 2021 , para.3, p.2, 20220117114221.
[129] Christian Solidarity Worldwide, Vietnam: General Briefing, March 2021, p.1, 20220117150216
[130] USCIRF Report 2023, at p.6.
Country information indicates that land rights continue to be a flashpoint for religious organisations and state relations in Vietnam. Provincial and local authorities exercise control over land belonging to individuals and religious organisations in the name of social and economic development projects.[131] Religious leaders in Vietnam have claimed authorities have not acted transparently or fairly in land disputes involving religious groups and believers, often resulting in unsuccessful retention of land, and that this is the case for recognised, registered and unregistered religious groups.[132] There have also been reports of appropriated land being sold to the private sector for development.[133]
Catholicism
[131] USDOS Religious Freedom Report 2023, at p.24-25.
[132] Ibid.
[133] 2022 DFAT Report, at [3.28].
The Vietnamese government officially recognises Catholicism[134] and there is a sizeable Catholic population in the country, with approximately 7 per cent of the population in Vietnam being Catholic.[135] DFAT reports that while Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces).
[134] 2022 DFAT Report, at [3.16]; USDOS Religious Freedom Report 2023, at p.6; Vietnam Plus, White book on religions, religious policies in Vietnam debuts, 9 March 2023, 20230808141141.
[135] USDOS Religious Freedom Report 2023, at p.2; USCIRF Report 2023, at p.2; Herald Malaysia, Persecution not a deterrent to Catholicism in Vietnam, 26 May 2023, 20231017090046; UCA News (UCAN), Vietnam's new priests told to embrace all people, 27 June 2022, 20220628112033.
DFAT advises that the Catholic Church in Vietnam is, by definition, united and can deal with the Government at a national level across Vietnam.[136] It also states provincial authorities might also have relationships at the diocesan level; sometimes local relationships are better than the national level relationship, and in general, relationships between the Government and the Church are cordial although individual parishes do need to be registered.[137] Country information confirms that the Vietnamese Government has taken steps to improve its treatment of Catholics in Vietnam[138], including the relationship with the Vatican, such as allowing the Holy See to have a permanent representative in Vietnam.[139] DFAT also reports that Catholic Church officials in Vietnam do not have official relationships with the Catholic Church overseas (except perhaps the Vatican), but in-country sources advised that individual Catholics or communities have relationships with the diaspora overseas, including in Australia, and these relationships are generally unhindered.[140]
[136] 2022 DFAT Report, at [3.23].
[137] Ibid.
[138] Vietnam Plus, Eighth National Congress of Vietnamese Catholics held, 12 October 2023, 20231017070800.
[139] UCA News (UCAN), New year offers ‘comprehensive’ Vietnam-Vatican ties, 2 January 2024, 20240103114602; Union of Catholic Asian News (UCAN News), First step towards better church-state ties in Vietnam, 11 August 2023, 20230815130718; Union of Catholic Asian News (UCAN News), Viet president meets bishops, strengthens ties, 9 August 2023, 20230810085222; Radio Free Asia (RFA), Vietnam to let Vatican appoint resident representative, 19 July 2023, 20230801103443.
[140] 2022 DFAT Report, at [3.29].
DFAT states that in-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.[141] DFAT assess that most Catholics worship in churches as part of parishes, while some communities, particularly outside of cities, worship in homes of believers.[142] DFAT advises that these activities may be limited by authorities in some cases, but this differs from place to place, but in general, Catholics in cities worship freely in churches.[143]
[141] 2022 DFAT Report, at [3.22].
[142] 2022 DFAT Report, at [3.24].
[143] Ibid.
DFAT reports that in-country sources told DFAT Catholics generally do not experience societal discrimination. However, DFAT assesses that such discrimination cannot be ruled out, but understands from in-country sources that there is not a pattern of such discrimination.
DFAT reports that the 'Red Flag Association', a militant pro-Government movement allegedly under the direction of local governments and whose activity included protests outside Catholic churches, was reported to have disbanded in 2018.[144] In-country sources told DFAT that these protests have not occurred in the last two years and that such activity is now more likely to be online.[145]
[144] 2022 DFAT Report, at [3.27].
[145] Ibid.
USDOS and other sources state there have been reports of occasional tension and restrictions on religious activities, particularly in remote areas with majority ethnic minority populations.[146] Catholic communities have experienced some limitations on the expansion of religious activities, such as restrictions on building new churches and infrastructure.[147] Additionally, there have been cases where Catholic activists and clergy members faced government scrutiny and harsh treatment, however this is often linked to their involvement in advocating for human rights, land use or expressing political opinions.[148]
[146] USDOS Religious Freedom Report 2023, at p.8; USCIRF Report 2023, at p.4; Radio Free Asia (RFA), Religious leaders ask US to sanction Vietnamese government officials, 22 May 2023, 20230523161823
[147] 2022 DFAT Report, at[148] 2022 DFAT Report, at [3.18], [3.19]; Union of Catholic Asian News (UCAN News), Vietnam releases Christians, asks to abandon faith, 7 November 2023.
DFAT reports that land disputes have been reported, including the seizure of Catholic land and buildings, and a particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished and the land sold.[149] DFAT also reports that land appropriated in this way might be sold to private sector for development.[150] However, much of the land seized in the aftermath of the Vietnam War has, and continues to be, been returned, including during the COVID-19 pandemic when the government returned land in cooperation of the church.[151]
[149] 2022 DFAT Report, at [3.28].
[150] Ibid.
[151] Ibid.
DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.[152] In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. DFAT reports that some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness.[153]
[152] 2022 DFAT Report, at [3.31].
[153] Ibid.
DFAT assesses that Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.[154]
Processes on return
[154] Ibid.
DFAT advises that authorities occasionally question returnees from Australia upon their arrival in Vietnam, and that the interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part.[155] DFAT also reports that returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased.[156]
[155] 2022 DFAT Report, at [5.31].
[156] 2022 DFAT Report, at [5.32].
DFAT assesses that those returnees who used their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the DFAT advice detailed above and that the laws related to illegal emigration might apply to those people.[157]
Birth registration and access to services
[157] 2022 DFAT Report, at [5.35].
The Legal Atlas for Street Children[158] states that ‘[t]o qualify for Vietnamese citizenship through birth, a child must have access to her/his own birth certificate granted by a civil status registration office in Vietnam.’[159] For Vietnamese people living outside Vietnam, the Vietnamese Embassy or consular office is their civil status registration office, also referred to in the Law on Civil Status (No. 60/2014/QH13) as a ‘representative mission’.[160]
[158] The Legal Atlas for Street Children is produced by the Consortium for Street Children and Baker McKenzie LLP. The Legal Atlas features research on three areas: status offences, police round-ups and legal identity laws.
[159] Can a child apply for citizenship? (3B), Consortium for Street Children, The Legal Atlas for Street Children, April 2019, 20210216150633.
[160] 'Nội dung toàn văn Law No. 60/2014/QH13 on civil status', The Socialist Republic of Vietnam,Parents are required to register their child within 60 days of birth. It is possible to register a child outside the 60 days, however a fine may be payable.[161] A November 2020 Landinfo report notes that births registered within 60 days are registered free of charge, and that ‘[l]ate registrations still occur, particularly among work migrants and ethnic minorities.’[162]
[161] Can a child obtain retroactive or replacement birth registration documents? (3A), Consortium for Street Children, The Legal Atlas for Street Children, April 2019, 20210216143834.
[162] Vietnam: Pass og underlagsdokumenter (Vietnam: Passports and Supporting Documents), Landinfo, 09 November 2020, p.4, 20201113101704.
The Law on Civil Status (No. 60/2014/QH13) outlines procedures for registering a birth. Parents whose child was born outside Vietnam, but who have returned to Vietnam without registering their child, are required register the birth at the District-level People’s Committee in their place of residence.[163] Parents living outside Vietnam can register a birth at the Vietnamese Embassy or Consulate where they live.[164] The Law on Civil Status (No. 60/2014/QH13) also specifies the procedures for registering a child’s birth with the Vietnamese authorities outside of Vietnam at a Vietnamese mission.[165]
[163] 'Nội dung toàn văn Law No. 60/2014/QH13 on civil status', The Socialist Republic of Vietnam,[164] Ibid.
[165] Nội dung toàn văn Law No. 60/2014/QH13 on civil status, The Socialist Republic of Vietnam, vanbanphapluat.co, 20 November 2014, p.24, 20210216145551.
Country information indicates that the requirement for individuals to be registered with the authorities on a household registration book (ho khau) is being phased out and replaced with a national digital register.[166] Sources also indicate that new laws provided for by Law on Identity Card 2023 will come into effect on 1 July 2024 that will change the process for obtaining an identity card for a child.[167]
[166] Vietnam: Pass og underlagsdokumenter (Vietnam: Passports and Supporting Documents), Landinfo, 09 November 2020, p.4, 20201113101704; All Vietnamese to get new 12-digit ID number at birth from 2020', VNExpress, 30 September 2019, 20191016092829; Management of citizen residence to be digitalized, Accor, Vietnam Law and Legal Forum, 25 May 2020, 20200730141737.
[167] From 01/7/2024: Shall children in Vietnam be issued with identity cards?’, LawNet Vietnam, 26 December 2023, 20240226073422; see also 'Law on Citizen Identification to be revised to protect Vietnamese citizens’ rights', Vietnam Law and Legal Forum, 27 February 2023, 20240206072151. See Clause 2, Article 23 for the procedures applying to issuing identity cards to children, including those born outside of Vietnam.
DFAT reports that a local residence registration and a birth certificate are required to access enrolment in public schools.[168] DFAT further advises that without a local registration, access to services such as public education and healthcare becomes difficult; a local registration is required to access government services.[169] A child cannot be registered without household registration documents and an identity card, and that although it is possible to re-register in a new locale after moving, but this process can be lengthy and difficult, and this deters some people.[170] According to a 2019 fact-finding mission report by the UK Home Office, household registration is not a barrier to relocation; whereas previously major purchases such as a car required a local registration, these kinds of barriers have been removed over time.[171]
[168] 2022 DFAT Report, at [2.12].
[169] 2022 DFAT Report, at [5.23].
[170] Ibid.
[171] Ibid.
DFAT also advises that internal relocation and re-registration in a new residence is possible, but bureaucratic difficulties may arise for certain people, and examples include widows, having difficulty getting cooperation from their in-laws, or recently released prisoners who might be refused registration by police who do not want 'troublemakers' in their district.[172]
[172] 2022 DFAT Report, at [5.24].
FINDINGS AND REASONS
The Tribunal has regard to all material before it, including that which was before the delegate, all subsequent material provided by the applicant to the Tribunal, and relevant country information.
Receiving country
Applicant 1 and Applicant 2’s evidence, including that on behalf of Applicant 3, in relation to their nationality, places of birth, education, family compositions, ethnicity, places of residence, religion and languages spoken, has been generally consistent throughout their primary and merits review protection visa processes. The applicants have also been consistent in their evidence that they are nationals of Vietnam and of no other country, as are Applicant 1 and Applicant 2’s parents. Applicant 1 and Applicant 2 have demonstrated they speaks Vietnamese, the official national language of Vietnam.[173]
[173] United States Government, Central Intelligence Agency (CIA), The World Factbook, Vietnam, available at: .
Applicant 1 provided to the Department a certified copy of the biodata page of a passport purporting to have been issued to him by the Vietnamese authorities in Vietnam on 1 October 2012. This document bears a photograph of a person bearing a true likeness to Applicant 1.
100. Applicant 2 provided to the Department an uncertified copy of the biodata page of a passport purporting to have been issued to her by the Vietnamese authorities in Canberra on 8 August 2014. This document bears a photograph of a person bearing a true likeness to Applicant 2.
101. An uncertified copy of a birth certificate issued pursuant to the Births Deaths and Marriages Registration Act 1996 (VIC) for Applicant 3, listing Applicant 1 and Applicant 2 as parents, was provided to the Department. Article 15 of the Law on Vietnamese Nationality (No. 24/2008/QH12) states that a child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens, has Vietnamese nationality.[174]
[174] Law on Vietnamese Nationality (No. 24/2008/QH12), Socialist Republic of Vietnam (Government), 13 November 2008, pp.4-5, 20210203103648.
102. On the evidence before it, the Tribunal find that each of the applicants is a national of Vietnam and no other country and that Vietnam is their only receiving country for s 36(2)(a) and (aa) of the Act.
Home area
103. Judicial authority states that decision-makers must assess, on the material before her or him, the place or places to which an individual is likely to return, and that the first step of the decision-maker’s assessment is to make findings about, at least, one of those places.[175]
[175] CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 per Tracey, Mortimer and Moshinsky JJ at [45].
104. On the material before it the Tribunal finds, if the applicants were to reside in Vietnam, they would reside together as a family in the area of Vietnam covering their respective adjacent home provinces, Ha Tinh Province and Nghe An Province. The Tribunal finds there is no other location within the country where it is likely that they will reside now or in the reasonably foreseeable future.
Claims before the Department
105. The Tribunal has had regard to the discrepancies between Applicant 1 and Applicant 2’s claims in writing before the Department and those advanced before the Tribunal. The Tribunal accepts as credible the explanations provided for their respective statutory declarations sworn on 21 March 2024 and does not give this any adverse weight.
Viet Tan
106. The Tribunal notes the significant volume of evidence submitted purporting to demonstrate that Applicant 1 and Applicant 2 are recognised as members of Viet Tan by that organisation and that they have been active in this capacity in Australia for a number of years. At the hearing on 4 April 2024, they gave consistent evidence in relation to those activities and their commitment to the objectives of Viet Tan. The Tribunal finds Applicant and Applicant 2’s evidence in this regard to be credible.
107. The Tribunal accepts on the evidence before it that Applicant 1 and Applicant 2 are members of Viet Tan and are genuinely committed to advocating for a democratic Vietnam through peaceful and political means. The Tribunal also accepts they have both been active in these roles and that their activity in this regard has been publicly documented by media outlets, on social media and on the official Viet Tan website, and in a way that identifies them personally. Further, the Tribunal accepts that Applicant 1 has in recent years undertaken [ a role] or the [social media] page of the Viet Tan Australian chapter [social media] page, and that his name and profile appear as author of its posts on its publicly accessible [social media] page. The Tribunal also accepts that he has been tasked with recruiting new members from the Vietnamese diaspora.
108. The Tribunal has had regard to country information regarding the sensitivities in advocating for democratic reform in Vietnam, related online activity and that confirming Viet Tan has been listed as a terrorist organisation by the Vietnamese government. Having regard to country information, the Tribunal accepts that Applicant 1 and Applicant 2’s membership of Viet Tan and related activity in Australia has been documented publicly in a way such that it is more likely than not that the Vietnamese authorities would be presently aware of it or would become aware of it in the reasonably foreseeable future.
109. Having accepted Applicant 1 and Applicant 2 are ideologically committed to Viet Tan and its principles, the Tribunal accepts their evidence that they would continue similar activities on return to Vietnam.
110. Following this, the Tribunal finds there is a real chance Applicant 1 would suffer serious harm on return to Vietnam now or in the reasonably foreseeable future. Similarly, the Tribunal finds there is a real chance Applicant 2 would also suffer serious harm on return to Vietnam now or in the reasonably foreseeable future. Having regard to country information, the Tribunal finds the harm that Applicant 1 and Applicant 2 are at a real chance of suffering on return to Vietnam would include the following perpetrated by State agents operating in an official capacity: a threat to their life or liberty; significant physical harassment; and/or significant physical ill treatment. Following this the Tribunal finds the harm they are at a more than remote risk of suffering in Vietnam amounts to serious harm for s 5J(4)(b).
111. The Tribunal finds for s 5J(4)(a) that the essential and significant reason for harm they face would be their political opinion, and for s 5J(4)(c) that the harm would amount to systematic and discriminatory conduct. As the source of the harm is the State, the Tribunal finds for s 5J(2) there are not effective protection measures available to Applicant 1 and Applicant 2, having regard to s 5LA(1). Finally, the Tribunal finds that the real chance of persecution for both those applicants relates to all areas of Vietnam.
112. Further and in the alternative, having accepted their ideological commitment to Viet Tan, the Tribunal finds that even if they would choose to act discreetly or modify their Viet Tan or other similar activities on return, the Tribunal finds that in their particular circumstances they would only do so to avoid a real chance of persecution if they did not.[176] Further, the Tribunal finds for s 5J(3) that any modification in this regard would require Applicant 1 and Applicant 2 to alter their political beliefs or conceal his or her true political beliefs.[177]
[176] See: Applicant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, per McHugh and Kirby JJ.
[177] s 5J(3)(c)(iii).
113. The Tribunal finds on the totality of evidence before it that there is a real chance that Applicant 1 would be persecuted on return to Vietnam now or in the reasonably foreseeable future, and that their fear of persecution in Vietnam is well-founded.
114. The Tribunal also finds on the totality of evidence before it that there is a real chance that Applicant 2 would be persecuted on return to Vietnam now or in the reasonably foreseeable future, and that their fear of persecution in Vietnam is well-founded.
Catholic religion
115. The Tribunal accepts on the evidence before it that the applicants are practicing Catholics and active members of the Catholic church in Australia. It also accepts on the evidence before it that Applicant 1 and Applicant 2 were active members of the Catholic church in Vietnam and in that capacity they participated in public events that might be perceived by the Vietnamese authorities to be critical of the government. It also accepts that Applicant 1’s family members in Vietnam have engaged in public activities in opposition to the Vietnamese authorities.
116. The Tribunal also accepts on the material that Applicant 1 and Applicant 2 would continue to be active in the Catholic community on return to Vietnam, including by attending public events, some of which might be perceived by the local authorities as being critical of the government. However, given the Tribunal’s other findings, it does not consider necessary to consider this issue further.
Applicant 3
117. The Tribunal has considered Applicant 1 and Applicant 2’s oral evidence regarding the harm suffered by the children of Tran Thi Nga and Nguyen Ngoc Nhu Quynh for reason of their mothers’ adverse profiles and criminal punishments in Vietnam, and their similar fears for Applicant 3. The Tribunal considers this evidence not to be inconsistent with country information, including that in relation to those individuals, and more generally. The Tribunal accepts that Applicant 3’s birth has not been registered with the Vietnamese authorities, and he has not otherwise been issued any identity documents by that government.
118. Having regard to country information, Applicant 1 and Applicant 2’s evidence and the Pre-hearing submissions, the Tribunal finds there is a more than remote risk that Applicant 3, on return to Vietnam, would be denied access to a birth certificate and other government identity documents for a significant period, and during that period Applicant 3 would be denied access government services, including health care and education. On the material before it the Tribunal also finds there is a more than remote risk that Applicant 3 would face a threat to his liberty in the form of brief periods of house and other forms of interim detention, and that during those times he may be separated from other family members.
119. Section 5J(5) of the Act provides a non-exhaustive list of the type and level of harm that will amount to serious harm for s 5J(4). These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in s 5J(4)(b) by way of an aid to their application.[178] The Tribunal notes that, with the exception of s 5J(5)(a), each of the other paragraphs describe an instance of serious harm by reference to an adjectival or circumstantial qualification (‘significant’ or ‘threatens capacity to subsist’). Despite any such express qualification in paragraph (a), the High Court confirmed in WZAPN[179] that s 5J(5)(a) also requires a qualitative judgment, involving the assessment of matters of fact and degree.[180] The Tribunal has also had regard to the non-exhaustive nature of ss 5J(5), and what Professor James Hathaway explained, the Convention left the expression of "persecution" undefined because of the impossibility of enumerating in advance all of the forms of maltreatment that might legitimately entitle persons to benefit from international protection.[181]
[178] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.
[179] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610.
[180] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610 at [41], [51].
[181] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd edition, 2014) at p182.
120. Finally, the Tribunal has also considered Australian judicial authority stating that when assessing whether harm, including cumulative instances of harm, amounts to serious harm persecution, all relevant personal circumstances of the applicant must be taken into account, not limited to the applicant’s age and frailty.[182]
[182] AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 per Moshinsky J at [35]. See also:
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ at [153]; SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 per Tamberlin J at [21]; and SZBBP v Minister for Immigration [2005] FMCA 5 per Driver FM at [35].
121. Considering the collective risk of the kinds of harm identified above in concert with the applicant's personal attributes as a young child, the Tribunal finds on the material before it that there is a real chance that Applicant 3 would suffer serious harm in Vietnam now or in the reasonably foreseeable future.
122. The Tribunal is satisfied on the material before it and the terms of s 5L that the particular social groups ‘family’ and ‘undocumented children’ exist in Vietnam, and that Applicant 3 would be perceived by members of Vietnamese society to be a member of both. With respect to the particular social group ‘his family’, the Tribunal finds s 5K does not apply in these circumstances following the findings above regarding his parents. The Tribunal finds for s 5J(4)(a) that the essential and significant reasons for harm Applicant 3 faces would be his membership of the particular social groups ‘his family’ and ‘undocumented children’. The Tribunal also finds for s 5J(4)(c) that the harm would amount to systematic and discriminatory conduct.
123. The Tribunal also finds on the totality of evidence before it that there is a real chance that Applicant 3 would be persecuted on return to Vietnam now or in the reasonably foreseeable future, and that their fear of persecution in Vietnam is well-founded.
CONCLUDING FINDINGS
124. For the reasons given above, the Tribunal is satisfied that Applicant 1, Applicant 2 and Applicant 3 are persons in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
125. In respect of Applicant 1 (1806391), the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
126. In respect of Applicant 2 (2011912), the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
127. In respect of Applicant 3 (1806391), the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Gregory Hanson
MemberATTACHMENT - 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.
…
20231107113824.
Conducted between 23 February and 1st March 2019; Published: 9 September 2019, at p47.
Arrests and Activist’s Trial Show Hanoi’s Determination to Silence Critics
, 20220111094403; 'Religious leaders ask US to sanction Vietnamese government
officials', Radio Free Asia (RFA), 22 May 2023, 20230523161823; Union of Catholic Asian News (UCAN News), Vietnam releases Christians, asks to abandon faith, 7 November 2023, 20231213071538
vanbanphapluat.co, 20 November 2014, pp.3, 5, 20210216145551.
vanbanphapluat.co, 20 November 2014, pp.7-9, 20210216145551.
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