1806822 (Refugee)

1806822 (Refugee) [2022] AATA 5158 (20 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  [Mr C]
CASE NUMBER:  1806822
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mary Sheargold
DATE:20 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 20 December 2022 at 3:27pm
CATCHWORDS
REFUGEE – protection Visa – Vietnam – member of a particular social group –membership of applicant’s extended family –family’s anti-communist views – political opinions – pro-South Vietnamese, anti-communists – there is a real chance that the applicant will suffer serious harm – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2

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

[Mr A], referred to in this decision as [Mr A], is a [age] year old Vietnamese national. His daughter, [Ms B] ([Ms B]), is[age] years old and is also a Vietnamese national. They came to Australia on [date] January 2017 holding a visitor and a student visa respectively. [Mr A]’s older brother, [Mr C] (referred to as [Mr C]), came to Australia as a refugee in 1994, and when [Mr A] and [Ms B] first arrived in Australia, they came to Melbourne where [Mr C] lived. [Ms B] settled in Adelaide and completed [a grade] before returning to Melbourne for her Victorian Certificate of Education, while [Mr A] tried to find work in Sydney. Today, they both live in Melbourne, subletting a single room in an apartment. [Ms B] has completed a university degree, and [Mr A] is working in a factory. [Mr A]’s wife and son, [Ms B]’s mother and brother, remain in Vietnam.
Shortly after arriving in Australia, [Mr C] helped [Mr A] and [Ms B] to make their applications for protection visas. They filed their applications on 19 April 2017. On 20 February 2018, pursuant to s 65 of the Migration Act1958 (Cth) (the Act), the delegate refused to grant their visas.
[Mr A] and [Ms B] appeared before the Tribunal 3 times. Although [Mr C] is the applicants’ representative on record, given his intent to appear as a witness in this hearing, Mr Anthony Krohn of counsel represented the applicants through the hearing process. The first hearing was held on 8 August 2022, but was adjourned to a later date due to the unavailability of the Vietnamese interpreter. On 22 September 2022, the Tribunal resumed the hearing, but it was terminated immediately due to Mr Krohn raising an objection to the use of the particular interpreter present on that day. Mr Krohn’s objection was raised on instruction from the applicants and [Mr C], citing an apprehended bias due to the interpreter’s different Vietnamese ethnicity.
Eventually, the balance of oral evidence was gathered from [Mr A] and [Ms B] on 9 September 2022, where they appeared in a combined hearing with [Mr A]’s younger sister, [Ms D] ([Ms D]) and her family. to give evidence and present arguments. The Tribunal also received oral evidence from [Mr C], and at the first hearing, oral evidence was received from [Mr E], a family friend. Each Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. For completeness, the Tribunal notes that a different interpreter provided interpreting service at each hearing.
As noted above, the applicants were represented in relation to the review. Somewhat questionably, [Mr C] has acted as [Mr A]’s and [Ms B]’s solicitor throughout the application and review process. [Mr C] retained Mr Anthony Krohn of counsel to appear on behalf of the applicants at each hearing. Mr Krohn provided a detailed post-hearing submission in support of these applications and in support of the applications for [Ms D]’s family.
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 Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Vietnam most recently revised and published on 11 January 2022.
CONSIDERATION OF Claims and evidence
Receiving country
[Mr A]’s and [Ms B]’s Vietnamese nationality is not in issue. They have provided the Department and the Tribunal with copies of their passports issued by the Immigration Department, Socialist Republic of Vietnam. [Mr A]’s passport was valid from [2008] to [2018], and [Ms B]’s was issued [in] 2016, valid until [2026]. The Department accepted their claimed nationality and identity shown in their passports, as does the Tribunal. The Tribunal finds that Vietnam is the applicants’ receiving country for the purposes of assessing their protection claims.
Relevant background, claims and evidence
Both [Mr A] and [Ms B] claim to fear persecution by the Vietnamese government on the basis of their membership of a certain social group, being their particular family, as well as their political opinions. [Mr A] claims that he has faced systemic discrimination from the time the Vietnamese Communist Party took control of the south of Vietnam in 1975 on the basis that his relatives fought against the regime and that his family history puts him in direct focus of the VCP. [Ms B]’s claims are based on the same premise, being that her father’s family history leads her to fear persecution should she return to Vietnam. She also raised concerns regarding her safety returning to Vietnam as a single woman.
Credible witnesses
The Tribunal spent a considerable period of time collecting oral evidence from [Mr A] and from [Ms B]. Having had an opportunity to question them over several hearings, the Tribunal can remark on the spontaneous yet consistent nature of their evidence. While [Mr A] presented as somewhat embittered regarding his perceived lost opportunities in life, he nonetheless maintained a measured demeanour and demonstrated rational and logical thought processes. His explanations to any concern I raised regarding the veracity of his personal narrative were met with calm, measured, and logical responses. His evidence was highly persuasive. My assessment is that both [Mr A] and [Ms B] gave honest, truthful, and considered responses to my questions. They articulated their fears stemming from past experiences in Vietnam as well as their reservations regarding their safety if they were to return.
In particular, the obvious anguish both the applicants feel having left half their family in Vietnam, where [Ms B] has not seen her mother or younger brother since she was a child, gave comfort to the Tribunal in assessing the genuineness of both applicants’ fears. Coupled with the evidence collected from [Mr E] at the first hearing, and from [Mr C] at the third hearing, I was left in no doubt that both [Mr A] and [Ms B] had provided me the most honest recollection of their lives and experiences living in Vietnam as they were able to. By the end of the hearing, I made clear to all the applicants that I believed what they had told me and that their credibility as witnesses was not in issue.
Personal narrative - [Mr A]
[Mr A] was born in Quy Nhon, Binh Dinh province in southern Vietnam on [date]. He was the second of 5 children in his family and the second son. His brother [Mr C] was born in [year]. His 3 [siblings]. [Mr A] described his early childhood as normal and happy, but that everything changed when he was [age], after the VCP forcibly occupied the south of Vietnam and had taken control of the country. [Mr A] gave evidence that his maternal grandfather, as well as 2 maternal uncles and 2 paternal uncles, were all the ‘victims of communism’, that is, they were allegedly killed by the VCP due to their affiliation with the former regime in South Vietnam and for their anti-communist views. [Mr A] provided particularly graphic details regarding the death of one of his mother’s brothers, and that story was corroborated by [Mr E] in his oral evidence.
[Mr A] described his [number] years in Vietnam between 1975 and 2017 as ‘living in hate’ and oppression. He recalls being unable to say things that he wanted to say, citing the deaths of family members outlined above. [Mr A] told me that because his relatives had been involved in anti-communist activities, the VCP had included information to the effect that his immediate family were involved in the anti-communist regime into his family statement. [Mr A] said that the evidence in the family statement would be and had been used to stop [Mr A] from studying, amongst other things.
The evidence presented at the hearing is that [Mr A]’s father was sent to a re-education camp in the early years of the VCP regime, and that his mother had to sell vegetables on the street to make money to feed the family. [Mr A] described the extreme poverty that his family faced while his father was not at home, and the difficulty the children had as a consequence. [Mr A] said that they were routinely the victims of ‘racism’ at school, which I presumed to mean they were treated differently due to their family’s anti-communist views.
It was with a great deal of despair and frustration, as well as pride, that [Mr A] told me about his education. That he was a gifted student is not in dispute. He excelled in all areas including mathematics. His earliest memories of direct discrimination due to his family history stem from his schooling. [Mr A] told me about an instance where he qualified to participate in a national mathematics competition, only to be told the day before he was due to travel that he was not allowed to go anymore because his results so far that year were not good enough. This was in 1985, when [Mr A] was in his second-to-last year of school. Towards the end of his evidence, [Mr A] told me that he had met with his maths teacher from 1985 in 2014, when he and his friends attended a celebration on 1 January 2014 to mark this teacher’s retirement. [Mr A] said that at that meeting, his teacher took him aside and apologised for not allowing [Mr A] to go to the competition, stating that he had been visited by the police who told him not to allow [Mr A] in the school’s team, and to make up a reason why.
[Mr A] explained that his final school mark was 22.5 and that he intended to study medicine. The required score for entrance to university to study medicine was 19; 12 if your family were VCP members. [Mr A] was denied entry to university on multiple occasions despite his outstanding results. He worked with his father as a [Occupation 1] until, after several years of ‘failing’ university entrance exams, he found a place in a [university] and trained as a [Occupation 2]. But even then, he found it difficult to secure a position in a [workplace]. [Mr A] worked as a [Occupation 2] as well as a [Occupation 1] to help support his family. [Mr A] spoke at length about the various overt and indirect discrimination he faced in terms of building his career and attaining valuable employment. The Tribunal accepts [Mr A]’s evidence regarding his school results and his difficulty in obtaining a place at university to follow his dream of becoming a doctor.
[Mr A] told me that when he met his wife, her family did not approve of their match due to [Mr A]’s family history and anti-communist views. He met his wife in Saigon, where he had relocated looking for labouring work, and they were working together on a construction project. He said that eventually, her family realised he was a kind and decent person who treated their daughter well, and he was accepted. [Mr A] and his wife had two children, [Ms B], and a son called [name]. [He] is now [age] years old. His wife and son live with [Mr A]’s mother in Quy Nhon.
A major focus of [Mr A]’s evidence to the Tribunal was the reasons he had not sought asylum in Australia until 2017, noting that [Mr C] had been in Australia for over 20 years by that point. [Mr A] told me that [Mr C] fled Vietnam as a refugee in the late 1980s and was ultimately resettled in Australia in 1993. [Mr C] had tried to escape in 1986 but was captured and sent to a new economic zone in the jungle. Eventually [Mr C] did escape, spending time in Asia before he came to Australia.
I asked [Mr A] why he did not go with [Mr C], and he said that his father would not permit them to leave together. One son needed to remain to care for their parents. [Mr A] says his father thought [Mr C] to be the more cunning and skilful brother; he worried that [Mr A] would make a misstep and be caught. [Mr A] did in fact attempt to escape Vietnam in 1991, but he was caught and was put in jail for his attempt to flee.
[Mr A] gave evidence that throughout his adult life, he had been taken in for questioning by the Vietnamese authorities. He told the Tribunal that he had been badly beaten on several occasions. The most memorable experience, and clearly most traumatic experience for [Mr A] was the final time he was taken in for questioning, in December 2016. [Mr A] recalled that he was riding his taxi bicycle and that a plain clothed police officer approached, stopped [Mr A] at the kerb, and asked him to follow him to the nearby police station.
[Mr A] said he recognised the police officer’s face, because he is the officer who invited [Mr A] to be interviewed in the police station many times before. [Mr A] said that on all his previous visits to the police station, he had been taken to the common room for civil questioning. On this occasion, he was led to some cells holding detainees, then onto a room containing a table and 2 stools. The officer put weapons and handcuffs on display and [Mr A] recalls feeling threatened. He says the officer sat down, so [Mr A] started to sit, but the officer suddenly kicked [Mr A] and asked him who said he was allowed to sit.
According to [Mr A], the officer said that [Mr A]’s legs must be very strong because he can go to demonstrations, he can run, so how could he get tired sitting? [Mr A] recalls being told that once he came to this room, no one would know he was there, his family would never know, and that no one knows [Mr A] is there now. [Mr A] says the officer threatened him, saying that [Mr A] would get out of the room or he would not, who knows. [Mr A] says he was asked a series of questions as he usually was asked, such as why do you keep going to demonstrations, why do you not stay and work like a normal person, how is your brother overseas, and why are you involved in activity against the government. [Mr A] says he was questioned for about an hour before the officer released him with a ‘gruesome’ warning that if [Mr A] continued to be involved in demonstrations and doing unlawful things, ‘you know what will happen to you.’ [Mr A] says he was extremely distressed and frightened by this encounter. [Mr A] said that it was after this final encounter with the Vietnamese police that he thought if he did not escape, his whole life would be miserable and hard.
[Mr A] says he knew he needed to leave Vietnam for good. In 2008, he was able to obtain a passport for himself, but he told me that in order to be granted his passport, he had to bribe an official with VND1,000,000. The usual cost for a passport at that time was VND20,000. He told me that it was easier to obtain [Ms B]’s passport because he was able to send his wife to do that, and she did not have difficulty with that application. [Mr A]’s wife and son do not hold passports. [Mr A] said that once he had a passport for [Ms B], he worked with [Mr C] on a plan to get to Australia. [Ms B] was able to obtain a student visa to complete high school in Australia, and [Mr A] was granted a visitor visa to enable him to accompany her on the trip and to help settle her into school.
[Mr A] became very emotional describing to me his departure from Vietnam. He told me this story at two separate hearings, and his recollection was not identical, but it was very similar. [Mr A] said that when they were at the airport and they came to the passport control point, he was very nervous and shaky. He placed [Ms B]’s passport and boarding pass on top of his. The police called them forward to have their documents checked. [Ms B] was whisked through quickly, but [Mr A] was made to wait. [Mr A]’s recollection is that the officers considered his passport very carefully. The airport was extremely busy due to the imminence of Lunar New Year celebrations. [Mr A] says he was taken aside and another officer looked over his documents. Serendipitously, a computer glitch occurred, and the officer took pity on [Mr A] and flagged him through, urging him to “go! Go! Just go!”. [Mr A] said that when their flight landed in [a city], he cried and hugged [Ms B] and told her they had escaped.

While [Mr A] has been in Australia, he has worked with [Mr C] and has become outspoken on social media regarding the VCP and the realities of life in Vietnam. [Mr C] gave evidence that while he could travel freely to and from Vietnam until 2012, after that time he has not been permitted to enter Vietnam. On his last trip to Vietnam, he was turned back at the airport. [Mr C] believes this is due to his raised profile as an anti-communist. It is clear to the Tribunal that [Mr A] is passionate regarding his activities writing about his beliefs of the human rights injustices occurring in Vietnam today. [Mr A] told the Tribunal that his mother, wife, and sisters have been visited for questioning by the police as a result of [Mr A]’s and [Mr C]’s writings.
Personal narrative - [Ms B]
Being only [age] years old when she left Vietnam, and aged just [age] at the time of this decision, [Ms B]’s personal story is naturally more brief than her father’s. [Ms B] told me that when she lived in Quy Nhon, she attended school with her friends, but that sometimes her parents would get behind paying her school fees. She said that if her parents were a month or more in arrears, that she would be asked to leave some teachers’ classes. She recalled feeling humiliated by this experience.
[Ms B] also remembered her father being called to the local police station. She says that he would leave as his normal self, but return to the household bleeding and unable to work for several days. [Ms B] remembers that when this happened, her mother would be the only person able to bring in income, and this meant they did not always have enough money for food.
[Ms B] told me she was excited by the idea of coming to Australia to study and to learn a new language. She told me that she did not cry the day she left her mother and her brother in Vietnam because she was excited about her adventure and had thought she would be returning to visit them during school holidays. She says she did not realise she would not be seeing them again.
When [Ms B] came to Australia, she completed a year of schooling in Adelaide, where she lived in a homestay, while her father looked for work in Sydney. They returned to Melbourne the following year and she completed her Victorian Certificate of Education at [a] College. She has studied for a [degree], and she aspires to study a [higher degree]. [Ms B] told the Tribunal that her father’s health has been poor and so she needs to consider how to raise the funds for school fees, and that she could get work as a [assistant].
[Ms B] told me she believes that she is sure she will not find a job if she returns to Vietnam, citing her inevitable family background check. She says she does not want to serve the VCP or Vietnam. She worries that if she returns to Vietnam with her father, they will be separated and questioned individually. Drawing on her lived experience of the physical harm she watched her father endure when he returned from being questioned by the police, [Ms B] described her fear for her own safety during questioning. She believes she will be imprisoned in Vietnam due to her anti-communist views and the work her father and uncle have been doing in Australia.
Summary
I have found [Mr A] and [Ms B]’s descriptions of their lived experiences to be recalled honestly and to the best of their knowledge. I accept all of their claims regarding their family history, their family composition, and their personal experiences in Vietnam. The Tribunal is satisfied that [Mr A] has demonstrated a lifelong history of discrimination in Vietnam and that [Ms B] has borne witness to the physical abuse he has suffered at the hands of the Vietnamese authorities.
Well-founded fear of persecution in the future
Given these findings about [Mr A]’s and [Ms B]’s past experiences in Vietnam, and their current circumstances, it is necessary then to consider whether their claims amount to a well-founded fear of persecution as defined in s 5J(1) of the Act. To make this assessment, the Tribunal has considered the Refugee Law Guidelines and DFAT Country Information Report for Vietnam with a particular focus on the situation for persons from families with anti-communist sentiments and for political activists.
For the reasons set out below, the Tribunal finds that each of [Mr A] and [Ms B] has a well-founded fear of persecution by the Vietnamese authorities on their return to Vietnam on the basis of their membership of [Mr A]’s extended family and on the basis of their political opinions. Because the Tribunal is satisfied that [Mr A] and [Ms B] have a well-founded fear of persecution for these reasons, it is not necessary to make additional findings regarding the risk for [Ms B] returning to Vietnam as an unmarried woman.
The Tribunal has considered the DFAT Country Information Report about the treatment of relatives of persons who were involved in the Vietnam War, as well as political activists and dissidents in Vietnam and the issues were discussed with [Mr A] and [Ms B] during the hearing. Relevantly, in relation to persons whose relatives were involved in the Vietnam War, DFAT’s report states:
[3.108] Some asylum seekers claim that their relatives (often a grandparent) were involved in the Vietnam War in support of South Vietnam and that they face continuing discrimination as a result. In-country sources told DFAT that some subtle discrimination may exist, for example in educational opportunities, but others told DFAT this was previously the case but is no longer true. Alleged discrimination may relate to an inability to join the CPV where party members might have access to opportunities through their connections that others do not have. Experiences in small communities might be different where unwritten laws and customs may cause some low-level discrimination. The yellow and red flag of the former country of South Vietnam is sensitive and cannot be displayed publicly.
[3.109] On the balance of available evidence, DFAT assesses that discrimination against the relatives of people who were involved in the Vietnam War, if it is exists at all, is low level. DFAT does not rule out the possibility of such discrimination, but is not aware of a strong pattern of such behaviour. The situation would be different for a person who has political opinions that favour a South Vietnamese or pro-American identity, in which case see Political Opinion (Actual or imputed).
(emphasis added)
Given the extent of the direct evidence available to the Tribunal regarding the treatment of [Mr A]’s grandfather and uncles, as well as his father, it is reasonable for the Tribunal to conclude that [Mr A] and [Ms B] do fall into this minority category of pro-South Vietnamese, anti-communists. Relevant sections of DFAT’s report regarding political opinions state:
[3.49] Vietnam is a one-party state and opposition parties are effectively illegal. Threats to [Vietnamese Communist Party] legitimacy are seen as threats to the state and are not tolerated.
[3.52] The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information…opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
[3.53] Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
[3.55] Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
[3.56] Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
[3.57] It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
Specifically, in relation to online activism including use of social media, DFAT states that:
[3.61] Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.
[3.62] Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
[3.64] It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.
(emphasis added)
[Mr A] and [Ms B] responded to the information available by confirming their belief that rights such as freedom of speech, freedom of religion and freedom of association are not enshrined in practice. [Mr A] says he feels it is his duty to be outspoken regarding the regime in Vietnam, and that he believes that even when using pseudonyms for his online activities, the Vietnamese authorities are tracking his posts. He believes this due to the coincidence of visits by the authorities to his family members after these posts are made.
[Mr A] and [Mr C] have provided a body of evidence of their written and published articles, featured online and in hard copy that are distributed worldwide. They have also provided examples of social media posts that [Mr A] has made in recent times. The Tribunal accepts [Ms B]’s evidence that while she strongly supports her father’s anti-communist work, she does not act as an outspoken or prolific user of social media.
Section 5J(6) of the Act states that:
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.
The Tribunal has carefully considered whether [Mr A]’s activities in Australia have been engaged in for the purposes of furthering his protection claims. As set out above, [Mr A] presented as staunchly anti-communism and anti-VCP. It is clear that he is deeply affected by the direct impact being known to be anti-communist can have, and he has demonstrated his lifelong being singled out and/or excluded while in Vietnam as the root cause of his desire to speak freely against the regime from the safety of Australia.
The continuous commitment [Mr A] has demonstrated across his life to demonstrating in support of South Vietnam and the injustices for persons who do not support the Communist regime is not consistent with a suggestion that his activities in Australia have been engaged in order to strengthen his claims to be a refugee. Accordingly, the Tribunal is satisfied that [Mr A] engaged in this conduct other than for the purpose of strengthening his claim to be a refugee.
The Tribunal finds that [Mr A] and [Ms B] come from a family of pro-South Vietnam, anti-communist fighters whose family statement has for a long time recorded those views. The Tribunal accepts that [Mr A] has been directly affected by this labelling in every facet of his life to date, as has [Ms B]. It is not surprising that with this background, both [Mr A] and [Ms B] hold strong anti-communist views themselves.
The Tribunal accepts [Mr A]’s recollection of the facts regarding his departure from Vietnam, where he was held up and his documentation considered carefully, before an officer hurried him along at an opportune moment where the computer system was not operating as it should have. [Ms B] corroborated her father’s recollection saying she was very scared while she waited on the other side of the passport control point, not sure if her father would follow her through. Neither [Mr A] nor [Ms B] has attempted to return to Vietnam since they arrived in Australia. The Tribunal accepts that [Mr C] was denied entry to Vietnam in 2013.
Having considered the country information alongside the oral evidence given at the hearing, the Tribunal accepts that because [Mr A] and [Ms B] are known to the authorities as members of an anti-communist family, and that [Mr A] has also become known to the authorities for his political opinions, then there is a real chance they will each face persecution if they return to Vietnam due to their family connections and their political activities in Australia.
Therefore, the Tribunal is satisfied that both [Mr A] and [Ms B] would be persecuted by the Vietnamese authorities because of their membership of a known anti-communist family and because of their strong anti-communist political opinions, and that each of them would face a real chance of serious harm if they returned to Vietnam in the foreseeable future, and that they harm would be systemic and discriminatory. The Tribunal finds that the applicants’ membership of a known anti-communist family, whose anti-communist opinions are shared by the applicants, is the essential and significant reason for the persecution and that there is a real chance that each of them would be arrested, charged, prosecuted and imprisoned as a consequence.
The Tribunal finds further that the real chance of persecution extends to all areas of the receiving country. Based on the evidence before it, the Tribunal finds there are no effective protection measures available to either [Mr A] or [Ms B] in Vietnam.
For these reasons, the Tribunal accepts that there is a real chance each of [Mr A] and [Ms B] will face serious harm from the Vietnamese authorities for reasons of their membership of a known anti-communist family, and their political activities both on social media and in Australia.
Accordingly, the Tribunal finds that both [Mr A] and [Ms B] meet the criteria in s 5J of the Act and finds that each of them is a refugee within the meaning of s 5H(1)(a) of the Act.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Mary Sheargold
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 5158

20 December 2022

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