1811496 (Refugee)

1811496 (Refugee) [2023] AATA 2466 (5 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Alan Nguyen
CASE NUMBER:  1811496
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Mary Sheargold
DATE:5 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 May 2023 at 3:02pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – anti-Communist – family’s involvement with the Republic of Vietnam army – genuine personally held fear – whether fear is well-founded – obtained new passport – particular social group – single women and divorcees – psychological harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 30 January 2017. She had travelled to Australia to spend time with relatives and to sightsee on 7 separate occasions before arriving in Australia [in] September 2015 holding a Subclass 600 visitor visa. The applicant has also made 4 return trips from Vietnam to [Country 1] between her trips to Australia. Her husband and one son remain living in Vietnam, and her other son has migrated to Australia.
The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
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
The applicant’s Vietnamese nationality is not in issue. She has provided the Department and the Tribunal with copies of her passports issued by the Immigration Department, Socialist Republic of Vietnam. Her most recent passport was issued [in] 2022 and expires [in] 2032. The Department accepted her claimed nationality and identity shown in her passport, as does the Tribunal. The Tribunal finds that Vietnam is the applicant’s receiving country for the purposes of assessing her protection claims.
Relevant background, claims and evidence
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The mere fact that a person claims fear of persecution for a particular reason does not in itself establish the genuineness of that asserted fear. While an onus of proof is not imposed on an applicant in administrative inquiries and decision making, an applicant must nonetheless supply all the relevant facts surrounding their individual case, in as much detail as is necessary, to enable the decision maker to establish the relevant facts. A decision maker is not required to make an applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all allegations made by an applicant: MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
The applicant provided a page of handwritten claims with her application, set out in Vietnamese, with a translated copy written by [named individual], an accredited translator in the Vietnamese and English languages. The applicant stated:
I, [the applicant], Date of birth: [date]- place of birth: Ben Tre- VN, am writing this application to the Australian government and Department of Immigration to allow me to remain in Australia. Since I was little until I grew up, when the communist government came into power, during those years my family was seeking ways to escape to another country. My older brother who served in the Army of the Republic of Vietnam in Division [number] was sent to the re-education camp, my family was arrested while attempting to escape, all of our assets were seized by the communist government and we were jailed therefore we were bullied and harassed by the communist government. I was living in fear over the days and months as I had my older brothers and sisters and relatives who served in the army of the Republic of Vietnam, who fled the country therefore the government caused more problems to my family, I myself could not do any business as I was arrested for anything I did, I tried hard to manage for my son to come to Australia to study so that he can remain in Australia. Because I go to America and Australia for a holiday, I see that the Australian government is very humanitarian, takes care of citizens as their own biological children, values life of each individual person, even animals, my son who comes to study in Australia also doesn't want to return to Vietnam as he lived in fear under the ruling regime of the Vietnamese communists with no human rights but bullying and harassment, I am writing this statement to the Australian government and Department of Immigration wishing that you could help me to remain in Australia. I sincerely thank you.
From this, it is apparent that the applicant’s central claim is that she fears harm in Vietnam because of her actual, or imputed, political opinion being anti-Communist due to being a family member of those who fought in the Republic of Vietnam army during the Vietnam War. The applicant has not made any direct claims regarding front line action against the Communist regime. However, it is reasonable to impute an anti-Communist political opinion on the facts presented.
The applicant was not interviewed by the delegate prior to the refusal decision being made. The delegate’s assessment was that the applicant was not a person of interest to the Vietnamese authorities and cited examples such as the ease with which she obtained a passport and the fact that she was allowed to leave and return to Vietnam 11 times in the space of 14 years as part of the basis for finding that she did not have a well-founded fear of persecution in Vietnam.
On 22 July 2022, the applicant’s representative provided a further written statement emphasising the applicant’s claims made at the time of application for the visa. This document comprised a typeset English translation of handwritten Vietnamese notes that had been photographed by the applicant. The documents were translated by a NAATI accredited translator. Her statement can be summarised as follows:
·before 1975, she lived under the regime of the Republic of Vietnam. After the Vietnamese Communist Government occupied South Vietnam, her family were treated as enemies. They were sent to new economic zones, some family members were jailed, and many had their assets (including housing, money, and gold) confiscated;
·her family was oppressed and prevented from participating in political activities, and that their attempts to escape Vietnam all failed, which led to further suppression by the Communist regime;
·she was personally hassled by the local Communist authorities in her everyday living, her safety and freedom were always threatened, her going about was being watched and restricted, and that she always felt scared that they would knock on her door at night at taking her out for any reasons she never knew of;
·there are no human rights in Vietnam, and that those involved in the former Republic of Vietnam regime are treated like enemies of the state; they were restricted from certain types of work, unable to be involved in politics, denied opportunities for further studies and were unable to take up any high-ranking positions in society;
·the Communist government runs the country as a police state;
·even though she has left Vietnam a long time ago, the local Communist authorities have come back and forth to threaten and hassle her family, and that she cannot return now because she fears she will be put in jail and her life will be at risk;
·she has experienced every hardship in Vietnam and is still not able to live a peaceful life there; and
·she finds herself worried every day because if she goes back to Vietnam, she would be locked up in prison, and tortured physically and mentally “under the inhuman cruellest hands of the Communists.”
Unfortunately, no supporting evidence was provided to assist in substantiating any of these claims. At the hearing, the Tribunal was able to gather evidence regarding the applicant’s family and her life experiences in Vietnam. The applicant is well-travelled, having made 8 separate trips to Australia as well as 4 to [Country 1]. The applicant told the Tribunal that any time she can apply for a visa to leave Vietnam, she does. She explained that she always feels much happier when she visits Australia (or [Country 1]) than she feels when she is in Vietnam, because she does not have to fear harm from the government here. She told the Tribunal that one of her [number] sisters had emigrated to Australia between 1990 and 1993, sponsored by her husband who had come to Australia by boat as a refugee. She brought their 2 children with her.
The applicant’s evidence is that she was close to this sister’s son, and that he has sponsored many of her visas to visit Australia. At one stage, she lived in Australia for 12 months caring for her nephew’s prematurely born infant child. She has travelled extensively in Victoria and has visited Brisbane and the Gold Coast. The applicant advised the Tribunal that she has always travelled alone; her husband has had no desire to leave Vietnam, nor has one of her sons. Her other son lives in Australia. The applicant admitted to having overstayed her visitor visa once, in 2014, claiming she relied on her travel agent’s advice regarding the duration of the visa because she is unable to speak English. She told the Tribunal that she always follows the laws in Australia because she wants to be able to come here for relaxing holidays.
When asked what her plan was when she last arrived in Australia [in] September 2015, the applicant told the Tribunal that she intended only to travel around and explore the country further, but that the police had come to her house in Vietnam and told her husband that if she came home, she would be arrested. This occurred around 2 months into her trip. She admits that at that moment, she decided she was staying in Australia, and that her son (who lives here) agreed with her decision. She told the Tribunal that her husband and other son advised her not to come home. It is the applicant’s evidence that ultimately, her husband left both the family home and by extension, their marriage, as a result of the continued police presence searching for the applicant. She is not formally divorced, but no longer speaks to her husband.
The applicant was upfront and honest telling the Tribunal she knew it was wrong to stay in Australia without a valid visa, but she was so scared of returning to Vietnam that she did not think about the consequences of staying in Australia without a valid visa. She said she visited a friend who explained that the Australian government is very humanitarian, and that she could apply for protection to stay here permanently. For that reason, she instructed a migration agent to make a protection visa application, and she wrote her claims down in Vietnamese for translation into English.
At the time of the Tribunal hearing, the applicant had been in full time employment with [Employer 1], [working] at a factory in [Suburb 1], for approximately 4 months. She had worked on a casual basis as a [Occupation 1] at a restaurant in [Suburb 1] prior to that. She said she decided to leave Vietnam because she could not stand living there, and she needed to apply for a visa to be a tourist.
The applicant claims to fear returning to Vietnam because the police were always coming looking for her due to her family history where her older siblings had served in the army in the former Republic of Vietnam. She is afraid that she will be arrested if she returns. The applicant claimed that 10 people on motorbikes had come looking for her in November 2015, and that it seemed more dangerous now for her to return compared with previous trips to Australia or [Country 1]. The applicant’s evidence at the hearing was that she has been stopped on every return entry to Vietnam and taken away for questioning by 2 officers, usually a male and a female, but sometimes only one officer would question her. If that lone officer was male, the applicant felt afraid.

She believes that if she returns to Vietnam, she will be arrested and/or imprisoned, and she believes this will happen because it has happened to her friends in the past. When questioned regarding whether she feared returning to Vietnam as a single woman, given her husband’s separation, the applicant said she was very scared and that on the previous 3 occasions she returned to Vietnam, she was questioned by a lone male officer who had smacked the table, pointed fingers at her and held his gun threateningly, touching her head with it. She said that as a woman, she does not have the power or strength to overcome an officer in that circumstance.
The applicant has stated that she has never been physically harmed by any of the authorities in Vietnam, even when she has been verbally intimidated and threatened in her entry interviews. The Tribunal enquired as to why the applicant believed the authorities may treat her more harshly this time on re-entry as opposed to the previous 11 times she has returned to Vietnam. The applicant cited the lack of human rights protections and the previous abuse of her family members as the main reasons she did not trust the authorities to treat her similarly this time to her previous return trip.
Her representative made brief submissions on her behalf, stating that she had attempted to leave Vietnam decades earlier but was unable to do so, and that once you have tried to leave, you will be noted by the authorities. He said that her family was one of the unlucky ones that did not escape during that initial period of occupation in South Vietnam, and that history has repeated culminating in the November 2015 visit where 10 men on motorbikes came to the applicant’s home searching for her. He said that the risk of remaining in Australia illegally seemed less bad than returning to Vietnam.
The Tribunal offered the applicant a further opportunity to articulate any final claims or submissions, and she did so by a statutory declaration made on 17 October 2022. In summary, she stated that:
·she had limited opportunities growing up and was unable to complete her formal schooling and had no choice but to start her own business;
·the authorities harassed her and made it difficult for her to run that business; she always felt scared that they would take everything away from her like they did after the war;
·after her first trip to Australia, upon return to Vietnam, the police came to her house, arrested her, forced her to go to their office and interrogated her; she was terrified so applied for another visa to come back to Australia;
·in June 2005 on return from her second trip, armed police came to her house to question her; she felt in danger so applied for another visa to come to Australia;
·after returning to Vietnam in July 2006 from another 3 month trip to Australia, she was taken to the police office and questioned by a group of men with weapons and she was frightened; after being released, the local police attended her home to question her further and requested her to visit on a weekly basis;
·when she returned to Vietnam in June 2008 after spending a year in Australia caring for her nephew’s child, she was hassled and threatened by police who had weapons, and who tried to search her clothes, luggage and belongings. She describes this incident as “extremely traumatising and haunted me for the rest of my life. I try not to think or talk about those horrible and painful days anymore”;
·she was desperate to escape the harassment of the Vietnamese authorities and kept applying for visas to return to Australia but was refused;
·every time she has returned to Vietnam from a trip to Australia or [Country 1], “the communist police, with weapons in hands, always hassled me, made it difficult for me, searched my body, my belongings, and my luggage. They made me extremely scared and anxious;”
·when she returned to Vietnam in 2014 having overstayed her visa, the Vietnamese authorities caused her a lot of problems and threatened imprisonment;
·she entered Australia in 2015 on a family sponsored visitor visa; she went out of Vietnam to find freedom, and she travelled around Australia living without fear;
·before her visa expired, her family members in Vietnam contacted her to say that 10 policemen had come looking for her, and they told her not to return to Vietnam because the police were very forceful; and
·she recalled that her friends [Ms A] and [Ms B] had been arrested and taken away by police in similar circumstances to hers, and that she has never seen them again.
No witnesses were called to offer evidence in support of the applicant’s claims regarding the continued harassment by local police at her family home in Vietnam, and no documentary evidence (for example, formal state-issued documents such as a summons to attend the local police station) has been provided. The applicant has pleaded with the Australian government to help her to live permanently in Australia and has emphasised her fears about returning to Vietnam. The Tribunal accepts that she is genuinely fearful about returning to Vietnam, and it accepts that the applicant feels more relaxed living in Australia.
However, the Tribunal cannot be persuaded that the applicant’s fear is based on a well-founded fear of persecution as required by the Act. The reasoning for this is set out below.
Well-founded fear of persecution in the future
The Tribunal notes the applicant’s claim to fear persecution in Vietnam relates to her actual or imputed political opinion manifesting as anti-Communist sentiment inferred from her family’s involvement with the Republic of Vietnam army during the Vietnam war. Given the oral evidence provided at hearing regarding the applicant’s marriage breakdown, the Tribunal will also consider the applicant as a member of a particular social group of single women and divorcees.
The Tribunal has considered the DFAT Country Information Report about the treatment of political activists and dissidents in Vietnam. Relevantly, DFAT explains:
[3.49]   Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV 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.
[3.55]   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.
There is no evidence before the Tribunal to indicate that the applicant has ever behaved in a way to make herself known to the authorities for her political beliefs. She has not professed to have engaged in any organised protests against the government nor to have spoken out regarding the treatment of people who had lived in the former South Vietnam. The Tribunal accepts the applicant’s claim that her family made several attempts to flee Vietnam after the Vietnam War. Although her family did try to escape Vietnam after the war, they do not appear to have engaged in any political activism.
The Tribunal has also considered the DFAT Country Information Report about the treatment of people whose relatives were involved in the Vietnam War. Relevantly, DFAT explains:
[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.
As noted already, the Tribunal understands that the applicant has felt oppressed and suppressed by the Vietnamese government at many times in her life, and notes that she was a young child during the Vietnam War. The Tribunal accepts the applicant’s claims regarding her siblings’ participation in the Republic of Vietnam army. As someone with siblings who fought in support of South Vietnam, it is arguable that the applicant is more likely to be known to the authorities than the grandchild of a Republic of Vietnam army member used as the example in DFAT’s report. However, the Tribunal notes that the Vietnam War ended when the applicant was a young child, and that continued discrimination against relatives of those involved in the war is low level if it occurs at all. There is no compelling reason that the applicant’s connection to the Republic of Vietnam army would continue to be of interest to the Vietnamese authorities now or in the foreseeable future.
On balance, the Tribunal is not persuaded that the low-level intimidation and harassment the applicant claims to have experienced before is sufficient to establish a well-founded fear of persecution should she return to Vietnam in the foreseeable future. The applicant was able to obtain a new passport [in] 2022, a copy of which she provided to the Tribunal, and there is no evidence that she faced any difficulty in obtaining that document.
The Tribunal acknowledges the possibility of the applicant being arrested on re-entry, given the significant passage of time since she last left Vietnam. However, she is an older woman with no history of insurgence, violence, or outspokenness against the Vietnamese government. While the Tribunal accepts there is a prospect that the applicant will be questioned as to her whereabouts and her reasons for remaining abroad for so long should she return to Vietnam in the foreseeable future, it is very difficult to draw an inference that she is likely to suffer persecution for her imputed political opinion. There is no indication, other than the applicant’s bald assertions regarding 10 men on motorbikes visiting her home in 2015, that she may be a person of interest to the Vietnamese authorities.
The Tribunal has also considered whether the applicant has a well-founded fear of persecution returning to Vietnam as a single woman. The Tribunal has considered DFAT’s report in respect of single and divorced women, which provides:
[3.82] Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.
[3.83] In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.
[3.84] Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame, but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.
[3.85] Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.
[3.86] DFAT assesses that single women and divorcees do not face official discrimination, but do face a moderate risk of societal discrimination.
The applicant is a [age] year old woman with two adult sons, one of whom is a permanent resident in Australia. She has told the Tribunal that her husband has left her; they never travelled to Australia together, nor did he accompany her on her trips to [Country 1]. The applicant’s husband has managed to run businesses in Vietnam through his working life, and he could assist the applicant in purchasing tickets to travel overseas. The applicant’s descriptions of her experience of marriage indicate that she and her husband are not close, but that she has always felt compelled to return to Vietnam from her travels because of her son/s.
It is unclear what the applicant’s life would be like should she return to Vietnam and to live separately from her husband, though the Tribunal is prepared to give the benefit of the doubt and find that she does face a moderate risk of societal discrimination given her husband’s decision to leave the family home, the applicant’s age, and the amount of time she has been away from home. Although there are unsubstantiated allegations of police harassment at the applicant’s family home in Vietnam in November 2015, there has been no evidence presented nor arguments made that the police have continued their visits in more recent times.
On balance, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of her status as a divorced or single woman returning to Vietnam in the foreseeable future.
Although not overtly claimed by the applicant in the hearing or through her submissions, the Tribunal has also turned its mind to the question of the psychological impact on the applicant and her son who lives in Australia should she be required to return to Vietnam in the foreseeable future, as well as the nephew with whom the applicant has been living in recent years. This consideration arises clearly on the material presented to the Tribunal by the applicant including her expressions of feeling very unhappy and unsafe in Vietnam but feeling at peace and calm when she is in Australia, and her descriptions of her happiness living with her nephew’s family and caring for his children.
It is clear from the evidence presented that the applicant is closer to her nephew and his nuclear family than she is to her son who lives in Australia. The applicant was granted a visa for 12 months to care for her nephew’s prematurely born child, and her nephew and his family regard the applicant as a second grandmother to their children. She has been living with her nephew’s family for a considerable period. The Tribunal accepts that, given the facts presented, the applicant and her nephew’s family will be at risk of a degree of hardship and therefore potential psychological harm if the applicant is removed from that family unit. However, this is not a case where the applicant returning to Vietnam would signal the end of her close relationship with her nephew and his family. It would be reasonable to assume they could maintain regular contact through web-based communication and telephone calls, and it would be open to her nephew’s family to travel to Vietnam to spend time with the applicant.
Further, the Tribunal notes the applicant does have another adult son living in Vietnam, whom she has not seen for many years, as well as her estranged husband, and extended family members. There is no suggestion that the applicant’s family in Vietnam could not or would not support her emotionally should she return to Vietnam in the foreseeable future. It is difficult for the Tribunal to reconcile that the risk of psychological harm the applicant would face if she were to return to Vietnam in the foreseeable future would amount to persecution under the Refugee Convention. The applicant has familial support in both Vietnam and Australia, and despite her clear preference to live in Australia, there is no suggestion that she would suffer a degree of psychological harm commensurate to persecution should she return to Vietnam in the foreseeable future.
Ultimately, in the absence of evidence to suggest the applicant has ever been subjected to anything more than low-level intimidation by police on her return from her various overseas trips, and in the absence of any further substantiating evidence regarding the alleged police harassment of the applicant’s family at their family home that has allegedly occurred since the applicant last arrived in Australia, it is difficult for the Tribunal to be satisfied the applicant faces a real chance of serious harm, now and into the reasonably foreseeable future, for any reason raised in her application or arising on the facts if she were returned to Vietnam.
It follows that, although the Tribunal can be satisfied that the applicant is genuinely fearful on a subjective level about returning to Vietnam in the foreseeable future, there is not a sufficient evidentiary basis on which the Tribunal can be satisfied that the applicant’s fear is well-founded as required by an objective assessment of the available evidence.

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The complementary protection ground
For the same reasons that I have found there is no real chance of serious harm, I find that the ‘real risk’ element of the test in s.36(2)(aa) of the Act has not been met.[1] I find that there are no substantial grounds before me for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk she will suffer significant harm: s.36(2)(aa).
[1] see, e.g., MIAC v SZQRB [2013] FCAFC 33 at [245]-[246] (Lander and Gordon JJ)
Member of the same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2023] AATA 2466

5 May 2023

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