1812573 (Refugee)

1812573 (Refugee) [2022] AATA 5183 (20 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1812573
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 following directions:
(i)that the first named applicant and the second named applicant each satisfies s 36(2)(a) of the Migration Act; and
(ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 20 December 2022 at 3:48pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – particular social group – membership of extended family with anti-communist history – political opinion – anti-communist – anti-corruption – pro-South Vietnamese – victim of sexual harassment – a woman without defence against rape or exploitation – State protection not available – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
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

[Mrs A] is a [age] year old Vietnamese national. Her husband, [Mr B], is [age] years old and is also a Vietnamese national. Together they have a [age]-year-old son, [Master C]. [Master C] was born in Australia, but he has been registered as a Vietnamese citizen. Both [Mrs A] and [Mr B] had travelled to Australia prior to their most recent arrivals. [Mrs A] accompanied her mother on a trip in 2014 to visit her brother, [Mr D], who settled in Australia as a refugee in 1993. [Mr B] had spent time studying in Australia in 2014.
[Mrs A] came to Melbourne most recently in September 2016 whilst heavily pregnant. She gave birth to [Master C] at [a] Hospital in [2016]. [Master C] was admitted to the neonatal intensive care unit following his birth. [Mr B] arrived in Australia on [date] November 2016 holding a Subclass 600 visitor visa. He was not able to join his wife sooner as he was assisting his own parents as his father had heart surgery not long before [Master C] was born. He returned to Vietnam briefly around the time of Lunar New Year in January 2017 before arriving back in Melbourne on [date] February 2017.
[Master C] has just completed his first year of primary school, while [Mrs A] and [Mr B] both work at [a workplace], albeit in different departments and at different shifts.
On 8 March 2017, the family applied for protection visas, assisted by [Mrs A]’s brother, [Mr D]. On 27 April 2018, pursuant to s 65 of the Migration Act 1958 (Cth) (the Act), the delegate refused to grant the applicants protection visas.
The applicants appeared before the Tribunal on 9 September 2022 in a combined hearing with [Mrs A]’s brother and niece, [Mr E] and [Ms F] in respect of their own claims for protection, to give evidence and present arguments. The Tribunal also received oral evidence from [Mr D], [Mrs A]’s other brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review. Mr [D] is the representative on the record, but given his intent to provide evidence in support of his sister and her family, the applicants retained Mr Anthony Krohn of counsel to represent them at the hearing. Mr Krohn provided detailed post-hearing submissions in support of the application, and assisted [Mrs A] and [Mr B] in making a post-hearing statement to the Tribunal.
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
The family’s Vietnamese nationality is not in issue. [Mrs A] and [Mr B] have provided the Department and the Tribunal with copies of their passports issued by the Immigration Department, Socialist Republic of Vietnam. [Mr B]’s passport was issued on [date] 2013 and is valid until [date] 2023. [Mrs A]’s was valid from [date] 2008 until [date] 2018. They provided a copy of [Master C]’s Victorian birth certificate to the Department. The Department accepted their claimed nationality and identity shown in their passports and birth certificate, 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 [Mrs A] and [Mr B] claim to fear persecution by the Vietnamese government on the basis of their membership of a certain social group, being [Mrs A]’s extended family, as well as their political opinions. [Mrs A] claims that she has faced systemic discrimination for her whole life, and that this discrimination has been made on the basis that her relatives fought against the communist regime and the Vietnamese Communist Party, and that her family history puts her in direct focus of the VCP. [Mr B]’s claims are based on the same premise, being that his wife’s family history leads him to fear persecution should he return to Vietnam. No claims have been advanced on behalf of [Master C]. His application is assessed on the basis of being part of the same family unit as his parents.
Credible witnesses
The Tribunal spoke with [Mrs A] at length during the hearing, and it received oral evidence from [Mr B] as well. As was the case with [Mrs A]’s brother and niece, the Tribunal can remark on the spontaneous yet consistent nature of their evidence given throughout the hearing. In particular, [Mrs A] should be commended for her measured, calm approach in telling her personal story – one that involves her being the victim of serious crimes in her adult life. Her evidence was highly persuasive. My assessment is that both [Mrs A] and [Mr B] gave honest, truthful, and considered responses to all of my questions. They were able to provide detailed recollections of particular past discriminations they claim to have experienced, and they were able to rationally articulate their fears stemming from past experiences in Vietnam as well as their reservations regarding their safety if they were to return. They refrained from hyperbole when discussing the extent of their fears. Their evidence did not appear rehearsed.
Understandably, the Tribunal took time and care collecting evidence from [Mrs A]. The obvious need for this delicacy is addressed below. For a woman to sit before the Tribunal with a male interpreter and recount very personal details of the types of systemic discrimination she encountered in Vietnam, and to speak out loud about this for the first time in her life in front of family as well as strangers, took a great degree of courage. It was clear that [Mrs A] felt shame as a result of the way she had been treated by her former employers.
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 – [Mrs A]
[Mrs A] was born in Quy Nhon, Binh Dinh province, in [year]. She is the youngest of [number] children in her family. Her [number] siblings are more than [age] years older than her. The age gap between [Mrs A] and her next-eldest sister is obviated by their father having been imprisoned after the VCP took over South Vietnam in 1975. Mr Krohn agreed with the Tribunal that aspects of [Mrs A]’s family history could be confirmed through evidence received in her brother’s protection visa application.
Relevantly, [Mrs A]’s brother [Mr E] gave evidence in his protection application hearings 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 E] provided particularly graphic details regarding the death of one of his mother’s brothers, and that story was corroborated by [name] in his oral evidence in support of [Mr E]’s application. The Tribunal accepts [Mrs A]’s family history as so described.
[Mrs A] described her early upbringing as ‘very difficult’ and that she experienced hunger and poverty. She told me that at times, she could not afford to pay her school fees despite working with her mother selling vegetables in the street. [Mrs A] states that she was denied a university education, and that this limited her employment prospects. She told me that she left Quy Nhon and travelled to Saigon in search of better opportunities, but that she could not find a job in Saigon either. Eventually, she managed to obtain some work as a waitress in Saigon on a casual basis. When that work was not available, she collected empty bottles and other recyclables. She described a period of homelessness in Saigon where she had to sleep near the rubbish dump where she scavenged because she did not have enough money for food and lodging.
[Mrs A] told me that during this time, she thought about returning to Quy Nhon, but felt she had no future there because she could not get a job and she had no money. She recalled being beaten and punished in the street by local police when she was a child for violating street laws when she would peddle vegetables with her mother. They could not afford a market stall. [Mrs A] told me that the reason she eventually returned to Quy Nhon was to care for her mother after her father passed away in 2005.
The life [Mrs A] described in Quy Nhon from that time until the time she came to Australia was difficult. She struggled to find employment again, eventually relying on friends to assist her to obtain work as a [Occupation 1] in a private company. That job was short lived; she was made redundant without notice or reason. At that time, she decided to apply for work in a government department. She paid an official a bribe of USD2,000 to gain employment as a [Occupation 1] in [Workplace 1].
[Mrs A] believes that as she settled into her role, the directors of the company began looking into her family history and discovered her anti-communist links. She said that from this time, her employers began treating her differently. The following statements extracted from [Mrs A]’s written statement to the Tribunal dated 8 October 2022, at paragraphs [8] to [10], summarises her oral evidence in this respect given at the hearing, and in my view do the best justice to outlining the grave nature of the discrimination she faced from this time:
In 2006, I returned to my hometown at Quy Nhon. I worked as [Occupation 2] and [Occupation 1] for private companies [name], then [name], each for about two (2) years; before paying money for the employment at [Workplace 1], which is a VCP government company, in 2011.
At [Workplace 1], after working for about three months, they checked my family background. The rule is for a check back three generations, so they found that I belonged to an anti-communist family, and also that my brother [in] Australia was involved in anti-communist, anti-Vietnamese government activities.
From that time onwards, I often have been subject to sexual harassments, and abuses. No other woman at the workplace was abused in this way. It happened about two or three times a week. Sometimes it was by the director, sometimes by the head of department. They tried to undress me; I always tried to resist and to fight back. Sometimes it involved just indecent touching, but sometimes it was rape. Sometimes it was in the manager’s office; sometimes while I was cleaning the toilets.
The manager and office-leader, who often abused me, knew that I have paid money to have the employment, and with my anti-communist family background, I would not dare to report to VCP police. He told me that if I allowed him to satisfy his sexual urges on me, he would give me money. He said that I had already been checked and he knew my anti-communist background. I fought against him, but quietly – I did not shout or scream or disclose the abuse to others, because I was very scared of losing my job and returning to hunger and poverty with no work. They had been really dark days, without income, and constantly hungry.
The last incident happened in 2013, when I was on the stairs, cleaning them, and the manager tried to embrace me, clearly wanting sexual intercourse. In trying to fight him off, I fell downstairs, had miscarriage, and lost my first child. I was laid off after the abuse without any compensation. I have testified before the Tribunal at the hearing on 9 September 2022 in relation to those abuses. Those abuses were directed at me because of my political profile, which made me a woman without defence against rape or exploitation.
The Tribunal notes that it took a considerable effort during the hearing to enable [Mrs A] to freely articulate the nature of the ‘sexual harassment’ she claimed to have received at work. The fact that her ‘harassment’ involved repeated and systemic unwelcome sexual intercourse from her director is information that does not appear to have been available to the delegate at the primary assessment of the application. The repeated nature of this harassment and the thinly veiled threats regarding [Mrs A]’s ongoing employment prospects due to her family’s anti-communist beliefs if she did not submit is a very significant factor to be considered when establishing whether [Mrs A] has a well-founded fear of persecution in Vietnam in the future.
[Mrs A] told the Tribunal that after leaving [Workplace 1], she earned her living by working as a [Occupation 3] for commission for a private[company]. She received no base salary for this role. She claims she continued to face discrimination in this role because when she travelled to different towns to host seminars, the local police would not allow her to register and stay in their town overnight. Further, she states that she was not able to work in major cities [due] to her family’s political profile.
[Mrs A] told me that she suffered major discrimination during her pregnancy with [Master C], to the extent she felt her only option was to flee to Australia to give birth. Again, her post-hearing statement summarises in her own words the oral evidence presented at the hearing, where she stated at [13] and [14]:
In 2016, I was pregnant for [Master C] (my current [age]-year-old boy/ applicant). I and [Master C] both had complex health issues. I was denied treatment, and then being asked to pay 100,000,000 Dong, an unaffordable amount of money, for being accepted as a patient at the VCP government hospital.6 This was in obvious and unconcealed contrast with other women who were admitted to treatment at the same hospital when I was there, admitted simply as women in need of it. This was potentially life-threatening discrimination for political and family reasons.
I flew to Australia at [number] weeks of pregnancy in order to get treatment and to give birth. This was dangerous but necessary, as my baby had [medical conditions], and other health issues, and as it turned out I was unable to give birth naturally after a labour of 4 days and 5 nights, and a Caesarean birth was necessary for the sake of me and my baby. After I gave birth to [Master C in] Melbourne, the doctors and nurses at [the] Hospital treated me nicely and equally to other patients, I cried for I was not discriminated for the first time in my life.
Relevantly, according to [Mrs A], the fee of VND100,000,000 [Mrs A] was asked to pay for admission to a Vietnamese hospital to manage her diagnosed complex pregnancy was 5,000 times the amount a woman would otherwise be expected to contribute for medical expenses associated with a hospital birth. In her statement made on 8 September 2022, [Mrs A] indicated that the VND100,000,000 was an administrative fee, exclusively applied to her, and that any other medical costs incurred would attract additional charges. [Mrs A] believes that either [Master C] or she would have died if she had attempted to deliver him in Vietnam without medical assistance. [Mrs A] claims the request for VND100,000,000 was made due to information in her family statement regarding the anti-communist beliefs and activism that her grandparents and parents, aunts and uncles had engaged in.
Since coming to Australia, [Mrs A] appears to have led a peaceful existence, raising her son and [working]. She claims not to be involved in any of the ongoing political activities that her brothers take part in here. In her statement made on 8 September 2022, she claims to have clicked ‘like’ on some of the social media posts that [Mr E] and [Mr D] make and that on occasion she has used the ‘share’ function, but otherwise she is not outspoken on social media. [Mrs A] claims it would be impossible for her to continue to publicly support her brothers’ political views and writings if she returned to Vietnam.
Personal narrative - [Mr B]

At the hearing, [Mr B] told me that he was born and raised in Binh Dinh province and that he has a younger sister who was born in [year]. He claims to be from a very ‘normal’ family of rice farmers commonly found in Binh Dinh. He was admitted to [a university] to study [in] 2005.
[Mr B] explained that he met [Mrs A] through [Mrs A]’s older sister. He played [sport] in the same club as his now sister-in-law, and he attended a party she held at her home one day and met [Mrs A] for the first time.
After he completed university, [Mr B] obtained [employment], and started to notice some ‘negativity’ within the organisation. [Mr B] told me that over the course of his employment with this institute, he was involved in a number of projects, and that he was often asked to sign off on blank receipts or invoices for purchasing [materials] to be used in experiments. In his post-hearing statement, [Mr B] summarised his experience:
…while I was [working] in Binh Dinh province, Vietnam, I was asked to sign documents acknowledging the receipts of equipment, materials, appliances of which its prices have been falsely marked up three or fourfold from the real prices. Very large sums of money were involved – hundreds of millions of Vietnamese Dong (VND). I refused to do so. Because of it and together with my wife’s anti-communist family background, I was not allowed to continue my job with my expertise but being sent to do hard-labour works in gardens [like] carrying wood, or cleaning.
In December 2015, I was asked to work in farms [in] a remote and mountainous area about 200 Km from my home and without basic living conditions. The management board of the [employer] and VCP Police signed agreements to use the labour of criminal prisoners as their corruption deals. I was asked to collaborate with those prisoners as their “instructor.” Those persons did not want to listen to me, did wrong things, and about three or four times a week hit me in fake accidents, then they said “sorry” then laughed, and repeatedly. They insulted and threatened me. I had reports to the [employer], but they did not deal with them properly, and the situation was getting worse and worse. On those days, I had the most terrible time of my life.
[Mr B] claims to have suffered further discrimination in 2013 when he tried to join the VCP. He told the Tribunal that when his background was checked, he was not accepted for membership. [Mr B] said that in order to advance your career within VCP government institutions, you need to be a member of the VCP. He said that your family statement must be checked for 3 generations. He believes he was denied VCP party membership on the basis of his wife’s family’s anti-communist background. [Mr B] claims his professional career [under] the VCP regime ended for this reason, and it gave rise to further, serious problems for him and his family.
In summary, [Mr B] concluded that his family did not have a future in Vietnam. He would not be able to utilise his skills or work in his profession and, like his wife, would be forced into low skilled work and may not be able to earn enough money to support his family.
In his post-hearing statement [Mr B] expresses his opposition to the VCP, a summary of the oral evidence he provided at the hearing:
I have no reason to doubt or disagree with what my wife’s brothers in Australia have published about the VCP. I gave an account of my experiences which I believe was published in a redacted form. I am afraid of having “Liked” these on the internet. Computer hacking has occurred, and I might be identified.
There are many negative and wrong things in Vietnam under the VCP, but I would not dare to speak of these things again. If anyone in Vietnam dared to speak openly in criticism of the VCP, there would be serious trouble.
Because of my wife’s anti-communist family background, and my anti-corruption behaviour, I was not allowed to do the job with my study and expertise but being forced to do hard labour with criminal offenders. I was discriminated and maltreated under the Vietnamese Communist regime.
[Mr B] articulated his concerns not only for his future if he was to return to Vietnam, but also for [Master C], noting that [Master C]’s direct descendancy from his wife’s family would ultimately lead to him facing the same types of discrimination that [Mrs A] and other members of her family had received over their lives.
Summary
I have found both [Mrs A]’s and [Mr 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 [Mrs A] has demonstrated a lifelong history of discrimination in Vietnam due to her family status, and that [Mr B] has begun to be discriminated against due to his marriage into [Mrs A]’s family.
Well-founded fear of persecution in the future
Given these findings about [Mrs A]’s and [Mr 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, to a lesser extent, for political activists.
For the reasons set out below, the Tribunal finds that each of [Mrs A] and [Mr B] has a well-founded fear of persecution by the Vietnamese authorities on their return to Vietnam on the basis of their membership of [Mrs A]’s extended family and on the basis of their political opinions.
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 [Mrs A] and [Mr 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 [Mrs A]’s grandfather and uncles, as well as her father prior to her birth, it is reasonable for the Tribunal to conclude that [Mrs A] and [Mr 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)
[Mrs A] and [Mr 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. Whilst they have demonstrated a degree of reluctance in becoming outwardly involved in [Mrs A]’s brothers’ political activities, they have demonstrated that they agree with them, and have confirmed that albeit limited, they have engaged in some social media activity publicising her brothers’ work. [Mr D] 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. He believes this is due to his raised profile as an anti-communist. [Mrs A]’s evidence confirmed that the Vietnamese authorities have made it known to her that they are aware of her brother’s political activities against the VCP regime.
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 [Mrs A] and [Mr B] have engaged in their limited social media activities supporting the [brothers] in Australia have been engaged in for the purposes of furthering their protection claims. [Mrs A] presented as staunchly anti-communism and anti-VCP. She has told the Tribunal that she ‘hates’ the VCP regime. It is clear that she is deeply affected by the direct impact being known to be anti-communist can have, and she has demonstrated her lifelong being singled out and/or excluded while in Vietnam as the root cause of her hatred of the regime. Accordingly, the Tribunal is satisfied that [Mrs A] and [Mr B] have engaged in this limited conduct other than for the purpose of strengthening his claim to be a refugee.
The Tribunal finds that [Mrs A] comes from a family of pro-South Vietnam, anti-communist fighters whose family statement has for a long time recorded those views, and that upon marrying [Mrs A], [Mr B]’s family statement bears the same facts. The Tribunal accepts that [Mrs A] has been directly affected by this labelling in every facet of her life to date, and that since marrying [Mrs A], [Mr B] has begun to suffer as well. It is not surprising that with this background, both [Mrs A] and [Mr B] hold strong anti-communist views themselves.
Having considered the country information alongside the oral evidence given at the hearing, the Tribunal accepts that because both [Mrs A] and [Mr B] are known to the authorities as members of an anti-communist family, then there is a real chance they will each face persecution if they return to Vietnam due to their family connections. The Tribunal is less persuaded in respect of discrimination [Mrs A] and [Mr B] may face for their political opinions. They have deliberately remained as tight-lipped as practical while they have been living in Australia and have not sought an activist lifestyle.
Therefore, the Tribunal is satisfied that both [Mr E] and [Ms F] would be persecuted by the Vietnamese authorities because of their membership of a known anti-communist family, 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. This finding in enhanced reflecting on [Mrs A]’s evidence regarding the difficulty she had travelling around Vietnam for work in the past. Based on the evidence before it, the Tribunal finds there are no effective protection measures available to either [Mrs A] or [Mr B] in Vietnam.
For these reasons, the Tribunal accepts that there is a real chance each of [Mrs A] and [Mr 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 [Mrs A] and [Mr 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 the first named applicant and second named applicant are each a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the third named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that he is the minor child of the first and second named applicants, and therefore he is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the third named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant and the second named applicant each satisfies s 36(2)(a) of the Migration Act; and
(ii) that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
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 5183

20 December 2022

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