1813265 (Refugee)

[2023] AATA 2242

1813265 (Refugee) [2023] AATA 2242 (31 March 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1813265

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:  Mary Sheargold

DATE:  31 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2023 at 9:23am

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – participation in protests over Formosa environmental damage issue in 2016 – published articles on social media platforms – photograph of applicant at protest – fear of harm from authorities – lack of evidence – articles can no longer be located – no evidence to indicate applicant or family members have suffered harm or persecution – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

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 dependants.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 8 February 2018. He was granted his first Subclass 573 student visa on 27 November 2008 and a second Subclass 573 student visa was granted on 24 September 2013. That second Subclass 573 visa expired on 9 December 2015. The applicant applied for a further Subclass 573 visa onshore on 7 September 2016, but that application was refused because the delegate was not satisfied that he was a genuine temporary entrant to Australia. On 15 January 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a further Subclass 573 visa. Since making his protection visa application, the applicant has remained onshore holding a Bridging Visa C, with condition 8101 having been removed from that visa on 23 March 2018.

1. The applicant appeared before the Tribunal on 10 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

1. 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.

1. 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).

1. 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.

1. 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.

1. 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].

1. 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).

1. 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.

1. 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.

1. ‘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.

1. 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.

1. 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

1. 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.

1. 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

1. The applicant’s Vietnamese nationality is not in issue. He has provided the Department and the Tribunal with a copy of his passport issued by the Immigration Department, Socialist Republic of Vietnam, that was valid from [2008] to [2018]. The Department accepted his claimed nationality and identity shown in his passport, as does the Tribunal. The Tribunal finds that Vietnam is the applicant’s receiving country for the purposes of assessing his protection claims.

Relevant background, claims and evidence

1. 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.

1. 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.

1. The applicant has made claims in his written application form provided to the Department as well as during the Tribunal hearing. In his application form, he claimed:

·while studying in Australia, he has been involved and active on online forums;

·in 2016, he wrote a piece and posted it on “the forum” expressing his views of the Communist Party, and mentioning that the President of Vietnam had accepted a bribe from Formosa Ha Tinh Steel;

·he “asked the Vietnamese Student Association to speak up and was active in the Protest that took place at Parliament Square;”

·he was already present in Australia when the incident occurred so there was no outlet to move to other parts of Vietnam or any other country;

·he was photographed holding a photo of the former Republic of Vietnam flag at a protest;

·he did not know the consequences of holding this flag; he simply held it because other protestors gave it to him;

·shortly afterwards, his family in Vietnam was approached and were informed that the applicant was wanted for questioning;

·his parents informed him of this visit and asked him to remain in Australia for his own safety;

·he believes that on his return to Vietnam, he would be arrested at the airport and taken in for questioning, that the authorities will have evidence to charge him, he would be tortured, and his rights to speak up will be compromised;

·if he does not “relent to their demands, force will be place upon myself where I will have to admit guilt. I refused to admit guilt as I have every right to be angry. I have every right to make the comments that the Communist does not live to their written values and that their policies only sounds good but their actions are the opposite”;

·he would not be allowed to defend himself, his family would not be able to visit him; he would not be able to ask for a lawyer to represent him; he would be kept in isolation, tortured, or in the worst possible situation, kill him to create an example for others;

·the government departments and police are controlled by the Vietnamese Communist Party (VCP) and that there are no organisations or other parties that could come to his defence or protect him if he returned to Vietnam; and

·he would be arrested at the main entry port, TSN Airport, and would not be able to relocate anywhere else.

1. The applicant was not interviewed by the Department prior to the delegate making their decision. The delegate relied on country information from DFAT relating to the Vietnamese government’s response to the Formosa Ha Tinh Steel Corporation’s environmental issues noting that only a small number of activists were arrested and that the protests largely proceeded without incident. The delegate was not satisfied that the applicant sharing social media posts from Australia encouraging others to “follow protests” would bring him to the attention of the Vietnamese authorities.

1. The delegate also noted that although the applicant claimed to have been photographed holding an old Vietnamese flag, and that he had made anti-Communist posts on social media, he provided no evidence to substantiate his claims. The applicant made no further claims prior to attending the Tribunal hearing.

1. At the hearing, the applicant told the Tribunal that he was born in Ho Chi Minh City on [date], and that he completed all his schooling in Ho Chi Minh City as well as a12 month diploma in [subject] prior to moving to Australia to further his studies. He worked part time in the [business] his parents owned. He has a [sister] who was born in [year]. The applicant told the Tribunal he completed all of his courses of study he enrolled in whilst holding a student visa in Australia. This contradicts his responses on his protection visa application form where the applicant states he withdrew from every course he enrolled in between 1 January 2010 and 1 January 2017.

1. When asked why he came to Australia, the applicant explained it was because he wanted a more advanced educational system in which to study, and because he wanted to see a lifestyle beyond Vietnam. He told the Tribunal that he and his parents had jointly agreed that studying in Australia would be a good idea, and that they had chosen for him to come to Australia because it is the most physically proximate first world country (as the applicant described it) to Vietnam.

1. The applicant told the Tribunal that his parents had shut down their [business] in Ho Chi Minh City due to financial difficulties, and that his father works [at] a [workplace]. He calls his family in Vietnam [on] a weekly basis. He has one living grandmother. His mother’s sister lives in Melbourne with her 2 children, but the applicant has minimal contact with them. The applicant told the Tribunal that his parents had come to visit him in Australia once in 2009, but that his sister did not come with them. Departmental records confirm that the applicant has not left Australia since [January] 2015.

1. At the time of the hearing, the applicant stated he was working [in] Melbourne’s outer [suburbs], and stated that he continues to live in [suburb]. He told the Tribunal that he has worked in various [businesses] as [an occupation] in recent years.

1. When asked if he feared returning to Vietnam, the applicant said he did, and when asked why he feared returning, he said that the Vietnamese government imposes restrictions on its people and that they cannot freely express their ideas, as well as the fact that there is no freedom of press in Vietnam. The applicant stated he believes that the Vietnamese government is closely related to the organisation that controls the press in Vietnam, and that he has posted a lot of content on social media platforms that he believes the Vietnamese government has obtained. He fears returning to Vietnam as he believes he will be arrested and further action will be taken against him.

1. Unfortunately, the applicant was not able to identify or name any social media platform he used to make the claimed anti-Communist posts. He explained that he made the posts in 2016, that the forum where he used to make them was no longer active, but that he believed someone from the government in Vietnam still maintained records from that forum. The applicant told the Tribunal he could not remember the name of the forum, but that it was a forum of freedom seekers, and he does not believe anyone is able to search for this forum anymore.

1. The applicant told the Tribunal that he has not made social media posts since posting on this forum in 2016 because he fears for his own safety and the security of his family in Vietnam. He said was sure that there would be consequences, so he stopped publishing. When asked what his posts and/or articles were about, the applicant said he mentioned Formosa, and that he published a number of articles about it, which is why he cannot remember the exact nature of the posts. When asked if he could recall roughly how many posts he had made, the applicant said that although the posts were made a long time ago, he remembers roughly “more than 10 articles”. The Tribunal asked if the applicant had received comments on his articles, he stated that he had, but that the comments mostly came from within Australia.

1. The Tribunal asked the applicant if he was making the posts on an Australian-based website; he was not sure. The Tribunal highlighted to the applicant that he had described a relatively normal childhood in Vietnam including regular schooling and family holidays to the beach, and asked what changed his attitude towards the Vietnamese government once he had settled in Australia. The applicant explained that on arriving in Australia, he saw that there was freedom of press, that the press and media were free to publish, and that many articles were “not the way we see in Vietnam”. He said that he did not change his opinion towards the Vietnamese government, he just added to it.

1. The applicant explained that he feared returning to Vietnam because the border police would already have all the documents about his publications, and that they would secretly take him, not publicly, so that no one knows. He believes he may be detained and persecuted for the articles he wrote. When asked why he thought the Vietnamese government had copies of those articles, the applicant explained that the Vietnamese government is good at filtering information, so the articles must have been stopped by the filter. The applicant remained adamant that even though he had not retained copies of any of the articles he claims to have authored nor could he name the website he published them on, the Vietnamese government controls the border force, police, and press, and therefore they must have all the information they do not like. He stated that even though he cannot find the information again himself, he believes that the Vietnamese government still has the articles.

1. The Tribunal discussed with the applicant whether he believed the Vietnamese government had resourcing to monitor every negative internet post appearing around the world. The applicant stated he did not believe the government archived every single subject, but rather it filters out a few things it believes is important such as the name of the website used to post the article, how many interactions were had with it, and similar. The applicant told the Tribunal he was sparked to write these articles being critical of the Vietnamese government because in Vietnam, the government restricts the publication of press, there is oppression, and that having learned about this from outside sources, the applicant then wished to express his opinion. He stated he did not wish to express anti-government views, just his views about the lack of freedom of press in Vietnam.

1. He went on to describe his ambition as being to fight for freedom of press in Vietnam, to allow the Vietnamese people to have freedom of speech and press. When questioned as to why he became scared to continue making posts and why he stopped making them so abruptly, the applicant explained that he was worried about the wellbeing and security of his family in Vietnam. However, he did not cite any reasons for this concern developing.

1. He did say that he was worried about the wellbeing and security of his family because if his article was known to the Vietnamese authorities, he would be tracked down, and when he was tracked down, the authorities would come for his family. He says that upon becoming aware of the potential consequences of his posts to his family, he ceased making any more public statements online. When asked how he became aware of the potential consequences for his family in Vietnam, the applicant stated that it was his “own feeling”. He said he had been warned about the risks prior to his first article being published, but that he felt compelled to make the posts not for his benefit but for the benefit of the Vietnamese community.

1. The Tribunal asked the applicant if his aunt, who lives in Melbourne, knew about the posts. He said that she did not. The Tribunal asked if the applicant had told his aunt or his parents that he had applied for a protection visa in Australia. The applicant stated that he has told his family that he is still on a student visa, that he is studying new courses, and that they believe him when he says this. When asked why he was reluctant to share with his aunt that he was seeking protection, he said that he did want to tell her, but that he was afraid she would nag him.

1. The applicant also described his involvement in protest activities in Australia relating to the Formosa environmental damage issue in 2016. He said that he was photographed holding a flag of the South Vietnam regime – a yellow flag with 3 red stripes. He said it was a spontaneous decision when he wanted to express his feelings. He said that the photograph was published on the forum, and published widely, so he was afraid the Vietnamese government would have captured it and put him on a list of anti-government people. When questioned as to how the government would identify him in the photograph, he contended that they may use facial recognition technology.

1. The Tribunal asked if the photo was still online. The applicant said that with his searching ability he could not find it, but the Vietnamese government has border security and they may have archived the photo. When asked if he could show the Tribunal a copy of the photo, the applicant stated that due to his worry about future involvement, he deleted all of the files he had, and explained that he did not think he could get a copy of the photo from someone else in the protest group because the people are now scattered everywhere, and that the applicant respects their privacy and desire “to keep it quiet”.

1. At this point, the Tribunal addressed with the applicant reservations that had surfaced arising from his verbal descriptions of his claimed fears and the factual circumstances leading to those fears arising as against the written claims in his application. Having confirmed at the beginning of the hearing that he understood the contents of his application and that all the information was true and correct as far as he knew, the Tribunal asked the applicant to review the section of his application form where he claimed that his family in Vietnam had been approached by the authorities asking to question the applicant following the publication of the applicant holding a South Vietnam flag.

1. The applicant read this section of the form and agreed that he had claimed that his parents had informed him about the authorities approaching them, and that his parents had asked him to stay in Australia for his own safety. When asked why he did not mention this in his evidence earlier, the applicant stated that he may have misunderstood the Tribunal’s questions, and he argued that his parents gave him general advice about his own safety and the fact that they did this did not mean they should know or understand that the applicant had applied for a protection visa to remain in Australia.

1. The Tribunal raised concerns regarding the applicant’s understanding of what may constitute persecution for the purposes of ss.5J(4)(b) and (c) of the Act, that is, that it must involve serious harm to the person, or it must involve systemic and discriminatory conduct. The applicant stated that he believed the authorities coming to ask a person to be questioned was a usual practice in Vietnam. When asked why he waited until 2018 to apply for protection when his parents had advised him to stay in Australia for his safety as early as 2016, the applicant stated he had no reason to apply for protection while he held a valid student visa.

1. The applicant told the Tribunal that he wanted to extend his stay in Australia for as long as possible before applying for protection, and that his decision to do so was based on advice from his representative. The Tribunal notes the applicant stated he can no longer afford his representative’s fees, so he now represents himself. The applicant stated his representative had advised him to appeal the refusal of his last student visa application, and to then apply for a protection visa if he was unable to obtain any further student visas.

1. The applicant was visibly distressed as he explained these circumstances to the Tribunal. He acknowledged that he does not have evidence or witnesses to support his claims, but stated he has a real fear of what his previous activities may mean for his future life and family life. He asked the Tribunal to “please consider my miserable situation; I don’t want to be in trouble, be an unwanted member of my family, my life would be very difficult, please

give me sympathy with my situation.” He told the Tribunal that he wants to stay in Australia to continue his life and work, pursuing a better future, and asked the Tribunal to consider his situation. He implored the Tribunal that its decision would directly affect his future, and noted that he wished to be a “useful” person in Australia.

1. While the Tribunal does have sympathy for the applicant’s position, and accepts it is likely he did rely on advice from his representative prior to making his application for a protection visa, this does not overcome the lack of evidence the applicant has available at review to substantiate his claims. Without any information regarding the name, universal resource locator, or any other information about the social media forum where the applicant claims to have posted articles, the Tribunal is unable to investigate the applicant’s claims further. Nor can the Tribunal assist the applicant in finding these articles to help him demonstrate that he has been an active anti-Communist protestor while he has lived in Australia. The applicant maintains that he will be unable to turn up any documentary evidence because he has taken active steps to destroy all records he had.

1. Without any documentary evidence to support the applicant’s contentions regarding his social media activity in 2016, it is difficult for the Tribunal to be satisfied that the applicant did in fact engage in writing articles encouraging Vietnamese people to protest against the government, or for the Tribunal to be satisfied that the applicant attended a protest in 2016 where he was photographed holding a South Vietnam flag. The Tribunal accepts the applicant is genuinely fearful about returning to Vietnam. However, the Tribunal cannot be persuaded that the applicant’s fear is well-founded as required by the Act. The reasoning for this is set out below.

Well-founded fear of persecution in the future

1. The Tribunal notes the applicant’s claim to fear persecution in Vietnam relates to his political opinion, being that he is opposed to the communist ideology of the Vietnamese Government. His political opinion is more closely related to his contempt for the lack of freedom of press and freedom of speech afforded to Vietnamese nationals rather than a refutation of the Communist ideology underpinning the authority of the Vietnamese Government per se.

1. 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.

1. There is no evidence before the Tribunal to indicate that either the applicant or any member of his family has ever suffered any harm or persecution in Vietnam as a result of the applicant’s political opinion or protesting activities. The Tribunal notes the applicant claims he fears being arrested and taken away secretly by border authorities if he is returned to Vietnam, but there is no evidence available to suggest that the applicant is in fact a person of interest to the Vietnamese authorities.

1. As DFAT’s report suggests, it is difficult to make an overall assessment of risks to an activist given the lack of clear patterns indicating who may be arrested or when. Nonetheless, there is no evidence available to support the applicant’s contention that the Vietnamese Government, be it border authorities at the TSN Airport, or local police in his home town, seeks to arrest and detain the applicant or otherwise commute against him ‘significant harm’ as defined in s.36(2A) of the Act. The applicant does not deny a peaceful existence in Vietnam throughout his childhood, and he does not deny that he always had safe passage out of and into Vietnam until the time he last arrived in Australia in 2015. The Tribunal acknowledges the applicant’s claim that his political activism on social media occurred in 2016. However, there is no documentary evidence to substantiate the applicant’s claim that his family was approached seeking the applicant out for questioning following the alleged publication of him holding a South Vietnam flag.

1. The applicant asserts his protest activities largely centred around the Formosa Steel environmental disaster. DFAT’s country information report published on 11 January 2022 states:

The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.

1. In October 2022, DFAT stated:

While some activists have been prosecuted, protests responding to the Formosa Steel environmental disaster have ended. Formosa Steel is a Taiwanese company

responsible for an April 2016 chemical spill which decimated fish stocks and devastated fishing communities along Vietnam’s central coast. The company eventually agreed to pay $500 million in damages. The disaster provoked large protests against both Formosa and the government in part due to the heavy impact on the livelihoods of the affected communities. While the protests were generally permitted, throughout 2017-2018 several activists were sentenced to lengthy prison terms associated with their protests over the incident. DFAT reported in 2022 that Formosa protests are no longer occurring, at least on a large scale, due to a deal made with the company to provide compensation to victims.

1. The information available to the Tribunal at review suggests that even if the applicant had participated in the claimed protest activities in response to the Formosa Steel disaster, the prospect of ongoing persecution for those people known to have been actively protesting is minimal.

1. There is no evidence available at review to substantiate the applicant’s claims that he has been active against the Vietnamese Government through social media or any other means while he has been residing in Australia. Relying on the evidence provided by the applicant and the country information outlined above, the Tribunal is satisfied that, having considered the information available regarding the risks to political activists, the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason raised in his application or arising on the facts if he was returned to Vietnam.

1. Therefore, I find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a) of the Act.

The complementary protection ground

1. 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 he will suffer significant harm: s.36(2)(aa).

Member of the same family unit

1. 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

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

Mary Sheargold Member

1 see, e.g., MIAC v SZQRB [2013] FCAFC 33 at [245]-[246] (Lander and Gordon JJ)

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.

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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.

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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.

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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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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