1814077 (Refugee)
[2023] AATA 729
•10 February 2023
1814077 (Refugee) [2023] AATA 729 (10 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Khanh Hoang (MARN: 2015332)
CASE NUMBER: 1814077
COUNTRY OF REFERENCE: Vietnam
MEMBER:Senior Member G. A. F. Connolly
DATE:10 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision of the Department to refuse the grant of a protection visa and remits the matter with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(c)(i) of the Migration Act, because of membership of the same family unit as the first named applicant.
Statement made on 10 February 2023 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – member of opposition party Viet Tan – active participation in Viet Tan activities – birth of children in Australia – births not registered in Vietnam – relevant to exercise of Crown’s executive power – non-Australian citizen children born within Australian Crown’s realm – known no other country than Australia – face threats with removal from Australia – Crown’s rights and duties enlivened – applicant and children face high likelihood of significant harm if returned – decision under review remittedLEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister in what was the Department of Immigration and Border Protection (Department) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
The primary applicant (the applicant) is a wife and mother, aged [age] years, born in Vietnam and a citizen of Vietnam. Her husband, [named], aged [age], was also born in Vietnam and he was granted a protection visa by Australia on 03 April 2019. The applicant and her husband have two young children, both born in Australia: a daughter (aged [age]) who is an applicant in this case, and a son (aged [age]), who is not an applicant but whose interests will, obviously, be affected by the fate of his mother’s application. While the parents are Vietnamese citizens, the births in Australia of each of their daughter and their son was never registered with the relevant Vietnamese authorities. Both young children attend or are enrolled to attend [a]Primary School in [Suburb 1], New South Wales.
On 14 November 2013, the applicant was granted a TU-573 student visa.
[In] December 2016, the applicant married her husband at [a Catholic] Church in [Suburb 1].[1]
[1] Statutory Declaration made by [the applicant] on 22 July 2022 at [9].
On 10 January 2017, the applicant’s student visa was cancelled. The applicant was pregnant at this time.
On 24 January 2017, the applicant made her first application for a permanent protection visa, which was rejected because of invalidity issues.
On 15 March 2017, a further application was made for a permanent protection visa.
[In] 2017, the applicant’s daughter[was] born in Sydney.
On 26 April 2018, the Department refused the issue of a protection visa to the applicant.
On 15 May 2018, the applicant applied to this Tribunal for review of the Department’s decision to refuse the grant of protection visas to the applicants.
[In] 2019, the applicant’s son [was] born in Sydney, after the application to this Tribunal for review. While the son is not an applicant in this case, he is, per these reasons,
Proceedings before this Tribunal
The materials submitted by the applicant to this Tribunal to assist in the review of her case included the following:
A.Statutory Declaration sworn 22 July 2022;
B.Submissions dated 12 September 2022;
C.Statutory Declaration sworn 02 October 2022;
D.Further submissions dated 03 October 2022; and
E.Document entitled “Bundle of Evidence”, consisting of 459 pages, submitted 03 October 2022 with (A)–(D) above, to substantiate the applicant’s religious and political activism here in Australia, as well as concerning the position of her children.
Each of the materials in (A) to (E) above was read closely by me and form part of the evidence and arguments in the applicant’s case.
The matter was first heard in Sydney on 13 September 2022, was then adjourned, and was then resumed on 25 November 2022. The Tribunal hearing was conducted with the assistance of an interpreter both in the Vietnamese and English languages. The applicant appeared in person and was represented by Ms Hoang, Solicitor. The applicant provided evidence in support of her claims at both hearings. On both occasions, also, the Tribunal heard evidence in support of the applicant’s claim from [Mr A], a senior leader of the Vietnam Reform Revolutionary Party (Viet Tan) in Australia. Ms Hoang made submissions that assisted the Tribunal’s understanding of the applicant’s case.
CRITERIA FOR A PROTECTION VISA
The criteria for the grant of a protection visa are set out in s 36 of the Migration Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for this visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, relevantly, she or he 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.
A person is a refugee if, in the case of a person who has a nationality, they are outside their country of 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.
THE AUSTRALIAN CROWN AND THE PARENS PATRIAE JURISDICTION
While not a ground argued and/or relied upon by the applicant for the disposition of this case, I think it is important to make the following observations, which are relevant to other cases of this general kind, in which Australia is asked to provide a protection visa to an applicant, and to young children, born and growing up in Australia, but who are not citizens.
The particular status of Australia as a monarchical polity in which the Constitution (via s 61) vests the executive power in the Crown, to be exercised by the Governor-General as the monarch’s representative, is of critical importance.[2] The monarch is the head of the federal executive[3] and the Governor-General is charged with the “execution and maintenance” of the Australian Constitution.[4] As both Sir Owen Dixon[5] and W. Anstey Wynes[6] wrote, the Crown was (and is) the central element of the Constitution and the Crown predominates every aspect of Australian governmental power. The Crown’s role and its prerogatives are crucial to an understanding of the Australian constitutional order. While focus may be understandably drawn to the elected Parliament (Chapter I) or to the Judicature (Chapter III), the Crown occupies this central position in our Constitution. After all, as the preamble to the Constitution lays out, Australians unite, first, under the Crown and, only then, under the Constitution – and in that order of the ‘two unders’:
[2] “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
[3] Professor John M. Williams, “The Crown: its Nature and Role”, in Martin Hinton and John Williams (Editors), The Crown: essays on its manifestation, power, and accountability (2018) University of Adelaide Press, Adelaide (SA), at 2.
[4] Constitution, s 61.
[5] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304 per Dixon J.
[6] W A Wynes, Legislative, Executive, and Judicial Powers in Australia, (1962) at 89.
WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established…
As Professor Adrian Vermeule of Harvard University wrote recently, and most persuasively, in the context of the classical legal tradition, which underlies both the civil law and common law traditions, and which tradition helped create written and entrenched constitutions such as Australia’s own: “We have first to understand the law as it really is; only then can we understand where we have abandoned the law as it really is, and how to recover it.”[7]
[7] Adrian Vermeule, Common Good Constitutionalism: Recovering The Classical Legal Tradition (2022) Polity Books, Cambridge (UK), at 179.
Noting the foregoing, and the resulting duty to understand “the law as it really is”, any conscientious observer will immediately note that this Tribunal operates under statute[8] as a body that forms part of the executive government of the Commonwealth of Australia, the executive power of which is vested in the Crown.[9] All executive acts are acts by and on behalf of the Crown. There is no exercise of executive power, such as the review of administrative decisions done by this Tribunal, that is not an act which is by and on behalf of the Crown. Need it be said that the statute that the Parliament enacted to create this Tribunal only has legal force because of the royal assent exercised by the Governor-General.[10] Thus, the Crown’s enduring existence, its prerogatives, and particular duties, give rise to important if basic considerations which should inform both exercises of executive power and their review. Importantly, the position of the Crown that was outlined in 1667, that the Crown is “the fountain and head of justice and equity” - a proposition never doubted subsequently – must, too, be borne in mind.[11]
[8] Administrative Appeals Tribunal Act1975 (Cth).
[9] Constitution, s 61.
[10] Constitution, s 58.
[11] Baron Atkyns in Pawlett v. Attorney-General, Hardres Reports 465 at 469, cited in Dyson v Attorney General [1911] 1KB 410 at 421 by Farwell LJ.
Insofar as this Tribunal reviews administrative decisions that affect persons, often vulnerable persons, this Tribunal is, in a real sense, like the Crown itself, to use the words of the distinguished Justice Kirby, “…an instrument for the good government of a free society”.[12] This Tribunal is a body that exercises executive power that Chapter II of the Constitution vests in the Crown itself. Accordingly, it is important, when an opportunity arises, to set these matters out, with a concern for accuracy, brevity, and clarity, but also for stating, with thoroughness, that the exercise of executive power by the Crown, particularly in matters involving vulnerable persons, carries with it duties as well as rights.
[12] Hon Justice Michael Kirby AC CMG, “A centenary reflection on the Australian Constitution”, The Round Table (2001), Vol 361, 589-606, at 589.
Analogous cases. It is frequently the case in matters analogous to this one, as is human nature, that younger female applicants seeking protection by Australia, will make applications for protection visas, then wait for the resolution of their applications, while forming relationships, and then conceiving and bearing children – children who are then born in this country. These Australian-born children, while not Australian citizens, do, often, spend their earliest years in Australia, and will, over their childhood years, as their parents’ applications are resolved, know only Australia, the Australian community, the English language, and the norms and mores of Australian life. However, while these children are born in Australia, they are not Australian citizens. Thus, these Australian-born children share their parents’ vulnerability to removal to the country of their parents’ own nationality – a country which these Australian-born children have never known and which they, often, lack any of the language and socio-cultural skills to survive in, let alone flourish.
Crown’s duty to act fairly: In ordinary litigation in this country, and in other Crown jurisdictions, it has always been and remains the duty of the Crown to conduct itself as a “model litigant”. As a constitutional formula, this may be expressed, succinctly, as a duty to ensure that, where a matter is before a court (in Chapter III), it is the duty of the Crown as the executive government (in Chapter II) “to assist the court to arrive at the proper and just result”.[13] The Crown (whether of the Commonwealth or any State) is expected to conduct itself in all litigation as a party that is bound to behave, above all, with scrupulous fairness. As the first Chief Justice of Australia, Sir Samuel Griffith, wrote over a century ago in respect of the Court’s expectations:
[13] P & C Cantarella [1973] 2 NSWLR 366 at 383 per Mahoney J.
I cannot refrain from expressing my surprise … It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings ….
I am sometimes inclined to think that in some parts—not all—of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.[14]
[14] Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 per Griffith CJ.
The Crown must not only be fair but, also, it cannot take advantage, or even be seen to take advantage, of its own errors and defaults, and must instead act, and be seen to act, always, as the “model litigant”.[15] As stated earlier, this Tribunal exercises the executive power and operates as part of Chapter II of the Constitution. To be sure, this Tribunal is a Chapter II body and not a Chapter III court. But it cannot be doubted that – whether in a Chapter II tribunal or a Chapter III court – the Crown is bound in the same way to act, always, fairly towards applicants, particularly vulnerable persons. After all, whether in this Tribunal or in a Court, the Crown cannot be untrue to itself.
[15] SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368 per Beaumont and Einfeld JJ.
Crown’s duty to protect vulnerable persons: Moreover, in ensuring this fairness, the Crown has a parallel duty in cases that involve vulnerable persons, that of acting, when required, as Parens Patriae. The doctrine of Parens Patriae, which is Latin for ‘Parent of the Nation”, is an ancient doctrine that grants the inherent power and authority of the Crown to governments and courts, to protect vulnerable persons, such as those who are legally unable to act on their own behalf[16], children[17], wards of the state, persons with mental illness[18], and those others with diminished capacity.[19] The only limits on what may be done in the Parens Patriae jurisdiction are the requirements of justice.[20] As the great Lord Chancellor, Lord Eldon, said in 1827 of the Crown and the doctrine of Parens Patriae:
[I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.[21]
So, for example, as concerns Chapter III courts, these courts exercising the Parens Patriae jurisdiction can make a diverse range of orders for the protection of a variety of classes of vulnerable persons. In the words of the High Court, “the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves.”[22] Moreover, the duty imposed and power conferred by the Parens Patriae doctrine on the Crown endures, always, regardless of whether or not a particular proceeding is brought either as a matter for administrative review or for determination by a court.
In Teoh’s Case, Justice Gaudron said this in respect of the position of children who were Australian citizens:
What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings, which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.[23]
It is difficult, as a foundational proposition, to understand why these considerations would not, also, apply to other vulnerable persons, such as children born in this country, within the territories of the Australian Crown, and who have grown up in Australia, even if they are not, or not yet, themselves, Australian citizens. On any view, these are vulnerable children, who have only known Australia, who often only speak English, who have commenced their lives and educations in Australia, and whose families and friends are here, and for whom the prospect of their removal and separation from Australia to countries that their parents may know but these children certainly do not know, must, inevitably, risk them suffering anxiety and trauma, perhaps grave harm.
[16] MAW v Western Sydney Area Health Service [2000] NSWSC 358 at [27] and [31] per O'Keefe J.
[17] Re Anita [2015] NSWSC 312 at [34] per Robb J.
[18] Re S, an incapacitated young person [2017] NSWSC 859.
[19] GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23] to [32] per Lindsay J.
[20] AMS v AIF [1999] HCA 26 at [85]-[86] per Gaudron J.
[21] Wellesley v Duke of Beaufort (1827) 38 ER 236 at 243, cited with approval in Marion’s Case (1992) 175 CLR 218 at 258 per Mason CJ, Dawson, Toohey, and Gaudron, JJ.
[22] Marion’s Case (1992) 175 CLR 218 at 259 per Mason CJ, Dawson, Toohey, and Gaudron, JJ.
[23] Teoh’s Case (1995) 183 CLR 273 at 304 per Gaudron J.
It is unnecessary for me to apply these considerations to this case, as this case can be resolved much more simply and directly by application of the facts to well established law. I have determined that I do not need to rely on Crown doctrines to resolve the applicant’s case in her favour, particularly noting the overwhelming evidence in support of her case.
However, the considerations I discuss above are relevant to exercises of the Crown’s executive power, especially where children are born within the Australian Crown’s realm, and they, while not Australian citizens, have known no other country than Australia, and they are threatened with removal from Australia to countries that are, in every sense, ‘foreign’ to them. The Crown’s rights and duties must be enlivened in such a case, particularly where the interests and welfare of children or other vulnerable persons are concerned – and these interests and their welfare will be affected (positively or negatively) by the decisions of an executive decision-maker. While the obligations of the Crown as model litigant and Parens Patriae are not identical, they do overlap by recognising the Crown’s duties to always act justly and to protect those vulnerable persons who are within the Crown’s realm. To restate what must be obvious: the Crown cannot be untrue to itself.
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84, made under s 499 of the Migration 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The hearing before this Tribunal is a hearing de novo and not an appeal, strictly speaking, at least not an appeal to any court. The matter before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.
In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Federal Court said this of the Tribunal’s task:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.[24]
[24] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.
It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits.
CONSIDERATION OF CLAIMS, EVIDENCE, AND FINDINGS
In considering whether there is a real risk that any applicant or applicants will, indeed, suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to a foreign country, the Tribunal notes that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in relation to the “refugee” criterion: s 36(2)(aa) of the Migration Act.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that the claim is made for the reason(s) stated. Similarly, just because an applicant claims she or he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”.
At all times, it is the duty of the applicant or applicants to satisfy the Tribunal that all statutory elements of their claim(s) are made out by their case. A decision-maker cannot make the applicant’s case for them. It is the responsibility of an applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[25] Nor is the Tribunal required to accept uncritically any allegations made or history narrated by an applicant.[26] Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out.[27] It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee.[28]
[25] Migration Act, s 5AAA.
[26] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; MIEA v Guo (1997) 191 CLR 559 at 596 per Kirby J.
[27] Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348].
[28] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ.
The issue in this case is whether the applicant has proved that she has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm: s 36(2)(aa) of the Migration Act. 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.
The issue before the Tribunal in this case is whether the applicant is a person to whom Australia owes protection obligations. For the reasons that follow, the Tribunal has concluded that this applicant has proved her case and that she is owed protection obligations by Australia.
Viet Tan
The Viet Tan[29] is an opposition party (that is run in and from exile) which is considered by the Vietnamese government to be a terrorist group.[30] The Vietnamese communist regime considers that the Viet Tan and other opposition forces, which are pro-democracy, are considered to be terrorist organisations.[31] Given that Vietnam does not allow for domestic opposition parties,[32] what local opposition to the communist regime there is in Vietnam is, of necessity, supported by the Vietnamese diaspora based overseas. This foreign support to the Vietnamese opposition is required, particularly, given the ever-present risk to any domestic opponent of being detained and abused by the security apparatus of the Vietnamese communist regime.[33]
[29] See Library of Congress here: [accessed 21 November 2022].
[30] Radio Free Asia, Vietnam: Rights lawyer disbarred, 16 August 2011, available at: [accessed 16 November 2022].
[31] Leaders of Viet Tan gave evidence to the Parliament’s Joint Standing Committee on Foreign Affairs, Defence, and Trade - Human Rights Subcommittee, hearing on “Human rights mechanisms and the Asia-Pacific”, on 19 March 2009.
[32] UK Home Office, “Report of a Home Office fact-finding mission to Vietnam – Conducted between 23 February and 1st March 2019” (9 September 2019) p.9.
[33] UK Home Office, “Report of a Home Office fact-finding mission to Vietnam – Conducted between 23 February and 1st March 2019” (9 September 2019) p.9; Australian Department of Foreign Affairs, “DFAT Country Information Report Vietnam” (13 December 2019) p.25.
The Viet Tan movement advocates for democracy in Vietnam and is active among the Vietnamese expatriate community in Australia.[34] It is noteworthy for this case that, in 2016, the Vietnamese government declared Viet Tan a terrorist organisation[35] and stated that anyone involved with the group would be considered an accomplice in terrorism.[36] The Vietnamese communist government pursues, in the words of an expert observer of Vietnamese politics and history, Dr Carlyle Thayer, a policy of, ‘Three Noes’ – no political opposition, no political pluralism, and no multi-party system.”[37]
[34] Department of Foreign Affairs and Trade, “DFAT Country Information Report Vietnam” (13 December 2019) p.25.
[35] Human Rights Watch, letter to Foreign Minister, Senator Marise Payne, dated 25 November 2019.
[36] Associated Press, “Vietnam declares San Jose-based Viet Tan a terrorist group” (7 October 2016).
[37] “The Future of Vietnamese Civil Society: An Interview with Carlyle Thayer”, Georgetown Journal of Asian Affairs (2019), Vol 5, 117–126, at 121.
The Viet Tan, as a political movement, advocate for peaceful democratic change in Vietnam.[38] The Viet Tan are based in the United States but are also very active in Australia among expatriate Vietnamese communities.[39] This Tribunal is aware from country information sources of the Vietnamese Government’s persecution of the Viet Tan movement. The DFAT 2019 report on Vietnam said this in respect of recent cases:
Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include: …
In November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist:
DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.[40]
(Emphasis added)
[38] See Library of Congress here: [accessed 21 November 2022].
[39] Department of Foreign Affairs and Trade, “DFAT Country Information Report Vietnam” (13 December 2019) p.25.
[40] Department of Foreign Affairs and Trade, “DFAT Country Information Report Vietnam” (13 December 2019) paragraphs 3.53–3.56.
There is significant recent reporting of Vietnamese (including dual Vietnamese-Australian citizens) being arrested and sentenced to lengthy prison terms where their conduct was merely to peacefully oppose the Vietnamese communist regime, resulting in them being charged with engaging in and/or financing terrorist activities.[41] While Viet Tan seeks peaceful reform, both it and its supporters are treated as terrorists by the Vietnamese communist regime.[42] Even just campaigning for human rights in Vietnam, as a domestic dissident, is often linked to Viet Tan, however tenuously[43]. Anyone who does support, or who may be considered to support, Viet Tan’s aims of peaceful democratic reform, run the risk of being accused by the Vietnamese communist regime of wanting to overthrow the state.[44]
[41] Australian Department of Foreign Affairs, “DFAT Country Information Report Vietnam” (13 December 2019) p.26.
[42] Special Broadcasting Service (SBS), “Effectively a death sentence: Australian retiree imprisoned in Vietnam loses final appeal” (3 March 2020).
[43] Human Rights Watch, “Vietnam: Drop Charges Against Rights Campaigner” (10 September 2018).
[44] Australian Department of Foreign Affairs, “DFAT Country Information Report Vietnam” (13 December 2019) p.25.
The Vietnamese government has a long history of pursuing and prosecuting, and imprisoning, those associated with Viet Tan. This has included those who have received money and training from foreign sources.[45] The Vietnamese government will detain, without trial, those persons suspected of being a member of Viet Tan for significant periods of time.[46] For those who are convicted in the Vietnamese courts of being members of Viet Tan, and thus part of subversive efforts in the view of the Vietnamese government, significant periods of imprisonment await.[47] Political prisoners are treated more harshly than other prison inmates. It is likely, from NGO reporting, that torture is commonly inflicted upon political prisoners.[48] The 88 Project reports that political prisoners are treated as a different class of criminal than ordinary prison inmates, and these political prisoners receive treatment “which often amounts to torture and inhumane treatment”.[49] In October 2020, an American prisoner of Vietnamese descent was released from incarceration in Vietnam, having been charged with offences against the Vietnamese communist regime, and subjected to mistreatment in prison and a sham trial in the Vietnamese courts.[50]
[45] Radio Free Asia, Vietnam: Rights lawyer disbarred, 16 August 2011, available at: [accessed 16 November 2022].
[46] Radio Free Asia, Vietnam: Activist returns home dejected, 31 January 2013, available at: [accessed 16 November 2022].
[47] UN News Service, UN human rights office concerned over convictions of 14 activists in Vietnam, 11 January 2013, available at: [accessed 12 June 2018].
[48] The 88 Project, “Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018–2019” (5 November 2020) p.3–4.
[49] The 88 Project, “Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018–2019” (5 November 2020) p.7.
[50] Radio Free Asia, “Recently Released US Citizen Describes Mistreatment in Vietnamese Prison” (28 October 2020) [accessed 17 November 2022].
In respect of Australia, and the Vietnamese Government’s surveillance of Australia and the activities of Vietnamese expatriates, it is probable that the Vietnamese government does closely follow the activities of Vietnamese nationals in Australia and especially those who join Viet Tan to protest the communist regime. There is certainly evidence of Vietnamese government apparatus (or its cyber-hacking agents) conducting cyber campaigns against dissidents.[51] The mission of Vietnamese embassies, including in Australia, is to track and surveil the activities of expatriate Vietnamese, both citizens and those who are of Vietnamese descent. Vietnamese pro-democracy activists, even when living abroad, have suffered from censorship and been the targets of cyberattacks.[52] In particular, the Vietnamese communist regime does not accept any criticisms, especially those that are made or transmitted by Vietnamese diaspora who are living abroad.[53]
[51][52] Freedom House, Freedom on the Net 2019: Vietnam, [accessed 21 November 2022].
[53] Thayer, Carlyle A., “Comments for the Australian Refugee Review Tribunal”, Johns Hopkins University Washington, D.C., 18 March 2005, quoted in RRT Country Research, Research Response VNM31954, 02 July 2007 at Q6.
The Applicant
On my review of the evidence, the applicant has successfully made out her case that she, like her husband - who has already been granted a protection visa by Australia – is a member of Viet Tan and a public opponent of the Vietnamese communist regime. The applicant also successfully made out her case that if she was returned to Vietnam, she would, almost inevitably, suffer grave harm, as would her children, who would likely be removed from her.
The applicant gave evidence of her history since arriving in Australia in November 2013. As set out in the beginning of these reasons, the applicant made her first claim for a protection visa in January 2017 and, when that was refused, she made another claim for protection in March 2018.[54]
[54] Statutory Declaration made by [the applicant] on 22 July 2022 at [9].
I note that the applicant and her husband have been involved with Viet Tan since the beginning of their relationship in June 2016.[55] The husband was first invited to join Viet Tan. The applicant also joined Viet Tan [in] November 2018.[56] The evidence supplied in support of the proposition that the applicant is a well-known and public member of Viet Tan, and thus would be a certain target for persecution by the Vietnamese communist regime, is overwhelming.
[55] Statutory Declaration made by [the applicant] on 22 July 2022 at [17]ff.
[56] Statutory Declaration made by [the applicant] on 22 July 2022 at [23].
The local Viet Tan leader, [Mr A], gave oral evidence to the Tribunal in support of the applicant’s case. [Mr A] was born in [year] and arrived in Australia as a refugee [in] 1982. [Mr A] actively recruits members for Viet Tan from among the local expatriate Vietnamese community. [Mr A] said that the applicant and her husband had been coming to Viet Tan events since 2016 but that he first properly met the applicant and her husband in May 2018, after which he quickly agreed that they should both apply to join Viet Tan. [Mr A] was at pains to stress that a probation period was imposed by Viet Tan to allow for vetting of the applicant and her husband, as the Vietnamese communist regime was known to try to infiltrate informers and spies into the Viet Tan movement abroad. Even so, the applicant and her husband were granted membership by November 2018. [Mr A] said that the applicant and her husband were regular participants in the protests by Viet Tan against the Vietnamese communist regime and propagation of the Viet Tan message. The applicant, [Mr A] said in his evidence, ran a vigorous social media campaign both for Viet Tan and against the Vietnamese communist regime. [Mr A]’s evidence was that the applicant, like any member of Viet Tan, would, if she returned to Vietnam, face the certainty of being arrested by the Vietnamese authorities. [Mr A] also expressed his great concern that if the applicant did return to Vietnam, then she would be immediately imprisoned and lose custody of her two children, potentially forever. [Mr A] noted that insofar as the applicant had been living outside Vietnam for some time, and that her two children’s births in Australia have never been registered with the Vietnamese authorities, the two young children did not exist for the purposes of the Vietnamese communist regime. Accordingly, both of these young children would face an extraordinarily difficult existence in Vietnam and, in particular, would struggle to ever be enrolled in Vietnamese schools or receive healthcare in Vietnam.
Conclusion regarding the Applicant
Overall, the applicant proved, to the comfortable satisfaction of the Tribunal, that she was heavily involved in the activities of Viet Tan[57], particularly those activities carried out in the expatriate Vietnamese community in Sydney, but also, via the internet, to aid the Viet Tan campaign throughout the Vietnamese diaspora.[58] In support of her application, the applicant had numerous references from senior officials of Viet Tan in Australia.[59] The images and documentary evidence showing the applicant’s long involvement in Viet Tan and its political activities (including protests) against the Vietnamese government, all speak for themselves.[60] There is no possibility that the applicant would (ever) be viewed with disinterest or objectivity by the Vietnamese communist authorities. Rather, if the applicant was removed to Vietnam, then she would, on any view, be at the mercy of the security apparatus of the Vietnamese communist regime.
[57] Statutory Declaration made by [the applicant] on 22 July 2022 at [30]-[39].
[58] Applicants’ Political Evidence Bundle, 2016–2022, submitted 22 July 2022.
[59] Applicants’ Political Evidence Bundle, 2016–2022, submitted 22 July 2022.
[60] Applicants’ Political Evidence Bundle, 2016–2022, submitted 22 July 2022.
Further, it is simply impossible to ignore the unfathomably cruel fate that would await the applicant’s two young children if the applicant was returned to Vietnam. In all likelihood, the applicant would be both immediately imprisoned and, as a political prisoner, denied further contact with her children. Her two children were, again, born in Australia and have no Vietnamese birth certificate, passport, or identity documents. These two young children have no status in or under the Vietnamese communist regime. These two young children would have no, or only a very limited, chance to obtain schooling and healthcare in Vietnam. What would actually become of these two young children, effectively orphaned, in Vietnam, is unknowable – but to even pose the question itself should horrify any decision maker. On the Australian Government’s own reporting on Vietnam, it is a country in which children, especially girls, are trafficked, including for adoption (and who knows what else).[61] Vietnam, overall, is a country that DFAT says is a “source, transit and destination” for human trafficking, especially of women and children.[62] It is quite possible that the applicant’s two young children, who have no status in Vietnam and with their mother made a political prisoner, would be faced with a horrific future as de facto orphans – an horrific future in which they had no protection against the worst crimes and abuses being inflicted upon them.[63] It is, to put the matter plainly, a disgrace, unconscionable and shameful, that the Department was even proposing to risk such a fate for two young children, in its rejection of the mother’s meritorious claim for protection by Australia.
[61] Australian Department of Foreign Affairs, “DFAT Country Information Report Vietnam” (13 December 2019) at [3.86]-[3.87].
[62] Australian Department of Foreign Affairs, “DFAT Country Information Report Vietnam” (11 January 2022) at [3.87]-[3.90].
[63] Statutory Declaration made by [the applicant] on 22 July 2022 at [40]-[45].
FINDINGS
On the evidence before the Tribunal, I am satisfied, indeed, very well satisfied, that the applicant is a sincere and committed member of Viet Tan, of the kind that would, if returned to Vietnam, face very real risks of suffering significant harm, including torture, perhaps even death. I am satisfied, also, on the evidence before the Tribunal, that the applicant would - at the very least – suffer harassment, discrimination, and threats of arrest, for reasons related to her activism against the Vietnamese communist regime. I am well satisfied that the applicant is already now, or would quickly be, identified as a member of Viet Tan in Australia and that, were she returned to Vietnam, she would be of adverse interest to the security apparatus of the Vietnamese communist regime.
Further, on the evidence before the Tribunal, I am well satisfied that the applicant, if she were removed to Vietnam, would likely be arrested, and charged by the Vietnamese government for contravening the criminal code, and that, at the very least, she will become a political prisoner, potentially for a very long period, and, be permanently separated from her young children. In these circumstances, I consider it a certainty that the applicant would, while a prisoner in the custody of the Vietnamese security apparatus, be subjected to torture, or to cruel or inhuman treatment, or to other degrading treatment or punishment. I cannot see, on the voluminous evidence of the Vietnamese communist government’s conduct towards dissidents, how any different conclusion could possibly be reached. There is no way that the applicant, especially as a public dissident who was living in Australia, could, on her return to Vietnam, reasonably hope to avoid (or even unreasonably hope to escape) the security apparatus of the Vietnamese communist regime.
Accordingly, I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm as defined in s 36(2A). Therefore, I find that the applicant does satisfy the criterion in s 36(2)(aa).
In respect of the applicant’s credibility, she appeared at both hearings and gave her evidence in a respectful and, at times, especially in the second hearing, forthright and open manner, often, it must be said, through tears, especially when discussing her children’s potential fate. It was clear to the Tribunal that the applicant was answering questions honestly, even if she seemed initially intimidated by the proceedings. The applicant was genuine and candid, both in respect of the history of her application and the position of her husband, and she was, particularly, open and honest in respect of what she feared would happen to herself and to her children. While it may be unusual for a protection decision to mention these details in this way, it is also the case that this matter was heard over two separate days, and on both days the applicant’s conduct was scrutinised and found to be that of a consistently honest and reliable, if at times obviously scared, witness. It is to the applicant’s credit that, even when under great stress in making her case to this Tribunal, especially as it concerns her children, she did so in a sincere, direct, and honest manner.
While the evidence does not establish that the applicant left Vietnam because she was a political dissident, or revolutionary, the applicant has, since arriving in Australia, been demonstratively and very publicly supportive of Viet Tan’s activities in the past seven years, both as a Vietnamese expatriate and then a member of Viet Tan. The Tribunal accepts that, if the applicant returns to Vietnam, it is very likely that she, as a member and public supporter of Viet Tan, will risk the high likelihood of significant harm being done to her, and to her very young and most vulnerable children. Indeed, it is difficult to see how, on the evidence of the Vietnamese government’s posture towards dissidents, especially Viet Tan, that this applicant, especially, could avoid suffering the gravest of harm.
It follows that, on the information presented to the Tribunal during the preparation and hearing of this claim, the Tribunal is well satisfied that the applicant faces the very real chance, indeed the very high likelihood, of suffering serious harm or significant harm in Vietnam for the reason of her political beliefs. Australia is obligated to protect anyone in the position of the applicant and her children.
For these reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia does, indeed, have protection obligations and that she satisfies the criterion set out in s 36(2)(aa). The Department’s decision to refuse the grant of a protection visa to the applicant must be set aside.
The Tribunal is also satisfied that the two young children of the applicant are dependent children. The Tribunal accepts that these two young children are and will be for many years into the future, wholly or substantially reliant on the applicant and their father (the applicant’s husband) for financial support. The Tribunal is satisfied therefore that these two young children are also members of the same family unit. While only the daughter (aged 5) is an applicant in this case - the son (aged 3), having been born after the application to this Tribunal, is not an applicant in this case - clearly each of the applicant’s daughter and her son satisfies s 36(2)(c)(i) of the Migration Act and each is owed protection obligations by Australia.
The Tribunal sets aside the Department’s decision and directs that the applicant satisfies s 36(2)(aa) of the Migration Act and remits this matter for reconsideration in accordance with this statement of decision and reasons.
DECISION
The Tribunal sets aside the decision of the Department to refuse the grant of a protection visa and remits the matter with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii) that the other applicant satisfies s 36(2)(c)(i) of the Migration Act, because of membership of the same family unit as the first named applicant.
Statement made on 10 February 2023 at 4:10pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals TribunalAttachment - 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.
…
Amnesty USA, “Vietnamese activists targeted by notorious hacking group”, 23 February 2001,
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