1814583 (Refugee)

1814583 (Refugee) [2023] AATA 313 (18 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Khanh Hoang
CASE NUMBER: 1814583

COUNTRY OF REFERENCE: Vietnam
MEMBER:Wayne Pennell
DATE:18 January 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 18 January 2023 at 8:39am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – Formosa chemical incident demonstrations – Viet Tan member – fear of detention – delay in applying for protection – political activities in Australia – household registration – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (the delegate) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 27 April 2018.
The applicant who claims to be a citizen of Vietnam, applied for a protection visa.[2] The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore she was not a person in respect of whom Australia has protection obligations as outlined in the Act.[5] The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there would be a real risk of her suffering significant harm and she was not a person in respect of whom Australia has protection obligations as defined in the Act.[6]
[2]The applicant’s application was received by the Department of Home Affairs on 25 August 2017.
[3]The delegate’s refusal was made on 27 April 2018.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a).
[6]Migration Act 1958 (Cth), s 36(2)(aa).
The applicant filed an application with the Tribunal to review the delegate’s decision and accompanying that application was a copy of the delegate’s decision.[7] She was represented in relation to the review and at a subsequent time, she was advised that the Tribunal had considered all the material relating to her application but was unable to make a favourable decision on that information alone.[8]
[7]The applicant’s review application was filed with the Tribunal on 19 May 2018.
[8]The Tribunal advised the applicant on 8 December 2022.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[9] Initially, the review hearing was listed for 4 January 2023, however due to scheduling issues, the hearing was rescheduled to 11 January 2023. At a subsequent time, the applicant’s representative advised of her unavailability for that later date and requested another date. The Tribunal then listed the matter for a hearing on 16 January 2023. The Tribunal notes that the applicant accepted the invitation to attend the review hearing to give oral evidence and to present arguments. She also advised that there were two witnesses to provide evidence to support her application.
[9]Migration Act 1958 (Cth), s 425. The Tribunal’s review hearing was listed for 10 January 2023.
On the day of the review hearing, the applicant and her witnesses appeared before the Tribunal at the scheduled time and place. Their evidence is discussed later in these reasons.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] That is, the applicant 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.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]
[19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
Country of reference and Applicant’s identity
The applicant claims to be a Vietnamese citizen and provided a copy of her passport to authenticate this claim.[21] The Tribunal accepts the applicant’s identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is the applicant’s country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]The applicant’s passport was issued in Vietnam [in] 2013.
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
Mandatory considerations
In accordance with Ministerial Direction No. 84 made under the Act,[24] 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.
[24]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF THE APPLICANT’S CASE
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[25]
[25]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing the claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]
[26]Migration Act 1958 (Cth), s 5AAA.
[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169 – 170.
APPLICANT’S ORIGINAL PROTECTION CLAIMS
On 25 July 2013, the applicant was granted a higher education (‘student’) visa. She arrived in Australia [in] August 2013. After having lived in Australia for four years, she applied for a protection visa.
Initially, the applicant claimed that she had not previously experienced harm when she lived in Vietnam, although she did witness the harm and suffering experienced by her friends. Notwithstanding that disclosure, she did not say what she had witnessed but did claim that after she left Vietnam, a number of her friends in Vietnam had been arrested and detained for demonstrating against the Vietnamese government’s handling of the Formosa chemical spill. She claimed that her parents told her that because she was associated with the same group of friends, she would be targeted, arrested and detained if she returned to Vietnam. This is the reason why she did not return back to Vietnam, and she became an unlawful non-citizen for a period of about three years.
In explaining what harm or mistreatment she would be subjected to if she returned to Vietnam, the applicant claimed that the harm would include being arrested and the mental terrorising and torture of being detained. She also cited that the harm would also include being followed every day and her activities being monitored. She said that this would happen because Vietnam is being ruled by the communist government which practices through a totalitarian regime. She said that innocent victims are at time subjected to the government’s arbitrary arrest and torture.
In outlining her reason that she could not be protected within Vietnam, the applicant said that the authorities could not protect her from the communist government and the safest and best place to be protected was in prison. She went on to claim that she could not relocate to another place within Vietnam for protection because the Vietnamese government uses the household registration book to strictly control the movement of the Vietnamese citizens. Nobody is able to relocate to another part of the country if they do not have the introduction of the local police authority. She added that people who are blacklisted like her cannot relocate to another part of the country.
When explaining the original claims made within her application, the applicant said that in March to April 2017 she went to political events which she described as rallies where she protested against the actions taken by the Vietnamese government over the Formosa chemical spill. Those rallies were held at the local markets near where she lived. When asked if there was any photographs or video footage of her at those events, she explained that at that time she did not think about posting anything like that on [social media]. When asked about her knowledge of the circumstances surrounding the Formosa chemical spill, the Tribunal is satisfied that her explanation of her knowledge of that event was consistent with the information contained within the DFAT country information report.
That is, the Formosa chemical spill in 2016 was Vietnam’s worst ever environmental disaster. The disaster killed approximately 115 tonnes of fish and devastated, and in many cases ended the livelihood of fisheries workers. Formosa paid US$500 million to the Vietnamese government by way of compensation to clean up the disaster and to compensate those business and citizens affected. The demonstration demanding more compensation led to arrests of both street demonstrators and online activists, notably including Catholic clergy and their followers. The DFAT understands that Formosa demonstrations are no longer occurring, at least on a large scale. Other sources told the DFAT that some citizens remain dissatisfied and have launched legal appeals against the compensation paid, which they considered to be inadequate.[28]
[28]The DFAT Country Information Report, Vietnam, dated 11 January 2022, page 20, paragraph 3.66.
When asked by the Tribunal if she was a person of interest to the Vietnamese government authorities because of her involvement in the rallies and protests in Australia, she confirmed that to her knowledge she was not.
When carefully assessing the applicant’s claims and weighing her evidence against those claims, the Tribunal is not convinced that she possesses any actual public political profile or any imputed political profile with respect to any involvement she may have had with, or participation in the rallies she claimed that have attended where she protested against the Vietnamese government’s handling of the Formosa chemical spill. On her own admission, it was only the applicant’s mother telling her that she should not return to Vietnam because she could be arrested that convinced her not to return.
The Tribunal’s finds that there is no probative or tangible evidence of the applicant being a person of interest to the Vietnamese authorities, and nor has she been placed on a blacklist because of her involvement in protests against the Vietnamese government’s response to the Formosa chemical spill. The Tribunal also finds that there is no basis to her claims that she has a well-founded fear of returning to Vietnam because she was involved in some rallies or protests in Australia about the Formosa chemical spill. It is also the Tribunal’s finding that the original claims made in her application for a protection visa should not be accepted by the Tribunal and they are rejected accordingly.
Notwithstanding those findings, the applicant has new protection claims to be considered by the Tribunal. Those new claims relate to her involvement and connection with the Viet Tan organisation, and they were raised in her statutory declaration which she provided to the Tribunal in the week prior to the scheduled review hearing.[29] Those new claims are discussed later in these reasons.
[29]Applicant’s statutory declaration dated 10 January 2023.
Delay in lodging an application for protection
In respect to any consideration about the delay between the applicant’s arrival in Australia and her application for a protection visa, the Tribunal is guided by the principle that even a three month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.[30]
[30]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.
When applying the above principle to an assessment of the applicant’s original claims, the Tribunal notes the significant delay between her arrival in Australia to when she lodged her application. Because a significant delay is not behaviour indicative of someone who fears for their physical safety,[31] ordinarily the applicant’s display of a lengthy delay in lodging her application would otherwise support an adverse credibility finding as well as a finding that she does not have a well-founded fear of harm. That could have possibly led the Tribunal to reach a conclusion that significant doubt was held with respect to the genuineness of her original claims that she has a well-founded fear of persecution if she was to return to Vietnam.
[31] Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423; Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370, [22].
However, the Tribunal acknowledges that notwithstanding its finding that she is not in need of protection because of the circumstances surrounding her original claims, what is required for the Tribunal to consider are the new claims which she raised in respect to her association with the Viet Tan, and the association of her husband with that same organisation. In that regard, it is the Tribunal’s view that the significant delay does not impose a credibility issue with respect to those new claims.
APPLICANT’S NEW PROTECTION CLAIMS

After being advised of the Tribunal scheduling her application for a review hearing, the applicant provided to the Tribunal a statutory declaration setting out her evidence to support her application. The evidence contained within her statutory declaration did not address her original claims, but more so focused on and addressed her new claims.
In respect to her personal circumstances, she said that she married her husband, [Mr A] in 2018 and they have two children. Their oldest child was born in [year], and their youngest child was born in [year]. In respect to her oldest child, the applicant provided the Tribunal with evidence verifying that her eldest child has been diagnosed [with a profound disability] and he will remain so throughout his life.[32]
[32]Letter dated 6 July 2020 of [Dr C], [Agency 1] exhibited by the applicant at page 5 of her photo evidence booklet filed with the Tribunal on 10 January 2023.
In respect to her new claims, the applicant said that if she returned to Vietnam, she will be subjected to harassment, questioning, cruel treatment and imprisonment for reason of:
a.   I am an official member of Viet Tan and blacklisted by the Vietnamese government. The Vietnamese government follows all Viet Tan member's activities and systematically discriminate any individuals associated with the group as 'opposing the government'. I will be persecuted and sentenced to prison similar to all other Viet Tan members.
b.   I am a [social media] blogger who publicly shares sensitive information and condemn the Communist Vietnamese government's unjust and corrupt activities towards their people. These frequent activities of sharing, posting, and commenting to demonstrate my political opinions are considered illegal with the intention to overthrow the government. I will be arrested and punished for these actions.
c.   I actively participate in many political activities in Australia to demonstrate my support for democracy and human rights for Vietnam and the people. These activities are highly publicised and are heavily monitored by the Vietnamese Government. My attendance can attract the attention of many powerful Vietnamese authorities which will threaten my livelihood upon returning to Vietnam.
d.     I am also married to the [Position 1] of Viet Tan [in Region 1], [Mr A] therefore, my children and I will be greater risk of returning to Vietnam as my husband is the [position 1] of Viet Tan [in Region 1] who organise projects against the Communist Vietnamese government. If I was to return to Vietnam, my children will also return and will face possibility of separation, neglection and discrimination from the Vietnamese government due to my political activities.[33]
[33]Applicant’s statutory declaration dated 10 January 2023, page 1, paragraph 3.
After arriving in Australia in 2015, she moved to Melbourne where she met a group of Vietnamese friends. It was through her association with her friends that she met her husband. At that time, he also lived in Melbourne.
She said that her friends taught her more about the current circumstances which they had experienced of the political situation in Vietnam. She wanted to learn more, and she then discovered that some of her friends were member of the Viet Tan.[34] She became aware that her husband had joined the Viet Tan in Melbourne. It was through her association with him that she began to learn more about the Viet Tan and that organisation’s political goals. She read sensitive information on the Viet Tan [social media] page, as well as other information posted by political bloggers.[35]
[34]Applicant’s statutory declaration dated 10 January 2023, page 2, paragraphs 9 – 10.
[35]Applicant’s statutory declaration dated 10 January 2023, page 2, paragraph 11.
The applicant went on to explain that in early 2017, she and her husband moved [interstate] where she was introduced to the greater Vietnamese community and the [local] Viet Tan organisation. Because her husband was already a member of the Viet Tan, she was often invited to some of their public events such as the commemoration of the National Resentment Day, also known as the ‘Fall of Saigon’ held on 30 April each year. She also attended the event called the ‘Eastern March’ which is a celebration of the founder of Viet Tan.
The applicant claimed that it was through attending these political events that she began to understand more about Viet Tan. She became supporter of Viet Tan, and she believes that her beliefs and values align with those of the Viet Tan.[36]
[36]Applicant’s statutory declaration dated 10 January 2023, page 2, paragraphs 12 – 14.
The applicant claimed that since her initial interaction with the Viet Tan in [Region 1], she has continued to participate in events hosted by Viet Tan such as fundraising, protests, training, and bonding activities. She claimed that despite active involvement, she could not become a full-fledged member because of family commitments. It was not until July 2022 that she officially joined as a member of the Viet Tan[37] and since then she has been designated the role of maintaining the organisation’s social media blogs and posts, and through that activity she actively connects with, and recruits people living in Vietnam.
[37]Applicant’s statutory declaration dated 10 January 2023, page 2, paragraph 15.
The applicant claimed that in June 2022, her husband was appointed to be the [position 1] of the [Region 1 group] of the Viet Tan. In that role, his responsibilities encompass political campaigns, activities, and decisions to assist other members and the organisation. Her husband is responsible for networking with individuals within Australia and Vietnam to share information about the political situation in Vietnam and invite others to join the Viet Tan organisation. She suggested that because he is the [position 1] of the [Region 1 group] of Viet Tan, she and her family will be at greater risk of persecution and punishment from the Vietnamese government should she return to Vietnam. She claimed that she is certain that the Vietnamese government is aware of her association with Viet Tan, as well as being aware of her political activities against the Vietnamese government. This is because she and her husband participate in political demonstrations to criticise the Vietnamese government, and her husband is the main organiser of those demonstrations. If she returned to Vietnam she would be detained for questioning, arrested, and sentenced to prison.[38]
[38]Applicant’s statutory declaration dated 10 January 2023, pages 2 – 3, paragraphs 17 – 18.
In discussing her associated activities with the Viet Tan, the applicant claimed that she often took photographs to share with others on her [social media] page. Those photographs identify her face and some of those photographs are reposted on the official Viet Tan [social media] page which is regularly monitored by the communist Vietnamese government. She went on to claim that she regularly posts comments on her own private [social media] page and shares her political opinion about the communist Vietnamese government on the Viet Tan [social media] page. The Tribunal notes that the applicant’s concession that she uses a pseudonym and not her own name, although a photograph of her is clearly displayed as the pseudonym’s profile photograph.[39]
[39]Applicant’s statutory declaration dated 10 January 2023, page 3, paragraphs 19 – 22.
The applicant claimed that because of the involvement of her and her husband with the Viet Tan organisation, she is certain that they are both blacklisted by the Vietnamese government. In regard to her young children, she said that her children were born in Australia and have never been to Vietnam. Therefore, they do not have Vietnamese birth certificates.
The applicant said that in Vietnam, birth certificates are the main source of identification and because she and her husband are political activists, her children will be denied the opportunity to apply for their birth certificates. That means that they will become stateless and have no rights because they will not have access to any education, healthcare services or be eligible for registration in the household registration book.
The applicant went on to claim that her childrens’ main language is English, and they do not fluently speak Vietnamese. Because of this, her children will face significant hardship in adapting to the Vietnamese culture and language if she and her children returned to Vietnam. She also claimed that her children also risked becoming orphans because she and her husband face being arrested because of their involvement with the Viet Tan.[40]
[40]Applicant’s statutory declaration dated 10 January 2023, pages 3 – 4, paragraphs 23 – 26.
In conclusion, the applicant affirmed that it was her belief that she has been blacklisted by the Vietnamese government because she is a member of the Viet Tan, and if she returned to Vietnam, she will be arrested and faces a significant term of imprisonment. If she survived her prison term and was released from gaol, she will be forced to live in her previous residence and be constantly monitored by the Vietnamese authorities. If she wanted to relocate, she would need permission from the local authorities, but believes that she will not be allowed to relocate for her own protection. She would be subjected to constant harassment from the local authorities to ensure that she remains intimidated so as to silence her political activities.[41] She also claimed that she will not be protected in Vietnam by the government, because it would be the Vietnamese government who would be inflicting the persecution upon her.[42]
[41]Applicant’s statutory declaration dated 10 January 2023, page 5, paragraphs 36 – 37.
[42]Applicant’s statutory declaration dated 10 January 2023, page 6, paragraphs 38 – 40.
During her oral testimony, the applicant’s oral evidence conformed with the evidence she provided within her statutory declaration. The Tribunal considered that her evidence was delivered in a forthright, frank and credible manner and when weighed against the testimony of her husband and [Mr B], along with the country information provided within the DFAT report, the Tribunal finds her new claims to be credible.
Evidence from the applicant’s husband
The Tribunal heard evidence from [Mr A]. He is the applicant’s husband.[43] He confirmed that they met in Melbourne and were involved in some Viet Tan activities together, although he played a greater activist role than she did.
[43]Certificate of marriage exhibited by the applicant at page 4 of her photo evidence booklet filed with the Tribunal on 10 January 2023 showing that the applicant married her husband [in] June 2018.
He confirmed the applicant’s evidence that they both moved [interstate] in early 2017 where he continued his association with Viet Tan, and eventually he was elected the organisation’s [position 1] in June 2022. A certified and translated copy of certificate of appointment was produced to the Tribunal to confirm his appointment.[44]
[44]Certificate of appointment exhibited by the applicant at page 3 of her photo evidence booklet filed with the Tribunal on 10 January 2023 showing that the applicant married her husband [in] June 2018.
The Tribunal accepts and accordingly finds that he is the [position 1] of the [Region 1 group] of the Viet Tan organisation.
[Mr A] is acutely aware that because he has taken on the responsibility as [position 1] of the [Region 1 group] of Viet Tan, he has not only raised his own political profile, but has also raised the applicant’s profile.
Evidence from [Mr B]
[Mr B] is a member of the Australia committee for the Viet Tan organisation. He confirmed that he has been associated with Viet Tan for the past 20 years. He knows both the applicant and her husband. He went on to provide testimony that in June 2022, the applicant’s husband was elected as the [position 1] of the [Region 1 group] of Viet Tan. He said that the [position] is also known as a leader. That appointment is for two years.
The Tribunal accepts and finds that [Mr B]’s evidence supports the applicant’s evidence so far as her association with the Viet Tan. His evidence corroborates the new claims she made with respect to the involvement of herself and her husband with the Viet Tan organisation. The Tribunal also accepts that because of [Mr B]’s long and established association with Viet Tan, he is well placed to say that because of the applicant’s husband is the [position 1] of the [Region 1 group] of Viet Tan, and the applicant herself has an active role within the organisation whereby she has expressed strong anti-Vietnamese government sentiment and encouraged dissent amongst its citizens, she would be at risk of persecution should she return to Vietnam.
Future risk of harm to the applicant
The Tribunal accepts and notes that at the time of the Tribunal’s review hearing, the applicant had acquired a far greater body of evidence which differed from her original claims that she should be protected which she presented to support her original application. The Tribunal acknowledges that when the delegate made the original assessment of the applicant’s application, the benefit of that substantial body of probative evidence for the new claims was not available to the delegate.
Invariably, and as was in this case, considerable time can pass between when the delegate made the original assessment, and the matter being determined by the Tribunal. Consequently, it is incumbent upon the Tribunal to hear and decide the applicant’s claims by way of a fresh hearing on the merits of her application as at the date of the review hearing. In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the delegate relied upon to reach the original decision.[45]
In the absence of evidence to the contrary, the Tribunal accepts that in 2015, the applicant went to Melbourne where she met her husband. It is also accepted that she had some limited involvement with Viet Tan in Melbourne before relocating with her husband [interstate]. The Tribunal accepts that it was when she and her husband moved [interstate] that her involvement with Viet Tan became more pronounced to a point where she is a full member of the Viet Tan and [worked on] the Viet Tan’s [Region 1 group] social media.
When assessing the country information available to the Tribunal and applying that information to the applicant’s case, the Tribunal recognises that political opposition parties are illegal within Vietnam and to avoid harassment, arrest and detention from the communist Vietnamese government, those opposition parties are usually based overseas, including in Australia. The Viet Tan organisation advocates for democracy in Vietnam. In 2016, the Vietnamese government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism. Individuals, including Australian citizens with links to Viet Tan, have been sentenced to lengthy prison sentences for engaging in terrorist activities.[46]
[45]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.
[46]The DFAT Country Information Report, Vietnam, 13 December 2019, pages 25 – 27, paragraphs 3.46 to 3.56; Report of a Home Office fact-finding mission to Vietnam conducted between 23 February 2019 and 1st March 2019, United Kingdom Home Office, 9 September 2019, page 9.
DISCUSSION
When carefully considering the facts, circumstances and the evidence of the applicant’s case, the Tribunal was afforded the opportunity to monitor her responses to the Tribunal’s analysis of the evidence, and to gauge the genuineness, or the credit of the responses she provided during the review hearing.
The Tribunal found her evidence to be spontaneous and consistent with her statutory declaration. She delivered her oral testimony in a forthright and credible manner, and her evidence was supported by the evidence of her husband and [Mr B]. Their evidence corroborated and validated her new claims.
When assessing her evidence that she has a political profile because of her substantial involvement with the [Region 1 group] of the Viet Tan, and weighing that evidence against the available country information in respect to her fears of persecution should he return to Vietnam, the Tribunal finds that the applicant’s evidence was consistent with that country information, and it shows that her fears of persecution in Vietnam are well-founded; and the Tribunal finds she faces a real chance of serious harm by reason of her actual political opinion should she be required to return to Vietnam now or in the reasonably foreseeable future.
The Tribunal is satisfied that if the applicant returns to Vietnam, there is a real chance that because of her association and involvement with the Viet Tan, she will be arrested by the Vietnamese authorities and persecuted. The Tribunal accepts that for the indispensable reasons of the applicant’s involvement with Viet Tan, there will be a real chance that she will face serious harm if she returns to Vietnam, now or in the reasonably foreseeable future.
The Tribunal also accepts that the Vietnamese government are perpetrators of the harm feared by the applicant and that effective protection measures are not available to her and that the real chance of serious harm extends throughout Vietnam.
For those reasons given above, the Tribunal finds that the applicant meets the definition of a refugee as per the criteria set out in the Act.[47]
[47]Migration Act 1958 (Cth), s 36(2)(a).
Conclusion
In conclusion, the Tribunal accepts and finds that there are substantial grounds for finding that, as a necessary and foreseeable consequence of the applicant’s removal to Vietnam, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm by being arrested, imprisoned and tortured.
The Tribunal further finds that the applicant meets the definition of a refugee and the criteria set out in the Act in that she is a person in respect to whom Australia has protection obligations as defined in the Act.[48]
[48]Migration Act 1958 (Cth), s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958 (Cth).
Wayne Pennell
Senior Member
Attachment - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 313

18 January 2023

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