1819706 (Refugee)

[2024] AATA 4257

1819706 (Refugee) [2024] AATA 4257 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Albert Dylan Nguyen (MARN: 1688742)

CASE NUMBER:  1819706

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Gregory Hanson

DATE:28 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2024 at 5:23pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – family background – father a former South Vietnamese solder, re-educated and subjected to close supervision – house confiscated and forced relocation, and household registration and citizen’s rights denied – detained, beaten and subject to forced labour and discrimination in study and work – sister and brother accepted as refugees in another country after departing unlawfully, then settled in Australia – chronic physical health condition and treatment – capacity to subsist – country information – general constitutional rights limited in practice – low-level discrimination remaining for relatives of people involved in former government and army – access to and quality of healthcare – low-level discrimination in employment not serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (b), (4)(b), (c), (5)(a), (d)-(f), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Acts Interpretation Act 1901 (Cth), s 23(b)

CASES
AGA16 v MIBP [2018] FCA 628
CSO15 v MIBP (2018) 260 FCR 134
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
MZYPB v MIAC [2012] FMCA 226
SZBBP v Minister for Immigration [2005] FMCA 5
SZBQJ v MIAC [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
SZTEQ v MIBP [2015] FCAFC 39

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of Minister for Immigration and Border Protection (the delegate) on 14 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of the Socialist Republic of Viet Nam (Vietnam), applied for the visa on 26 May 2017. The delegate refused to grant the visa on the basis that, firstly, they were not satisfied the applicant met the refugee criteria in s 36(2)(a) of the Act because there was not a real chance the applicant would be persecuted in Vietnam for one or more of the reasons mentioned in s 5J(1)(a). Secondly, for the complementary protection criteria in s 36(2)(aa), the delegate found they were not satisfied that the applicant faced a real risk of significant harm in Vietnam.

3. On 6 July 2018, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision.

4. The applicant was represented in relation to the review by legal practitioner Mr Albert Dylan Nguyen of ADN Lawyers (Mr Nguyen).

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. 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.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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.

    CLAIMS AND EVIDENCE

    Before the delegate

11. The information provided by the applicant in support of her claims to engage Australia’s protection obligations was limited to that contained in the protection visa application form lodged with the Department on 26 May 2017. Relevantly, in that form it is recorded the applicant claimed as follows, among other things:

    a.She left Vietnam because of her anti-communist family background, anti-communist political opinion, and anti-communist activities. She was deprived of opportunities to study, work, advance her career, and live a normal life. She was forced to undertake unpaid or underpaid labour. She was detained and beaten by Vietnamese Communist Police (VCP). She was forced to work very hard but still found it very hard to survive and to support her family. She lived and worked a slave.

    b.If she were to return to Vietnam, she would be imprisoned, beaten by the VCP; or at the least, forced to work as a slave. Her family would be in serious difficulty; her husband would be in trouble with VCP; he would never be able to find a decent job and would be seriously criticised. Her son would also not have a chance to find a decent lob. He may be forced to live and work like a slave like she did. Her son would be discriminated at work and not able to live his life as a human being. All members in her family would be treated badly and would never be able to have normal lives.

    c.She was discriminated and deprived of opportunities to study and work in Vietnam. She was forced to do unpaid labour and was detained and beaten by the VCP.

    d.If she were to return to Vietnam, she would be imprisoned and her husband, her daughter and her son would be in serious difficulties. Her daughter may be discriminated at work, not be able to advance her career and live her life as a normal human being. Her husband and son would never be able to find a decent job and would be seriously criticised. All her family would be discriminated, maltreated and never able to live as normal human beings.

12. In the applicant’s protection visa application form the applicant foreshadowed that the following documents would be provided on a later date in support of her claims:

    a.Documents in relation to her anti-communist family background;

    b.Her statement in Vietnamese accompanied by an English translation; and

    c.Other supporting documents.

13. There is no record of the above-referred further documents having been received by the Department. The delegate refused the visa application without providing the applicant with an opportunity to attend a protection visa interview or otherwise inviting further information from her.

    Before the Tribunal

14. A copy of the protection visa decision record in respect of the decision of the delegate to refuse their protection visa application was provided to the Tribunal by the applicant with her review application on 6 July 2018.

15. By online submission on 20 February 2024, the following further material was provided to the Tribunal in support of the applicant’s claims:

    a.A statement dated 19 February 2024 from the applicant, in the Vietnamese language, and an unofficial English translation of that statement prepared by Mr Nguyen (Applicant Statement).

    b.A statement dated 19 February 2024 from the applicant’s sister, [Ms A], in the Vietnamese language, and an unofficial English translation of that statement prepared by Mr Nguyen (Sister Statement).

    c.A copy of a document purporting to be correspondence dated [July] 1992 from the Vietnamese Refugee Vetting Section of the Department of Immigration, [Country 1], addressed to a [Country 1] law firm, in respect of proposed interviews to be undertaken by the Department of Immigration for the purposes of determining the refugee status of the following individuals:

    i.[Mr B]; and

    ii.[Ms A].

    d.A copy of a document purporting to be a ‘Notice of Conditions of Stay to Vietnamese Refugee’ dated [June] 1993 and issued in respect of the following individual by the Department of Immigration, [Country 1]:

    i.[Mr B], date of birth [Date].

    e.Copies of the above notice dated [June] 1993 in the Chinese and Vietnamese languages.

    f.A copy of a document dated [June] 1993 purporting to have been created by the Department of Immigration, [Country 1], and issued in respect of [Mr B] (date of birth [Date]), relevantly advising as follows:

    i.[Mr B] had been recognised as a refugee.

    ii.“His father served for the army f the former French and South regime from [Year]-1975, up to the post as a [rank]. After 1975, the family experienced various discrimination because of the father's military background. His father was re-educated for 5 years and subjected to close supervision for 5 years after release. In 1975 the family's house was confiscated and they were denied of household registration and citizen's rights. The children could not continue their studies and had to perform forced labour. In 1979 the family was relocated to a new economic zone where they suffered poor living conditions. [Mr B]'s brother was sent to a re-education camp without a trial in 03/86 and he later succeeded to escape. [Ms A] could not secure a stable job as she has no household registration.“

    g.Copies of three documents in the Vietnamese language with English translations prepared by a NAATI accredited translator, purporting to be documents issued by the Republic of Vietnam Armed Forces in respect of [Mr C], date of birth [Date], [Rank], in 1963, 1969 and 1971 respectively. These documents relate to military training qualifications obtained and a military vehicle drivers license.  

    h.Various photographs depicting an individual in military uniform.

16. In the Applicant Statement dated 19 February 2024, the applicant claimed as follows:

    1. My name is [the applicant], born [Date], living at [Address 1] [VIC]. I submit this statement to support my application for a protection visa.

    2. Before April 1975, my father served in the armed forces of the Republic of Vietnam (VNCH), his military service number was [Number]. My father served at [a Base] in [Location], Nha Trang. He also worked for the army [section]. Attached herewith are documents and photos relating to my father’s service in the VNCH Army.

    3. After April 1975, my father was arrested and imprisoned by the Vietnamese Communist (VC) until 1979, the VC called those prisons “re-education camps”. We were forced to leave our home in Nha Trang, Khanh Hoa, and moved to live with my grandfather in Hue.

    4. In 1979, we were forced to move to a desolately and remotely mountainous region  of Dak Lak province to live. The VC called it a “new economic zone”. As the living conditions at the area was so difficult, one of my sisters, [Ms D] had serious mental problems, and one of my brothers, [Mr E], had severe malaria; my father took us to escape the remote area and returned to my home village at [Village], [District 1], Thua Thien-Hue, in 1982.

    5. I had to cease studying at Grade 9, in [Year] because the financial hardship of my family. After leaving school, I stayed home to assist my mother for her home duties and farming works. I was sent to do domestic service to other families in my village. I had to work hard and harder, slept not enough and often being hungry. In [Year], I was so weak, my weight was only 35 Kg, so my mother took me home.

    6. In [Year], my elder brother, [Mr B] and my older sister, [Ms A], both escaped from Vietnam by boat and arrived in [Country 1]. They had undergone screening interviews by the then [Country] government and been given refugee status. They were sent to a refugee camp in [Country 1] and then being accepted to settle in Australia in 1993 (for my sister, [Ms A]) and in 1994 (for my brother, [Mr B]).

    7. In [Year], I went to work as domestic assistant and trainee at a [shop] of [Address 2], Hue. I met [Mr F], we married then and had a daughter named [Ms G]. My family living conditions were still in difficulties as my husband’s family background was like mine, we are of the anti-communist families. We were living with my extended family at [Address 3], Hue.

    8. In [Year], I gave birth to my son, [Mr H]. I opened a small [shop], but I had to cease working because of my health problems.

    9. In [Year], as my friend introduced, I worked as an employee at a [factory], my monthly salary was four (4) million VND (about $250 AUD). My husband worked as a construction handy assistant in building groups. We were still in financial hardship.

    10. In 2016, with the financial assistance of my sister, [Ms A], I had a tourist visa to Australia. I applied for protection visa. I request the Tribunal to give me an opportunity to be interviewed so that I can provide in detail the difficulties of mine and my family because of my family anti-communist background. I declare my statement is true in every particular and being in gratitude for your consideration.

17. In the Sister Statement dated 19 February 2024, [Ms A] claims as follows:

    1. My name is [Ms A] (I was also known as [Ms A – Alias]), living at [Address 1], Victoria. I submit this statement to support the application for a protection visa of my younger sister, [the applicant].

    2. Before [Year], because my anti-communist family background, my father was sent to prisons, so called “re-education camps” until [Year]. We were forced to leave our home at Nha Trang, Khanh Hoa. We moved to live at the home of my grandfather at [Village], [District 1], Thua Thien-Hue.

    3. In [Year], our family was sent to a remotely mountainous area at [District 2], Dak Lak province, so called “new economic zone”. The living conditions at there were so difficult, my father escaped and took us to Hue in [Year].

    4. I had to cease studying after 1975, when I was in Grade [Number], as my family was in financial hardship. I stayed home to assist my mother for home duties and farming. I was sent to take care buffalo for other families in our village.

    5. In [Year], my father sent me to his friend’s family to work as domestic assistant and trainee in a [shop]. I lived “illegally” there without household registration. In [Year], I was arrested by VCP police as asked to leave Sai-gon, returned to Hue.

    6. In [Year], I participated in a public event to welcome Buddha statue in a Buddhist temple. I was arrested by VCP police and sent to do unpaid works.

    7. In [Year], my elder brother, [Mr B], and I both escaped from Vietnam for [Country 1]. We were going through screening interviews by [Country 1] government and were given refugee status in [Year]. Attached herewith are the documents of [Country 1] immigration department in relation to the case of my brother and me.

    8. My brother and I were sent to another refugee camp in [Country 2], and then we were accepted to settle in Australia in [Year] for me, and my brother was given the same opportunity in [Year]. I lived in Melbourne since then until now.

    9. Because of anti-communist family background, all members in my family were maltreated for years by VCP. I respectfully request the Tribunal for an interview to have an opportunity to provide in detail our difficulties in communist regime, and to support my younger sister, [the applicant] for her application for a protection visa. I am in deeply gratitude for your consideration.

18. By email correspondence dated 5 March 2024, the Tribunal wrote to the applicant to advise that it was unable to make a favourable decision on material before it and enclosed an invitation to appear before the Tribunal at a hearing on 15 April 2024. That correspondence requested a ‘Response to Hearing Invitation form’ be completed and returned to the Tribunal.

19. On 12 March 2024, Mr Nguyen lodged with the Tribunal a completed Response to Hearing Invitation form signed by him on behalf of the applicant. In that form, Mr Nguyen requested the Tribunal take evidence at the hearing from [Ms A], the applicant’s sister who is also known as [Ms A – Alias]. Mr Nguyen advised that the applicant intended to rely on his written submissions in addition to the Applicant Statement and the Sister Statement.

20. On or around 14 April 2024, Mr Nguyen provided written submissions dated 14 April 2024 to the Tribunal. Those submissions contended, among other things:

    a.for reason of the applicant’s family background, she has suffered the long term and systematic discrimination and maltreatment in Vietnam; and

    b.the applicant has well-founded fear of unfair and unjust treatment, including physical abuse, and chronic grave discrimination in employment, health, and other ways which over time would amount to persecution or significant harm.

21. On 15 April 2024, the applicant appeared before the Tribunal with the assistance of Mr Nguyen and an interpreter in the Vietnamese and English languages, to give evidence and present arguments relating to the issues arising in relation to the decisions under review. The Tribunal also took oral evidence from the applicant’s sister, [Ms A], as her witness.

22. Before the Tribunal the applicant gave evidence that was generally consistent with that contained in the Applicant Statement. However, in relation to the discrimination in employment that the applicant suffered in Vietnam, she added as follows:

    a.When she applied for jobs in Vietnam she was required to submit a curriculum vitae (CV) certified by the local authorities. That document required her to declare 3 generations of her family and their members, including her parents and her children. That document was required to include her father’s name, date of birth and occupation, so she had to declare on her CV that her father’s previous service in Armed Forces of the Republic of Vietnam (VNCH).

    b.Due to her CV evidencing her family background she found it very difficult to access employment. For this reason, after marrying her husband and moving to Hue city in [Year] she was forced to work as a street vendor as she was not able to find other employment.

    c.In around [Year] she secured a job with the [company] and she remained with that employer until she travelled to Australia in 2017. Due to her family profile evidenced on her CV her employer discriminatorily withheld various benefits that she was entitled to, including as follows:

    i.Despite her being eligible for a full-time permanent position with that employer due to her having worked as a casual for more than 12 months, she was denied this.

    ii.She was required to work only night shifts, while other employees shared the night and day shifts.

    d.The applicant added that due to her only being a casual employee (and not a full-time permanent employee) she was ineligible for medical insurance and this meant she was had to pay 100% of her medical expenses herself.

1. Further, in relation to her physical health, her evidence included as follows:

   a.Because her family were very poor after the end of the war in 1975, soon after they were exiled to live in the new economic zone, her family sent her to be a domestic servant for another family. She was physically beaten by that other family and she suffered a serious spinal injury. Since sustaining that injury her health has been very poor.

   b.In around [Year] or [Year] her physical health deteriorated further. She lost a lot of weight and became very thin and weak. She also suffered chronic pain in her back. In around [Year] she commenced employment with a [company], and her health continued to decline as she was made to work very hard in poor conditions and undertake only night shifts.

   c.She does not know the medical term for the condition that the doctors have diagnosed her as suffering, but she believes it relates to an infection in her vertebrae caused by the injuries she suffered when she was beaten as a child when she worked as a domestic servant. In Australia she has been prescribed a pharmaceutical drug that she buys from the chemist and then takes this product to her doctor they inject it into her arm.

   d.She could not access the medical care she needed in Vietnam due to her employment status. She did not have medical insurance so her medical expenses were 100% out-of-pocket. For this reason, she was reliant on pain killers to manage her condition and continue working. In around 2006 or 2007 her sister ([Ms A]) and their brother who also lived in Australia, visited her in Vietnam and they both became very worried about her condition.

   e.When a person seeks to access medical care at a place like a hospital, the person needs to show their certified CV, and in doing to the medical care provider can see if they are from an adverse family.

2. [Ms A] gave evidence at the hearing that was generally consistent with that contained in her Sister Statement, but also added the following:

   a.Sometime in the 1990s the applicant had conflict with the local authorities and the applicant was detained and the authorities tried to charge her with an offence.

   b.Since the 1990s the harm suffered by the applicant included discrimination in accessing employment and medical treatment due to her family profile evidenced in her CV. After some time, the applicant secured a job with a [company] but due to her family profile her employer discriminatorily withheld various benefits that she was entitled to, including being denied a permanent position and being forced to work only night shifts from 2:00AM to 2:00PM.

   c.Because of the applicant’s adverse family profile, the applicant could not access fair medical treatment or the same treatment as other people. Rather than treating the applicant’s medical conditions properly, the medical services just gave her painkillers and sent her home.

   d.In around 2001, she travelled to Vietnam and while there she witnessed the applicant’s poor health. The applicant’s limbs were very thin, and she weighed around 38kg at that time. Despite this, the applicant was forced to work to work long night shifts in very poor conditions. She ([Ms A]) and their elder brother feared that the applicant may die if that continued, and they discussed how to save her.

   e.It was for these reasons that she ([Ms A]) and their elder brother sought to bring the applicant to Australia.

   Country information

   Demography

3. DFAT advises that Vietnam’s population is about 100 million people, and that it has a young, largely rural population with about 7 per cent of people older than 65 years and 38 per cent of people living in urban areas.[1] The two largest cities are Ho Chi Minh City (HCMC) with 8.8 million people, and the capital Hanoi with 4.8 million people.[2] The Vietnamese language, based on the Hanoi dialect, is widely spoken throughout the country.[3]

   [1] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information report – Vietnam, 11 January 2022 (2022 DFAT Report), at [2.4], available at: Ibid.

   [3] Ibid.

According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty.[4] In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups.[5] The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic, and this is reflected in a growing middle class and increasing urbanisation.[6]

Political opinion

[4] 2022 DFAT Report, at [2.5].

[5] Ibid.

[6] Ibid.

Vietnam is a one-party communist state with Communist Party of Vietnam (CPV) members holding all senior government and military positions.[7] The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power. Elections are held for the National Assembly, most recently in May 2021.[8] Ninety-two per cent of candidates in the National Assembly are members of the CPV. DFAT assesses that real political power is held in CPV structures rather than the National Assembly.[9]

[7] DFAT 2022 Report, at [2.28].

[8] DFAT 2022 Report, at [2.29].

[9] Ibid.

DFAT reports that that opposition parties are effectively illegal, and that threats to CPV legitimacy are seen as threats to the state and are not tolerated.[10] Country information confirms that the right to assembly and demonstrate in Vietnam is constitutionally protected[11] but in practice that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People's Government' (article 109), 'making, storing or spreading information … opposing the State' (article 117) and 'abusing democratic freedoms to infringe upon the interests of the state' (article 331).[12] DFAT assesses that these laws effectively outlaw protests that the Government finds sensitive and official approval is required to protest, which is routinely denied for sensitive topics, and protests that are allowed are subject to close police monitoring.[13]

[10] DFAT 2022 Report, at [3.49].

[11] DFAT 2022 Report, at [3.52]; Journal of Contemporary Asia, The State in a Capitalist Society: Protests and State Reactions in Vietnam and Indonesia', Wischermann, Jorg; Phuong Dang, Thi Viet & Sirait, George Martin, 06 April 2022, p. 14, 20220928151352.

[12] DFAT 2022 Report, at [3.52].

[13] Ibid.

DFAT reports that topics deemed to be sensitive can change or depend on local government priorities at the time, and that people with knowledge of the issue told DFAT that some 'red lines' and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day.[14] DFAT states that human rights, environmental or land-use protests and calls for democracy are sensitive issues, and an NGO's links to foreign governments may also intensify Government monitoring.[15] DFAT reports that COVID-19 'misinformation' is particularly sensitive and can lead to arrests, as can online organising of in-person protests, and particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.[16] DFAT assesses that other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.[17]

[14] DFAT 2022 Report, at [3.53].

[15] DFAT 2022 Report, at [3.54].

[16] Ibid.

[17] Ibid.

DFAT records that some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport, and assess that the former is considered much more sensitive by the Government and activists in different contexts have faced arrest.[18]

[18] DFAT 2022 Report, at [3.50].

DFAT records that street protests occur but much protest has now moved to online platforms.[19] Further, many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development), with the most prominent recent example being the widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and protests against laws that required social media companies like Google and Facebook to store user data domestically.[20] In 2022, it was reported that the government mobilised several battalions of mobile police across Vietnam to crack down on illegal demonstrations.[21]

[19] DFAT 2022 Report, at [3.51].

[20] Ibid.

[21] Vietnam Human Rights Network, Report on Human Rights in Vietnam 2022-2023, 15 October 2023, p. 36, 20231122095434.

Credible sources indicate that critics of the government have been harassed, intimidated, restricted in their movements, and imprisoned with unfair trials.[22] Further, political detainees are often held for months without legal counsel[23] and the authorities often use prolonged sentences to tactically silence many of the prominent activists.[24] The Vietnamese government has used tactics such as convicting activists with false tax evasion charges.[25] It is reported that between January 2019 and August 2023, 139 people have been sentenced to prison for criticising the government or joining pro-democracy groups, and as of October 2023, 166 political prisoners are being held in Vietnam.[26]

[22] Human Rights Watch, Human Rights Watch World Report 2023, 12 January 2023, p. 693, 20230112144355; DFAT 2022 Report, at [3.55]-[3.57]; Freedom House, Freedom in the World 2023 -Vietnam, 13 March 2023, D4, 20230417082342.

[23] Human Rights Watch, Human Rights Watch World Report 2023, 12 January 2023, p. 693, 20230112144355.

[24] Amnesty International, Amnesty International Report 2022/23: The state of the world’s human rights, 27 March 2023, p. 402, 20230328142801.

[25] Human Rights Watch, Vietnam: Rights Reforms Urgently Needed, 3 October 2023, 20231109141500; Freedom House, Freedom in the World 2023 - Vietnam, 13 March 2023, D1, E2, 20230417082342.

[26] Human Rights Watch, Submission to the Universal Periodic Review of Vietnam, 3 October 2023,

DFAT reports that activists might have difficulty obtaining legal representation and that lawyers who represent activist clients can face restrictions on their practice.[27] And further, activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement.[28] DFAT states that activists report physical and electronic surveillance, and women are less likely to experience violence but may experience sexual harassment online.[29] DFAT states that its sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.[30]

[27] DFAT 2022 Report, at [3.55].

[28] DFAT 2022 Report, at [3.56].

[29] Ibid.

[30] Ibid.

The United States Department of State (USDOS) advises that informal groups can gather, as long as the meeting is not deemed political or a threat to the government.[31]

[31] United States Department of State, 2023 Country Reports on Human Rights Practices: Vietnam, at p29.

DFAT advice concludes that it is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when, but: those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting; and those who organise protests are more likely to face discrimination; but the possibility of a low-level activist being arrested cannot be discounted.[32]

Family profiles associated with the Army of the Republic of Vietnam / South Vietnamese Army

[32] DFAT 2022 Report, at [3.57].

The Second Indochina War (1954-75) ended in 1975, when the Viet Cong and regular People’s Army of Vietnam (PAVN) forces from the North, with logistical support from China and the Soviet Union, defeated the South Vietnamese Army, or Army of the Republic of Vietnam (ARVN), which sought to maintain South Vietnamese independence with the support of the United States military.[33] The United States and North Vietnam reached a peace agreement in Paris in 1973.[34] The North did not abide by the terms of the 1973 Paris Agreement, which called for free elections in the South and peaceful reunification. Two years after the last US forces withdrew in 1973, Saigon, the capital of South Vietnam, fell to the communists, and on 30 April 1975, the South Vietnamese army surrendered.[35]

[33] ‘Country Profile: Vietnam’, The Library of Congress, Federal Research Division, December 2005, CIS29509, p.2.

[34] ‘Vietnam – Country Information – History’, UK Foreign and Commonwealth Office, 2 March 2012, CX0D38E8E20963.

[35] ‘Country Profile: Vietnam’, The Library of Congress, Federal Research Division, December 2005, CIS29509, p.2.

Academic commentators have reported that after the war ARVN soldiers, especially officers, were subjected by the victorious communists to even harsher penalties than civilians, including years of forced labour and indoctrination in ‘re-education camps’.[36] And thousands died from sickness and starvation; those who survived and didn’t manage to escape to the west were treated with contempt and discrimination, which were even extended to their children and grandchildren.[37]

[36] ‘From the bookshelf: the defeated South Vietnamese army’, Edwards, P, The Strategist, Australian Strategic Policy Institute, 18 August 2016, CIS38A80123518.

[37] Ibid.

In August 1995, Human Rights Watch reported that ‘[i]n 1987 and 1988, thousands of persons detained without trial for “re-education” were released. At present, virtually all such “re-education” detainees who were held continuously since the 1975-1976 period without trial have been freed’.[38] An October 1998 Amnesty International report indicates that many re-education camps in Vietnam were closed in the early 1990s.[39]

[38] ‘Vietnam: Human Rights in a Season of Transition: Law and Dissent in the Socialist Republic of Vietnam’, Human Rights Watch, August 1995, CIS7517, p.2.

[39] ‘Socialist Republic of Viet Nam: A step forward for human rights?’, Amnesty International, ASA 41/10/98, December 1998, CIS3A79C58366, p.1.

Subsequently, in the USDOS report on human rights practices in Vietnam in 2008, it is recorded that ‘[s]ome persons formerly interned in re-education camps on the basis of association with the pre 1975 government continued to report varying levels of official and social discrimination as they and their families sought access to housing, education, and employment, although the overall incidence of such discrimination declined substantially as previously enforced prohibitions eased and the percentage of war veterans in the work force decreased’.[40]

[40] ‘Country Reports on Human Rights Practices 2008 – Vietnam’, US Department of State, 25 February 2009, Section 5.

In December 2015 Bloomberg News published an article advising that whole families, typically extending to three generations, were deemed as having “bad family backgrounds” because of their ties to the fallen government, and that system of background checks, which still existed prevented many from getting jobs and entering colleges.[41]

[41] ‘In Vietnam, wartime pasts haunt young workers’ economic futures’, Bloomberg News, 25 December 2015, CXBD6A0DE19223.

The Vietnam Human Rights Network’s 2019-20 Annual Report details ongoing stigmatisation and discrimination targeting supporters, and family members of supporters, of the former Republic of Vietnam. According to that report, although the war ended more than four decades ago, “Vietnam is still pursuing a policy of discrimination and stigmatization against supporters of the previous government, as if the war were still going on. And that, although the concentration camps have closed, the profiling policy still creates great educational, political, and economic inequality, dividing people who supported the previous government and those associated with the victors.[42]

[42] Vietnam Human Rights Network, Report on Human Rights in Vietnam 2019-2020, 14 May 2020, pp.66-67, 20200521115120

DFAT reports that its in-country sources advised it that some subtle discrimination may exist for people with relatives involved in the Vietnam War in support of South Vietnam, for example in educational opportunities, but others told DFAT this was previously the case but is no longer true.[43] DFAT assesses that alleged discrimination may relate to an inability to join the CPV where party members might have access to opportunities through their connections that others do not have, while experiences in small communities might be different where unwritten laws and customs may cause some low-level discrimination.[44] DFAT advises that the yellow and red flag of the former country of South Vietnam is sensitive and cannot be displayed publicly.[45]

[43] 2022 DFAT Report, at [3.108].

[44] Ibid.

[45] Ibid.

DFAT assess that, on the balance of available evidence, discrimination against the relatives of people who were involved in the Vietnam War, if it is exists at all, is low level.[46] And while DFAT does not rule out the possibility of such discrimination, it is not aware of a strong pattern of such behaviour.[47]

Health care

[46] 2022 DFAT Report, at [3.109].

[47] Ibid.

DFAT reports that, according to United Nations Development Programme data, life expectancy is 75.4 years (men 71.3 years, women 79.5 years) and health expenditure is 5.5 per cent of GDP (for context: combined men and women's life expectancy in Australia is 83.4 years and health spending is 9.2 per cent of GDP in Australia).[48] The government introduced a formal social health insurance scheme in 1993 to improve access to healthcare services and to protect the population against the financial burden of illness.[49]

[48] 2022 DFAT Report, at [2.13].

[49] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 33, 20230911072814.

The current healthcare system in Vietnam is a hybrid public-private system, with the public system playing an essential role in ensuring that preventive and curative care is provided to the entire population.[50] The European Union Agency for Asylum (EUAA) reports that public health and initiatives are delivered through the national network of hospitals, clinics, and health centres.[51] The healthcare service and management system have four administrative levels: commune; district; provincial; and central.[52] The district and commune levels provide primary healthcare services.[53] The above is consistent with DFAT advice that hospitals are the primary place of care (rather than, for example, a general practitioner's practice) for many Vietnamese.[54] And that hospitals are organised at the 'central' (national), provincial and district levels, along with private hospitals that are found in urban areas, and that healthcare in rural communities is provided at commune-level health centres.[55] DFAT reports that these centres provide basic preventative care, diagnoses and treatments, and refer people on to hospitals, and that quality varies from place to place, and some centres are poorly funded and ill-equipped, and distance for people living in remote areas can be a barrier to access.[56] Health centres are usually staffed by nurses and midwives, while some may have doctors.[57]

[50] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 19, 20230911072814.

[51] Ibid.

[52] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 19-20, 20230911072814.

[53] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 20, 20230911072814.

[54] 2022 DFAT Report, at [2.14].

[55] Ibid.

[56] Ibid.

[57] Ibid.

1. The Vietnam Ministry of Health (MOH) reported in 2020 that approximately 91% of the population had health insurance, and that social health insurance is managed by the Vietnam Social Insurance, a single fund that is directly under the Government and 63 social agencies in provinces.[58] EUAA reports that social health insurance started as a compulsory scheme first covering state officials and civil servants, state enterprise employees, medium and large non- state enterprise employees, and those receiving social security allowance.[59] The scheme was expanded between 1993 and 2013 to include children under 6 years of age, “the poor and near-poor, ethnic minority households living in remote mountainous areas and residents of communes with very difficult socio-economic circumstances”. [60] A voluntary scheme was started for those not eligible for the compulsory scheme. [61] Employers are required to contribute to the social health insurance scheme, being 4.5% of the employee’s monthly salary, while employees are required to contribute 1.5% of their salary.[62] In 2015 approximately 75 million people were covered under the social health insurance scheme with approximately 40% of the population categorised as vulnerable and poor (and have their premium payments covered by the government) and approximately 30% were partially subsidised.[63]

   [58] Ibid.

   [59] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 33, 20230911072814.

   [60] Ibid.

   [61] Ibid.

   [62] Ibid.

   [63] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 34, 20230911072814.

2. EUAA assess that access to healthcare remains a significant issue, especially in rural areas where many people do not have access to basic medical care.[64] And further, Vietnam relies heavily on out-of-pocket payments for healthcare, which is a burden for low-income households, and health facilities charge additional costs to patients which creates barriers to low-income households.[65] However, DFAT reports that economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese.[66] DFAT also reports that the vast majority of the population is enrolled in the social health insurance scheme, and that the poor, ethnic minorities and elderly are fully subsidised, while others pay premiums.[67] DFAT states that healthcare is not free; a co-payment is required from patients, potentially along with bribes due to corruption.[68] And that co-payment is higher in central and provincial-level hospitals, but the level of care there is also higher, and that this may encourage those who can afford it to bypass lower-level hospitals to receive treatment.[69]

   [64] Ibid.

   [65] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 38, 20230911072814.

   [66] Ibid.

   [67] Ibid.

   [68] Ibid.

   [69] Ibid.

3. EUAA reports that despite recent improvements, disparities in health between regions, ethnic groups, and income levels persist.[70] The MOH summarises challenges facing healthcare resources in Vietnam as follows: “the distribution of health workers is still not reasonable among regions and levels, and the quality of human resources is still weak at the grassroots level, and the medical ethics of a part of staff is not good. Human resource training has not kept up with the requirements of the renovation of health systems and activities and has not approached international standards. Quality control is not strict. License to practice is still confusing, not in line with international practices.”[71] EUAA reports that despite the availability of social health insurance, out-of-pocket expenditure and informal payments to service providers continue to be integral to healthcare in Vietnam.[72]

   [70] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 28, 20230911072814.

   [71] Ibid.

   [72] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 39, 20230911072814.

4. The World Health Organisation (WHO) and the MOH report barriers to equity in health insurance and the rates of service access and usage and noted the following challenges:

   ·     the percentage of the population that remains without health insurance and thus makes direct payment for healthcare services;

   ·     inequality in the ability to access and use healthcare services between geographical areas and population groups;

   ·     barriers to many low-income households created by health facilities seeking to increase revenue by charging in addition to health insurance revenue and any co-payments for patients with health insurance.[73]

   [73] WHO and Vietnam Ministry of Health, Health financing strategy of Vietnam (2016–2025), 2016, url, p. 37; 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 35, 20230911072814.

5. The consultancy firm Wise Consulting Finland Oy reported inequalities in human resources for health, stating that in large cities, such as Hanoi and Ho Chi Minh city, the proportion is approximately nine physicians per 10 000 population, whereas in remote areas this can drop to one physician per 10 000 population.[74] Specialised physicians and medical units in fields such as cancer, neurology, autoimmune diseases, palliative care, and mental health, are principally found in large urban areas.[75]

   [74] Ibid.

   [75] Ibid.

6. Country information indicates that corruption in the health sector is widespread. The Vietnamese not-for-profit company Towards Transparency reported that Vietnamese urban citizens in 2010 ranked the health sector as being the third most corrupt institution, and of people who had had contact with medical services in the previous 12 months, 29% reported paying a bribe.[76]

   [76] 'Provision of Healthcare in Vietnam - Medical Country of Origin Information Report', European Union Agency for Asylum (EUAA), 01 August 2023, at p 38, 20230911072814.

   FINDINGS AND REASONS

7. The Tribunal has regard to all material before it, including that which was before the delegate, all subsequent material provided by the applicant to the Tribunal, and relevant country information.

   Receiving country

8. The applicant’s evidence in relation to their nationality, place of birth, education, family composition, ethnicity, religion, places of residence, and languages spoken, has been generally consistent throughout their primary and merits review protection visa processes. The applicant has also been consistent in their evidence that they are a national of Vietnam and of no other country, and have always been. The applicant also demonstrated they speaks Vietnamese, the official national language of Vietnam.[77]

   [77] United States Government, Central Intelligence Agency (CIA), The World Factbook, Vietnam, available at: .

9. The applicant provided to the Department a certified copy of a biodata page of a passport purporting to have been issued to them by the Vietnamese authorities in Vietnam [in] 2009. This document bears a photograph of a person bearing a true likeness to the applicant and contains biodata information consistent with other material before the Tribunal regarding the applicant.

10. On the evidence before it, the Tribunal finds that the applicant is a national of Vietnam and no other country and that Vietnam is their only receiving country for s 36(2)(a) and (aa) of the Act.

    Home area

11. Judicial authority states that decision-makers must assess, on the material before her or him, the place or places to which an individual is likely to return, and that the first step of the decision-maker’s assessment is to make findings about, at least, one of those places.[78]

    [78] CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 per Tracey, Mortimer and Moshinsky JJ at [45].

12. On the material before it the Tribunal finds, if the applicant were to reside in Vietnam, she would return to Thua Thien Hue Province where she has resided for much of her life and where she lived prior to travelling to Australia, and where her family members continue to reside. The Tribunal finds there is no other location within the country where it is likely that they will reside now or in the reasonably foreseeable future.

    Adverse profile

13. At the hearing, the applicant’s witness, [Ms A], gave evidence that sometime in the 1990s the applicant had conflict with the local authorities and the applicant was detained and the authorities tried to charge her with an offence. In her protection visa application form the applicant claimed, among other things, in the past in Vietnam: she was forced to do unpaid labour; she was detained and beaten by the police. It was further claimed in her protection visa application form that if she were to return to Vietnam, she would be imprisoned, beaten by the police, or at the least, forced to work as a slave. When these claims were put to the applicant at the hearing, the applicant confirmed that she did not have fears of the authorities doing this to her ‘directly’, but rather she fears the authorities would do this to her ‘indirectly’ by forcing her to work in hard conditions and that she would be sick and die because of those working conditions. She added that she also fears her employer would ‘indirectly’ force her to work hard in very tough conditions, only offer her night shifts and deny her permanency in employment, and all of that would cause physical harm to her by affecting her health, and as a consequence she would get sick and if she kept working she would die. 

14. At the hearing the oral evidence given by the applicant and her witness in relation to her family’s history was consistent with that provided previously before the Department, and with the material provided in writing to the Tribunal. The Tribunal also notes that her evidence was also generally consistent with country information before the Tribunal. The Tribunal accepts the applicant’s father served in the Army of the Republic of Vietnam (also known as the South Vietnamese Army), including at [a Base] in [Location], and that he also worked for the army intelligence section of those armed forces. The Tribunal also accepts 2 of the applicant’s siblings, including the witness, fled Vietnam in the early 1990s and were subsequently found to be refugees before being resettled in Australia, and that this may also be a contributing factor to the applicant’s adverse family profile.

15. The Tribunal accepts that the applicant and her family members have suffered harm in the past in Vietnam for reason of the applicant’s father’s service in ARVN and their adverse profile as people opposed to the CPV imputed to them by the authorities for reason of their family history. The Tribunal also accepts on the country information before it that families of former ARVN servicepeople can in some circumstances be imputed to be from "bad family backgrounds" because of their ties to the fallen government. The Tribunal also accepts that systems adopted by government authorities and other state affiliated entities may operate in a discriminatory manner to prevent people with this profile from accessing certain categories of employment and further study. The Tribunal further accepts that these discriminatory policies and stigmatisation affecting those family members has also led to educational, political, and economic inequality, and that the applicant and her family were affected in manner.

16. As above, the applicant confirmed at the hearing that she did not have any fears of being forced to do unpaid labour or work as a slave or being beaten or detained by the police, and that her fears in this regard were rather that the authorities would do this to her ‘indirectly’ by forcing her to work in hard conditions and that she would be sick and die because of those working conditions.

17. On the material before it, including the applicant’s and her witness’ evidence and relevant country information, the Tribunal finds the applicant does not fear, and there is not a real chance or alternatively a real risk[79], that she would be physically harmed, detained or otherwise denied liberty for any reason in Vietnam, now or in the reasonably foreseeable future or as a necessary and foreseeable consequence of her removal to that country. The Tribunal also finds that the applicant does not fear, and there is not a real chance or alternatively a real risk, that the applicant would be forced to work as a slave or forced to otherwise undertake unpaid work on return to Vietnam.

    [79] Noting that the threshold for the real risk element in s 36(2)(aa) of the Act is the same as the real chance test in the refugee criterion in s 36(2)(a): Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]. Special leave to appeal from this judgment was refused: Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323.

18. The Tribunal further finds on the material before it that, other than that considered below,  there is not a real chance or alternatively a real risk[80], that the applicant would suffer harm of any kind in Vietnam for reason of her and her family’s adverse family profile or for any other reason now or in the reasonably foreseeable future in Vietnam or as a necessary and foreseeable consequence of her removal to that country.

    [80] Ibid.

    Risk of harm

19. The Tribunal finds on the material before it that the only harm the applicant is at a real chance, or alternatively a real risk[81], or experiencing in Vietnam now or in the reasonably foreseeable future or as a necessary and foreseeable consequence of her removal to that country, is strictly limited to the following:

    a.Discrimination in employment, both in securing employment and in accessing benefits while in employment;

    b.Discrimination in accessing government services;

    c.Discrimination and stigmatisation by members of the public; and

    d.Barriers in accessing medical treatment.

    [81] Ibid.

20. As above, the Tribunal does not accept on the material before it that the applicant would be at risk of any other harm in Vietnam for any other reason, now or in the reasonably foreseeable future or as a necessary and foreseeable consequence of her removal to that country.

    Refugee criterion

    Discrimination in employment

21. On review of the material before it, not limited to country information and the applicant’s and her witness’ consistent oral evidence, the Tribunal finds as follows:

    a.When applying for work in Vietnam the applicant was required to provide prospective employers with a copy of her CV certified by the local authorities, and that this document contained details of her family composition, including her father’s name and previous service with VNCH.

    b.Due to her CV evidencing her father’s previous service with VNCH, the applicant found it very difficult to access employment and for that reason she worked as a street vender for many years to subsist.

    c.In around [Year] she secured a job with a [company] and she remained working for that employer until she travelled to Australia in 2017. Due to her family profile evidenced on her CV, this employer discriminatorily withheld various benefits that she was lawfully entitled to, including access to a permanent employment position and the option of day-time shifts.

    d.The applicant’s employment status as a casual precluded her from being eligible for health insurance, and this meant that when she sought medical care she was required to pay 100% of the fees charged by the provider.

    e.The applicant would not be able to resume her employment with the [factory] on return, and even if they hired her again, she would be forced to work under the same unfavourable working conditions.

22. The High Court has held that past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability high or low of their recurrence.[82]  In this regard, the Tribunal has had regard to the applicant’s evidence and the country information before it, and finds there is a real chance, or alternatively a real risk, that now or in the reasonably foreseeable future the applicant would experience low-level discrimination in employment as follows for reason of her imputed adverse family profile evidenced by her CV:

    a.in accessing employment; and

    b.while in employment, a denial of access to more beneficial employment conditions and benefits, including access to a permanent position.

    [82] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574.

23. Section 5J(5) of the Act provides a non-exhaustive list of the type and level of harm that will amount to serious harm for s 5J(4). This provision does not purport to define ‘serious harm’ but instead provides instances of serious harm referred to in s 5J(4)(b) by way of an aid to their application.[83] The Tribunal notes that, with the exception of s 5J(5)(a), each of the other paragraphs describe an instance of serious harm by reference to an adjectival or circumstantial qualification (‘significant’ or ‘threatens capacity to subsist’).

    [83] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.

24. The Tribunal has considered judicial authority regarding former ss 91R(2)(d) to (f)[84], noting that it is drafted in similar terms to the presently applicable ss 5J(5)(d) to (f), that a threat to subsistence in this context must be at a level that challenges the ability of the individual to continue to exist or remain in being[85], that the hardship must be such that it would actually threaten the applicant’s capacity to subsist.[86] The Tribunal has also had regard to the non-exhaustive nature of ss 5J(5), and what Professor James Hathaway explained, the Convention left the expression of "persecution" undefined because of the impossibility of enumerating in advance all of the forms of maltreatment that might legitimately entitle persons to benefit from international protection.[87]

    [84] As it applied to protection visa applications lodged prior to 16 December 2014: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014). This amendment commenced on 18 April 2015 and apply to protection visa applications made on or after 16 December 2014: table items 14 and 22 of s 2 and item 28 of sch 5 and Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation dated 16 April 2015 (F2015L00543).

    [85] SZBQJ v Minister for Immigration and Citizenship [2005] FCA 143 at [11]; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 at [23].

    [86] MZYPB vMinister for Immigration and Citizenship [2012] FMCA 226 at [13] (where the Court rejected the applicant’s argument that s 91R(2)(d) only required him to demonstrate a threat to his capacity to subsist).

    [87] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd edition, 2014) at p182.

25. The Tribunal has also had regard to judicial authority providing that when assessing whether harm amounts to persecution, including cumulative instances of harm, all relevant personal circumstances of the applicant must be taken into account, not limited to the applicant’s age and frailty.[88] As below, the Tribunal accepts that the applicant suffers from a chronic medical condition relating to an infection in her vertebrae, that she requires ongoing medical treatment and that this condition may deteriorate on return to Vietnam and be at a similar situation as it was prior to her departure from Vietnam. Following this, the Tribunal accepts that, now and in the foreseeable future in Vietnam, the applicant may be more physically vulnerable to harm than other people in the community and has had regard to this.

    [88] AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 per Moshinsky J at [35]. See also:

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.

…

20231107113824.

SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ at [153]; SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 per Tamberlin J at [21]; and SZBBP v Minister for Immigration [2005] FMCA 5 per Driver FM at [35].