1823836 (Refugee)

[2024] AATA 4398

1823836 (Refugee) [2024] AATA 4398 (11 September 2024)

DECISION RECORD

DIVISION:

Migration & Refugee Division

REPRESENTATIVE:

Mr Munashe Rusamo

CASE NUMBERS:

1823836

1906208

2103558

COUNTRY OF REFERENCE:

Vietnam

MEMBER:

Fraser Robertson

DATE:

11 September 2024

PLACE OF DECISION:

Perth

DECISION:

1.     The review applications lodged by the applicant on 17 August 2018 (case 1823836) and 15 March 2019 (case 1906208) be and are hereby combined.

2. In respect of the combined review application, the Tribunal remits the application for a safe haven enterprise visa made on 13 September 2016 for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.

3.     In respect of the review application lodged on 20 March 2021 (case 2103558), the Tribunal sets aside the decision of the delegate and substitutes it with a decision that the visa application was not valid.

Statement made on 11 September 2024 at 12:18pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – illegal departure – particular social group – returned asylum seeker – land compensation disputes – fear of detention – lengthy stay outside Vietnam – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 48, 65, 66, 91, 411, 424, 499

Migration Regulations 1994, Schedule 2; r 4.31

CASES

BIR17 v Minister for Immigration and Border Protection [2019] FCA 850

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178; 260 FCR 447

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; 285 FCR 667

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; 185 FCR 129

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

INTRODUCTION

1. The applicant is [an age]-year-old male Vietnamese national who claims to engage Australia's protection obligations based on a coalescing of factors including his Catholic religion, actual and imputed political opinion, unlawful departure from Vietnam, lengthy time spent away from Vietnam, status as a failed asylum seeker and the disclosure of his personal information following a data breach.

2. The applicant has made three review applications with respect to two separate decisions to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act'). That situation has arisen because of the assumed consequences of the applicant's arrival at the Territory of Ashmore and Cartier Islands ('Ashmore Reef') and the effect of subsequent judicial determinations that relate to those circumstances.

3. The applicant appeared before the Tribunal on 10 September 2024. The Tribunal was assisted by a Vietnamese interpreter. The applicant was represented by a solicitor, Mr Rusamo, who made written and oral submissions that were of considerable assistance in determining these review applications.

4. For these reasons, I have determined that the applicant is a person who satisfies s 36(2)(a) of the Act and that the following decisions ought to be made:

   1. The review applications lodged by the applicant on 17 August 2018 (case 1823836) and 15 March 2019 (case 1906208) be and are hereby combined.

   2 In respect of the combined review application, the Tribunal remits the application for a safe haven enterprise visa made on 13 September 2016 for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.

   3.In respect of the review application lodged on 20 March 2021 (case 2103558), the Tribunal sets aside the decision of the delegate and substitutes it with a decision that the visa application was not valid.

   BACKGROUND

5. The applicant arrived by boat at Ashmore Reef without a valid visa. He was assumed to be an unauthorised maritime arrival ('UMA'), as that phrase is used in the Act. It was also assumed that the bar on making a valid visa application contained in s 46A of the Act applied to him because he was a UMA.

6. Proceeding on the assumption that the applicant was a UMA, the Minister purported to lift the s 46A bar and grant the applicant a Humanitarian Stay (Temporary) visa in October 2014. The Minister purported to lift the s 46A bar a second time in May 2015 and granted the applicant a Bridging Visa E.

7. In April 2016, the Minister again purported to lift the s 46A bar to permit the applicant to apply for a Safe Haven Enterprise Visa ('SHEV'), which the applicant did. He attended an interview to discuss that application in December 2016. A delegate of the Minister refused that application on 29 December 2016.

8. At this time, the applicant was still wrongly assumed to be a UMA. As such, the decision to refuse to grant the applicant a SHEV was assumed to be a fast-track decision and was referred to the Immigration Assessment Authority ('IAA'). The IAA affirmed the decision to refuse to grant the applicant a SHEV, and the applicant sought judicial review of that decision in March 2017.

9. By reason of a decision made by the Full Court of the Federal Court of Australia, the assumptions that the applicant was a UMA and that the s 46A bar applied to him were found to be wrong, based, as they were, on a misunderstanding of the law.[1] On 5 August 2018, the Full Court made orders allowing the appeal in DBB16 with published reasons to follow. The correct legal position was, the Full Court held, that the applicant was not a UMA and s 46A of the Act did not apply to him.

   [1]        DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178; 260 FCR 447 ('DBB16') (Perram, Wigney and Lee JJ).

10. As it happened, the applicant was represented by the same solicitors that acted for the appellant in DBB16. In reliance on their understanding of the outcome in DBB16, on 17 August 2018, the applicant applied to the Tribunal for review of the delegate's decision to refuse to grant him a SHEV on 29 December 2016. That review application is case number 1823836.

11. The reasons of the Full Court in DBB16 were published on 19 October 2018. In consequence of those published reasons, the judicial review proceedings commenced by the applicant in relation to the decision of the IAA were resolved, by consent, [in] December 2018. An order was made to quash the decision of the IAA. The consent orders include declarations that the applicant:

    …

    2. The applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act).

    3. The applicant has not been notified pursuant to s 66 of the Act of the decision of a delegate of the Minister for Immigration and Border Protection dated 29 December 2016.

12. The applicant was re-notified of the decision of the delegate to refuse his application for a SHEV on 21 February 2019. In response, the applicant lodged a review application with the Tribunal on 15 March 2019. This review application was assigned case number 1906208.

13. Thereafter, the applicant was notified by the Department that as he had been granted a Humanitarian Stay (Temporary) visa in October 2014, his application for a SHEV was invalid by operation of s 91K of the Act. Following this, by a Ministerial Determination dated 8 November 2019, the Minister purported to lift the bar contained in s 48A if, and only if, among other things, the non-citizen had previously been refused, or purportedly refused, the grant of a protection visa on by operation of s 91K of the Act. This prompted the applicant to make a second application for a SHEV.

14. However, as was later explained by a Full Court of the Federal Court in CBW20,[2] the assumption that s 91K of the Act applied to the applicant was erroneous. The application of s 91K to the applicant required the grant of the Humanitarian Stay (Temporary) visa, which occurred in October 2014, be valid. The grant of that visa to the applicant was invalid for the reasons the Full Court gave in CBW20,[3] namely that the grant occurred on the erroneous assumption that the applicant was a UMA. On the basis of the reasoning in CBW20, s 91K never applied to the applicant, and his application for a SHEV made in 2016 was not invalid by operation of that section.

    [2]        Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; 285 FCR 667 (Perram, Moshinsky and Thawley JJ).

    [3]        Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; 285 FCR 667 at [50]-[61] (Perram, Moshinsky and Thawley JJ).

15. Moreover, as the applicant’s first SHEV application was not invalid due to the operation of s 91K, the s 48A bar was not lifted to permit the second SHEV application. It was not lifted because he was not a person within the class of persons specified in the Ministerial Determination dated 8 November 2019. As such, the s 48A bar lift did not apply to him, and the second SHEV application was not valid.

16. I, therefore, accept the applicant’s submission that the second SHEV application lodged by the applicant was invalid because of s 48A of the Act. [4] The decision of the delegate concerning the second SHEV application will be aside the decision and substituted with a decision that the visa application was not valid.

    [4]        See written submissions dated 3 September 2024, [43].

    The remaining review applications

17. The applicant submits that case number 1906208 is a valid review application, and that case number 1823836 is invalid. The applicant submits that because the applicant had not been validly notified of the refusal of his SHEV application under s 66 of the Act before that review application was made, the review application is invalid as it was not made "within" the prescribed period.

18. The Tribunal has jurisdiction to review a 'Part 7-reviewable decision' as that term is defined in s 411 of the Act. The delegate's decision on 29 December 2016 is a 'Part 7-reviewable decision' within the meaning of the Act.

19. An application for review of such a decision must, among other things, be made "within the period prescribed, being a period ending not later than 28 days after the notification of the decision".[5] Regulation 4.31 of the Migration Regulations 1994 (Cth) (the 'Regulations') provides that "the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision."

    [5]        Migration Act 1958 (Cth), s 412(b).

20. In those circumstances, the construction advanced by the applicant that a valid review application can only be lodged "within" a prescribed period which did not commence until the renotification took place, is not entirely without merit. However, there is authority for the proposition that so long as the decision in respect of which review is sought answers the definition of 'Part 7-reviewable decision' in s 411 of the Act, even if the prescribed period for applying for review has not commenced, a valid review application can nevertheless still be lodged.[6] I respectfully agree. There is no reason to infer in the Act a legislative intention to invalidate a review application lodged before the commencement of the prescribed period.[7] In those circumstances, I consider that the correct and preferable decision is that the review application in case number 1823836 is valid.

    [6]        SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; 185 FCR 129 at [33]-[35] (Emmett J); see also, in obiter, [63]-[64] (Buchanan & Nicholas JJ).

    [7]        See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]; Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 at [61].

21. The review application in case number 1906208 is also valid, as it was lodged within the prescribed period. I raised with Mr Rusamo and the applicant the potential to combine the valid review applications and no objection to that course was raised. I will consider the valid review applications together. I now turn to a substantive consideration of the applicant's protection claims.

    CRITERIA FOR THE GRANT OF A PROTECTION VISA

22. The dispositive issue in this application is whether the applicant satisfies the refugee criterion for protection contained in s 36(2)(a) of the Act.

    Refugee criterion

23. Section 36(2)(a) of 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 decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[8]

    [8]        Migration Act 1958 (Cth), s 5H(1)(a).

24. 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.[9] Persecution must involve serious harm[10] and systematic and discriminatory conduct.[11]

    [9]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [10]       Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.

    [11]       Migration Act 1958 (Cth), s 5J(4)(c).

25. A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[12] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.[13]

    [12]       Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [13]       DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.

    ANALYSIS, FINDINGS AND REASONS

26. In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs[14] and the Department of Foreign Affairs and Trade ('DFAT') Country Information Report[15].

    [14]       See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

    [15]       'DFAT Country Information Report: Vietnam', Department of Foreign Affairs and Trade, 11 January 2022, 20220111094403 ('2022 DFAT Report').

    Country of nationality

27. The applicant claimed to be a Vietnamese national. He has been consistently accepted as being from Vietnam and provided evidence supporting his Vietnamese nationality. I am satisfied that Vietnam is the applicant’s country of nationality and the receiving country.

    Findings in respect of the applicant's claims

28. The applicant participated in an 'entry interview' shortly after he arrived in Australia. This interview was his first substantive and formal engagement with the Australian authorities. I should approach the applicant's failure to raise his claims at the entry interview cautiously and reasonably.[16] Following the entry interview, the applicant made a series of written claims for protection, was interviewed twice regarding his protection claims, and gave oral evidence before the Tribunal. These events primarily occurred over more than a decade ago. The delegate considered that the applicant "appeared to answer open and honestly and it is noted there is consistency in his claims".[17] The applicant's claims are plausible, supported by country information and have been advanced in a specific and consistent manner over time. I accept the submission that the applicant has been consistent over time concerning his claims and that his claims are credible. Based on the information and material before me, including the applicant's evidence at the hearing which I considered persuasive and compelling, and the exhortations to give the benefit of the doubt to asylum seekers who are generally credible[18], I accept and am satisfied of the following matters.

    [16]       See, for example, MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; BIR17 v Minister for Immigration and Border Protection [2019] FCA 850.

    [17]       Delegate's decision dated 29 December 2016, p 3.

    [18]       See Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 [203]-[204].

29. The applicant was born in Nghe An, Vietnam, in [specified year]. He is of Kinh ethnicity. He was born into a Catholic family and raised in that faith. The applicant has consistently maintained, and I accept, that he is a Catholic and practising Catholic. I accept that he was a practising Catholic in Nghe An, part of the Roman Catholic Diocese. I also accept that the applicant and his family were [Parish 1] parishioners. I accept that the applicant was a youth member of that parish when he was growing up.

30. I accept that there was a conflict between the applicant's parish and the Vietnamese authorities in and around November 2011. The applicant submits, and I accept, that this is consistent with contemporary accounts of violence propagated by the Vietnamese government to intimidate Catholics in Vietnam, particularly in the context of challenges in respect of and around land acquisition and compensation.[19] I accept that during the course of that dispute the applicant was part of a group of people who, among other things, [confronted] the Vietnamese authorities who had been sent to the Parish [details deleted]. Based on the material before me, I am prepared to accept that [the authorities] [apologised] for their attempts to reclaim the Parish land. Moreover, I am also prepared to accept, and country information supports, that two members of the applicants' parish, [named] were, following his arrival in Australia, arrested, beaten and forced to make involuntary confessions.

    [19]       See the written submissions lodged by the applicant on 3 September 2024, [13] citing Australian Vietnamese Christian Association Inc.', November 2011, < and Office of the United Nation High Commissioner for Human Rights, ‘Vietnam's Repression of the Catholic Church from 2009 through 2013 – Material for the Universal Periodic Review’, 2009, < type="1">

31. I accept that the applicant departed Vietnam unlawfully. I accept that he was in detention on 31 January 2014, and, as such, his details were, for a short time, publicly accessible on the Department's website. However, there is no evidence before me to satisfy me that the Vietnamese authorities accessed those details. I accept that the applicant would be returning to Vietnam as a person who had been absent from Vietnam for more than a decade after he had unlawfully departed. I am satisfied, in those circumstances, that the applicant would be identified as, or assumed to be, a failed asylum seeker.

    DOES THE APPLICANT SATISFY THE REFUGEE PROTECTION CRITERION

32. If returned, the applicant submits because of his overall profile, he will be perceived as holding views adverse to the Communist Party of Vietnam ('CPV') and the Vietnamese authorities more generally. He submits that his overall profile includes his having departed Vietnam unlawfully, having been absent from Vietnam for more than a decade, his past involvement in opposing the authorities in support of his faith, his religious profile as a Catholic who will practice his faith on return, his information being exposed because of a data breach and his status as a failed asylum seeker. It is said that together, these matters will result in the applicant facing a real chance of serious harm if he is to be returned to Vietnam.

    Country information

33. Vietnam has a single political party, the CPV, and opposition parties are effectively illegal.[20] Vietnam is officially an atheist state, yet its constitution guarantees freedom of religion.[21] Vietnamese laws require religious groups and clergy to register and join a supervisory body that the CPV controls. Authorities place restrictions on the day-to-day activities of some believers.[22] Vietnamese law employs vague and loosely worded provisions and phrases to restrict freedom of religious expression on legal grounds.[23]

    [20]       2022 DFAT Report, [3.49].

    [21]       2022 DFAT Report, [3.13].

    [22]       2022 DFAT Report, [3.13].

    [23]       'Commentary on the current state of Freedom of Religion or Belief', All-Party Parliamentary Group for International Freedom of Religion or Belief (UK Parliament), 01 November 2018, 20190109141217.

34. DFAT reported in January 2022 that there is often a fine distinction between faith and politics.[24] Land disputes occur.[25] DFAT's assessment in January 2022 was that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.[26] Significantly, however, DFAT also reported that:

    Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.

    [24]       2022 DFAT Report, [3.26].

    [25]       2022 DFAT Report, [3.28].

    [26]       2022 DFAT Report, [3.31].

35. Topics that are deemed to be sensitive can change or depend on local government priorities at the time.[27] Protests about land and its compulsory acquisition occur occasionally.[28] Such protests are associated with a moderate risk of official discrimination.[29]

    [27]       2022 DFAT Report, [3.53].

    [28]       2022 DFAT Report, [3.65].

    [29]       2022 DFAT Report, [3.67].

36. In November 2022, the U.S. Department of State placed Vietnam on its Special Watch List. Following an in-country visit in May 2023, the US Commission on International Religious Freedom ('USCIRF') reported that ‘the recent crackdown on civil society, increased pressure on independent religious communities, alarming reports of forced renunciations of faith, and other growing religious freedom violations add up to a clear reversal in that once-positive trajectory’.[30] It recommended the U.S. Department of State designate Vietnam as a Country of Particular Concern. The USCIRF’s reported:

    …[H]arassment of Catholic communities also increased. In February, officials from Vu Ban, Hoa Binh Province, disrupted a Mass celebrated by Archbishop Joseph Vu Van Thien of Hanoi and other priests. The Hanoi Archdiocese delivered a formal letter of complaint to the provincial government, protesting the local authorities’ frequent harassment and urging them to respect the religious freedom of Catholics in that province. Additionally, land disputes between Catholics and local governments persisted.

    [30]       ‘Religious Freedom Conditions in Vietnam in 2023', United States Commission on International Religious Freedom, September 2023, p 6, 20230913122001.

37. In terms of illegal departure from Vietnam, DFAT reports that:

    [5.29] Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.

    [5.30] In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.

    [5.31] DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.

    [5.32] Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.

    …

    [5.35] DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.

38. Detention by the state can involve assault to extract confessions and torture.[31] Bail is rarely available for political crimes.[32] In practice, people can be held for some time, including for months, whilst investigations occur.[33] The conditions in prisons are poor, and violence is a possibility.[34] The United States Department of State 2023 Country Report on Human Rights Practices in respect of Vietnam[35], published in April 2024, reported that detainees commonly reported mistreatment and torture by security officers during arrest, interrogation and detention. It further noted that abuses were not limited to activists of political prisoners.

    [31]       2022 DFAT Report, [4.6].

    [32]       2022 DFAT Report, [4.9].

    [33]       2022 DFAT Report, [4.7].

    [34]       2022 DFAT Report, [5.12]-[5.17].

    [35]       '2023 Country Reports on Human Rights Practices - Vietnam', US Department of State, 22 April 2024, 20240423112800.

39. The applicant submits that in July 2023, the CPV issued a direction which required close monitoring of the Vietnamese diaspora.[36] It is claimed that the directive was intended to remain secret but was exposed by media reporting. The effect of the directive, known as 'Directive 24', was considered in an article dated 4 March 2024[37] wherein it was reported:

    [36]       See applicant's written submissions dated 3 September 2024, [50].

    [37]       'Communist Party Directive Takes Aim At 'Hostile Forces' in Vietnam', 4 March 2024, The Diplomat, < see also ‘Vietnam's Leaders Declare War on Human Rights as a matter of official policy', The 88 Project, February 2024, < Communist Party of Vietnam (CPV) has issued a broad-ranging directive calling for further restrictions against the activities of civil society groups, including trade unions, and increasing scrutiny of foreign organizations and Vietnamese nationals traveling abroad.

    The document, known as Directive 24, was obtained by Project88, a Bangkok-based human rights organization focused on Vietnam, which examined it in a report released on Friday. While the organization was unable independently to verify the authenticity of the directive, references to it in several CPV media outlets suggest that it is genuine.

    Directive 24, which the Politburo reportedly issued in July, seeks to contain and manage the supposed threat posed to Vietnam’s national security and the country’s economic opening.

    As it stated in Project88’s English translation, “The comprehensive and deep international integration and implementation of trade agreements has created new difficulties and challenges for national security.”

    This has provided openings for “hostile and reactionary forces” to “increase their sabotage and internal political transformation activities… forming ‘civil society’ alliances and networks, ‘independent trade unions,’ creating the premise for the formation of domestic political opposition groups.”

    As such, Directive 24 calls for increased vigilance of foreign investors to ensure they cannot “hide in the shadows” and take over “vital economic sectors.” It warns that for all of Vietnam’s apparent economic successes, “security in the economy, finance, currency, foreign investment, energy, labor is not firm, there is a latent risk of foreign dependence, manipulation, and seizures of certain ‘sensitive areas’.” It calls for increased scrutiny of people taking advantage of international commitments that Vietnam has made to mobilize and form opposition political organizations that implement “color revolutions” and “street revolutions.” With a similar goal, the directive also calls on the authorities to “closely manage officials, party members, and Vietnamese citizens that go abroad to do business, cooperate, engage in exchanges, visit, and travel.”

    In Project88’s characterization, Directive 24 “frames all forms of international cooperation and commerce as threats to national security and articulates a disturbing plan to deal with these perceived threats.”

    …

    However, Directive 24 represents less a departure than a refinement and reinforcement of the CPV’s past practice. As Carl Thayer, an emeritus professor of politics at the University of New South Wales, told the BBC, the directive “does not signal a new wave of internal repression against civil society and pro-democracy activists so much as business as usual, that is, the continuing repression of these activists.”

    Over the past decade, the country has seen a marked narrowing of the already scant space for independent political organizing and journalism. As Project88 has been diligent in documenting, the country’s security apparatus has since 2016 “imprisoned scores of human rights activists and dissenters, while shutting down the only independent journalists’ association, publishing house, and anti-corruption organization operating in the country.”

    Does the applicant have a well-founded fear of persecution?

40. The country information to which I have referred above indicates that while Catholics in Vietnam may, in general, worship freely, should they be perceived to challenge the interests of the CPV or become of adverse attention to the CPV, then they face a moderate risk of official discrimination which may include arrest or violence. One area where Catholics may come to such adverse attention is with respect to challenges for adequate compensation around land acquisition, with the possibility of even low-level participants being targeted.

41. I am satisfied that the applicant is a Catholic and has, at least previously, been involved in challenging the CPV with respect to land compensation disputes. His unlawful departure and long absence from Vietnam enhance the applicant's adverse profile. Even though I have found no evidence that the applicant's information was accessed, in light of Direction 24, I cannot positively exclude that such information has not now been accessed. Moreover, the effect of the Departmental 'data breach' potentially disclosing that the applicant was in immigration detention in 2014 is another matter that, when considering the applicant's long absence from Vietnam, increases the prospect that he will be more readily identified by Vietnamese authorities as having sought asylum in Australia. That is the applicant's time spent in immigration detention in 2014 and continuing to be absent from Vietnam for another 10 years would provide a sound basis for an inference to be drawn by the Vietnamese authorities that the applicant likely resisted repatriation to Vietnam and sought protection.

42. Additionally, I accept that the applicant will likely, if not inevitably, be questioned upon his return, and there would be a real chance that the circumstances of his departure, including the reasons for it, will become known to the Vietnamese authorities. In those circumstances and considering the available country information to which I have referred, I am satisfied that the applicant faces a real chance of serious harm, namely the deprivation of his liberty and significant physical harassment if he is returned to Vietnam. Whilst the risk to the applicant is manifested because of his cumulative profile, which comprises various aspects, I am satisfied that the essential and significant reason for the real chance of harm the applicant faces would be his imputed political opinion. In the eyes of the CPV, as I have already noted, there is often a fine distinction between faith and politics.

43. I am satisfied that the applicant's real chance of persecution is from CPV and, as such, is effectively the State. As such, the real chance of persecution relates to all areas of Vietnam, and no effective protection measures are available to the applicant. I further find that there are no permissible modifications of behaviour that I can require of the applicant to mitigate the real chance of persecution that the applicant faces.

44. I am satisfied that the applicant is a refugee within the meaning of the Act. As such, I am satisfied that the applicant satisfies s 36(2)(a) of the Act. There is no evidence that s 36(3) applies to the applicant.

45. As this is an application to review a decision to refuse to grant the applicant a protection visa, I am directed to deal only with the elements of the criteria necessary to resolve the application for review. Having concluded that the applicant satisfies s 36(2)(a) of the Act, it is unnecessary to consider whether the applicant satisfies s 36(2)(aa) of the Act.

    DECISION

46. The review applications lodged by the applicant on 17 August 2018 (case 1823836) and 15 March 2019 (case 1906208) be and are hereby combined.

47. In respect of the combined review application, the Tribunal remits the application for a safe haven enterprise visa made on 13 September 2016 for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.

48. In respect of the review application lodged on 20 March 2021 (case 2103558), the Tribunal sets aside the decision of the delegate and substitutes it with a decision that the visa application was not valid.

    Fraser Robertson
    Member