1823926 (Refugee)

1823926 (Refugee) [2023] AATA 3097 (24 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sarah Shnider
CASE NUMBERS:  1823926
2204343
1800558
2204344
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Rachel Da Costa
DATE:24 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decisions in matter 2204343 to refuse the applicants Safe Haven Enterprise visas made on 2 March 2022, and substitutes it with a decision that the visa applications were not valid.
DECISION:In respect of matter 1823926, the Tribunal affirms the decision not to grant the applicants protection visas.
DECISION:In respect of matter 1800558, the Tribunal affirms the decision not to grant the applicants protection visas.
DECISION:In respect of matter 2204344, the Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 24 August 2023 at 1:09pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – Part 7-reviewable decision – section 91K bar not applicable – section 48A bar not lifted – invalid visa application – decision under review substituted
REFUGEE – protection visa – Vietnam – religion – Catholic – ordinary members – imputed anti-government political opinion – attendance at a protest – arrest or detention – confiscation of land – visits by local authorities – perceived as wealthy farmers – payments of bribe – access to identity documents – credibility concerns – inconsistent and confusing evidence – memory issues – undiagnosed mental health issues – difficulties in disclosing and discussing traumatic experiences – sur place activities in Australia – attendance of 30 April events – particular social group – persons who left Vietnam illegally – failed asylum seekers – survivor of sexual violence – women in Vietnam – access to cancer treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 45AA, 48A, 48B, 65, 91K, 424A
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATIONS FOR REVIEW

This is a combined decision record in respect of four related applications for review. On 7 August 2023, the applicants consented in writing to the Tribunal producing a combined decision record for these matters.
The decisions are in respect of the following applications for review:
Case numbers 1823926 and 2204343: these are a combined application for review of two decisions made by delegates of the Minister for Immigration and Border Protection to refuse to grant [the first named applicant] and [the second named applicant] Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first decision is in respect of a Temporary Protection visa (TPV) which the applicants applied for on 28 February 2017. A delegate refused that application on 14 December 2017. The applicants applied to the Tribunal for review of that decision on 17 August 2018 (case number 1823926). The second decision is in respect of a Safe Haven Enterprise visa (SHEV) which the applicants applied for on 5 November 2020. A delegate refused that application on 2 March 2022. The applicants applied to the Tribunal for review of that decision on 25 March 2022 (case number 2204343).
Case number 1800558: this is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 December 2017 to refuse to grant [the third named applicant] and [the second named applicant] Protection visas under s 65 of the Act. The applicants applied for Protection (Class XA) visas. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth), from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas. A delegate refused to grant the visas on 14 December 2017. They applied to the Tribunal for a review of the delegate’s decision on 8 January 2018.
Case number 2204344: This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 2022 to refuse to grant [the fourth named applicant] a protection visa under s 65 of the Act. He applied for the visa on 29 March 2018. On 25 March 2022, he applied to the Tribunal for a review of the delegate’s decision.
In each case, the delegate refused to grant the visa on the basis that the applicant in question is not a person in respect of whom Australia has protection obligations.
The family of applicants
[The first named applicant] is a [age]-year-old citizen of Vietnam. [The third named applicant] is a [age]-year-old citizen of Vietnam. [The third named applicant] is [the first named applicant]’s husband.
[The second named applicant], is a [age]-year-old girl who was born in Australia on [date] and is a citizen of Vietnam. [The fourth named applicant] is a [age]-year-old boy who was born in Australia on [date] and is a citizen of Vietnam. [The second named applicant] and [the fourth named applicant] are the children of [the first named applicant] and [the third named applicant]. [The first named applicant] and [the third named applicant] have two other children who live in Vietnam and who are not included in these applications.
At the time [the first named applicant]’s and [the second named applicant]’s application for review was lodged in case number 1823926, their lawyer requested that the application for review be combined with case number 1800558 ([the third named applicant]’s and [the second named applicant]’s case) so their matters could be heard together as a family. The claims in the family’s cases are all very closely related and the Tribunal heard these cases consecutively (or concurrently where required), as discussed further below. The applicants have all been represented by the same lawyers since very early in their process of applying for protection, which has been helpful.
The Tribunal notes that [the second named applicant] is included as a second applicant in both [the first named applicant]’s and [the third named applicant]’s protection visa applications. Her claims for protection in both applications are the same. [The fourth named applicant] has a separate protection visa application. His claims for protection are very similar to those of [the second named applicant]. In the Tribunal hearing, [the first named applicant] indicated that she would give evidence on behalf of [the second named applicant] and [the fourth named applicant]. [The third named applicant] was also given the opportunity to give evidence in respect of their claims.
Procedural history of cases 1823926 and 2204343 ([the first named applicant] and [the second named applicant])
It is convenient to deal first with the procedural history of cases 1823926 and 2204343 given their complexity.
According to Departmental records, [the first named applicant] arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. [The second named applicant] was born in Australia on [date] in immigration detention in the Northern Territory. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, neither [the first named applicant] nor [the second named applicant] is a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a TPV or SHEV is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
[The first named applicant] and [the second named applicant] were granted Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visas on 27 August 2015. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
[The first named applicant] and [the second named applicant] applied for a TPV on 28 February 2017 (the first visa application). A delegate of the Minister decided to refuse to grant these visas. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.
Following this, [the first named applicant] and [the second named applicant] purported to make a second application for a SHEV on 5 November 2020 (the second visa application). However, their first visa applications for TPVs were not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for them because they were not within the class of persons specified in the then Minister’s s 48B determination.
[The first named applicant] and [the second named applicant]’s first applications for TPVs were refused by the delegate on 14 December 2017. The delegate refused to grant them TPVs visa on the basis that they were not persons in respect of whom Australia has protection obligations. An application for review of the delegate’s decision was made to the Tribunal on 17 August 2018.
The second visa applications, which were for SHEVs, were refused by a delegate on 2 March 2022. [The first named applicant] and [the second named applicant] applied to the Tribunal for review of the delegate’s decision on 25 March 2022. However, the second visa applications are, and always were, barred under s 48A. Accordingly, the second visa applications for SHEVs are invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa applications and substitute the delegate’s decision with a decision that the second visa applications are invalid.
[The first named applicant] appeared before the Tribunal on 2 March 2023 and, following an adjournment, again on 8 March 2023 to give evidence and present arguments. [The second named applicant] did not attend the hearings and [the first named applicant] confirmed that she was giving evidence on her own behalf and on behalf of [the second named applicant] in respect of their claims for protection. [The third named applicant] also had the opportunity to give evidence in respect of [the second named applicant]’s claims for protection. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review and the representative attended the first hearing in person and the second hearing by videoconference.
After these hearings, the Tribunal was made aware of the visa validity issue referred to above. This was as a result of information received from the Department about the consequences of the judgment in CBW20. Having considered that information, the Tribunal agreed with the Department’s assessment that the second visa application, for a SHEV, was invalid.
In light of this development, the Tribunal invited [the first named applicant] and [the second named applicant] and their representative to a hearing on 12 July 2023 so that it could explain the situation to them and give them the opportunity to comment or respond. [The first named applicant] attended the hearing by telephone (at her request) and her representative attended the hearing by videoconference. The Tribunal was assisted by an interpreter in the English and Vietnamese languages.
The Tribunal explained to [the first named applicant] that based on the information provided by the Department, it had reached the view that the SHEV applications were invalid and there was only one option available to the Tribunal in terms of its decision in relation to those applications for review. The Tribunal also explained to [the first named applicant] that despite this, it could still consider all her and [the second named applicant]’s claims for protection in the context of their valid TPV applications and it still had all the evidence and submissions before it in relation to both applications for review, which it had discussed with [the first named applicant] in the hearing and written to her and [the second named applicant] about after the hearing under the s 424A procedure. [The first named applicant] and her representative did not have any substantive comments or concerns to raise in response to the information provided by the Tribunal.
Accordingly, the Tribunal has proceeded to consider and make findings on [the first named applicant]’s and [the second named applicant]’s claims for protection in the context of their valid TPV applications which were made on 28 February 2017 (case number 1823926).
Procedural history of cases 1800558 ([the third named applicant] and [the second named applicant]) and case 2204344 ([the fourth named applicant])
As none of the other family members arrived in Australia by sea at the Territory of Ashmore and Cartier Islands, their cases are not affected in the same way as those of [the first named applicant] and [the second named applicant] and have proceeded in the usual way.
CLAIMS AND EVIDENCE
Background
[The first named applicant]
Based on information contained in her protection visa application forms and other documents provided to the Department and Tribunal, [the first named applicant]’s personal background is as follows.
She was born in [Village 1], [District 1], Nghi An province, Vietnam in [year]. She is a Vietnamese citizen. She speaks, reads and writes Vietnamese and a little English. She is a Catholic.
In Vietnam, she has her mother who is a widow. Her mother was born in [Village 2], [District 2], Nghi An province. Her father is deceased. He was born in [District 1], Vinh city. She also has two brothers and two sisters in Vietnam. Two of her siblings live near her mother and two live in the Ha Ting province.
[The first named applicant] married in Vietnam in March 2007. She and her husband ([the third named applicant]) have two children who were born in Vietnam in [year] ([named]) and [year] ([named]). Those children remain living in Vietnam with [the first named applicant]’s brother who lives in Ha Ting province. When [the first named applicant] left Vietnam, her children lived with her mother. Then they lived with her parents-in-law for about nine months and then they lived with her brother.
[The first named applicant] and her husband also have two children who were born in Australia in [year] ([the second named applicant]) and [year] ([the fourth named applicant]). [The first named applicant] is in regular contact by telephone with her relatives in Vietnam. She speaks to her children in Vietnam every night by phone.
In Vietnam, [the first named applicant] lived in [Village 1], [District 1], Vinh city from birth until early 2007. She then lived on a block of land with no number in [Village 3], [Ward 1], Vinh city (district), Nghe An province until late February 2013. This is the same place that her parents-in-law live. After that, she left for Australia.
[The first named applicant] completed High School in Vietnam up to Year 11 at [School 1] in [Ward 2], Nghe An province. After this, [the first named applicant] was self-employed working with her family and then with her husband as a farmer.
[The first named applicant] arrived in Australia as an unauthorised maritime arrival [in] April 2013. She departed Vietnam illegally by boat [in] February 2013. A people smuggler confiscated her Vietnamese passport before she left Vietnam. She has not returned to Vietnam since arriving in Australia.
[The first named applicant]’s husband departed Vietnam legally by plane and arrived in Australia by boat [in] April 2013 (before [the first named applicant]).
[The third named applicant]
Based on information contained in his protection visa application forms and other documents provided to the Department and Tribunal, [the third named applicant]’s personal background is as follows.
He was born in [Village 3], Vinh city, Nghe Anh province, Vietnam in [year]. He speaks, reads and writes Vietnamese. He is Catholic. He married [the first named applicant] [in] March 2007. He is a Vietnamese citizen.
He departed Vietnam legally from Saigon airport using his own passport. He arrived in Australia by boat [in] March 2012.[1] A smuggler took his passport.
[1] According to Departmental movement records, [the third named applicant] arrived in Australia by boat on 8 April 2013.
In Vietnam, he was a rice farmer. He is in contact with relatives in Vietnam by phone.
He spent time in immigration detention in Darwin.
[The second named applicant] and [the fourth named applicant]
According to information provided in her protection visa application forms, [the second named applicant] was born in Australia in [year] in [the] Immigration Detention Centre, Northern Territory. She is baptised as a Catholic. She is a Vietnamese citizen.
According to information provided in his protection visa application form, [the fourth named applicant] was born in Australia in [year]. He is a Vietnamese citizen. He is in the legal custody of his parents. He has two siblings in Vietnam. He is a Catholic.
Migration and visa history
As discussed with the applicants in the hearings and reflected in documents on the Department and Tribunal files, including the various delegates’ decisions, the applicants’ migration and visa history is as follows:
·     [Date] April 2013: [the third named applicant] arrived in Australia by boat
·     [Date] April 2013: [the first named applicant] arrived in Australia by boat
·     8 May 2013: Entry Interview conducted with [the third named applicant]
·     18 May 2013: Irregular Maritime Arrival Entry Interview conducted with [the first named applicant]
·     [Date]: [the second named applicant] born in Australia
·     20 June 2014: [the third named applicant] and [the second named applicant] applied for a Permanent protection visa (later converted to TPV[2])
[2] See discussion above.
·     28 February 2017: [the first named applicant] and [the second named applicant] applied for a TPV
·     14 December 2017: [the first named applicant]’s and [the second named applicant]’s TPV application refused by the delegate
·     14 December 2017: [the third named applicant]’s and [the second named applicant]’s TPV application refused by the delegate
·     8 January 2018: [the third named applicant] and [the second named applicant] lodge application for review of TPV refusal with the Tribunal
·     [Date]: [the fourth named applicant] born in Australia
·     29 March 2018: [the fourth named applicant] applies for a protection visa
·     23 July 2018: Immigration Assessment Authority (IAA) affirmed TPV refusal for [the first named applicant] and [the second named applicant]
·     17 August 2018: [the first named applicant] and [the second named applicant] lodge application for review of TPV refusal with the Tribunal
·     [Date[ September 2018: Federal Circuit Court ordered that the decision of the IAA be quashed
·     5 October 2020: [the first named applicant] and [the second named applicant] advised TPV application was invalid due to the decision in DBB16
·     5 November 2020: [the first named applicant] and [the second named applicant] apply for a SHEV
·     2 March 2022: SHEV application refused by the delegate
·     25 March 2022: [the first named applicant] and [the second named applicant] lodge application for review of SHEV refusal with the Tribunal
[The first named applicant]’s and [the third named applicant]’s claims for protection

[The first named applicant]’s and [the third named applicant]’s claims for protection are very closely related. They are contained in a number of documents and interviews, the relevant parts of which are set out below. The Tribunal has carefully read and considered the contents of these documents and it has also listened to recordings of the various interviews if they were available. In the Tribunal’s view, their claims have evolved and changed in some important respects over time. The consequence of this is analysed in detail below.
8 May 2013: Arrival interview ([the third named applicant])
[The third named applicant] stated that:
·     Before beginning his journey to Australia he was living at his house in a paddy field.
·     The paddy fields belong to his parents.
·     He left Vietnam because his circumstances are not enough to take care of his children for their education.
·     In December, the local government delayed people from going to church by stopping their bicycles, but nothing else happened.
·     He has not been involved in protests against the government.
·     He is an ordinary member of “[Group 1]” which is a charity group.
·     He has never been arrested or detained by the police.
·     The authorities made it difficult for him and his wife to register their marriage.
·     When he left Vietnam, he travelled from Vinh city bus station to Saigon by bus and he departed Vietnam by plane.
18 May 2013: Irregular Maritime Arrival Entry Interview written record and recording ([the first named applicant])
[The first named applicant] stated that:
·     The local government was always oppressing her.
·     They were farmers and the local government confiscated their land at the end of last year and many other things as well.
·     They protested and said if the land was confiscated they should be given other land.
·     They were Catholics and wanted to go to mass at [Church 1] but the police and local government prohibited them.
·     Her children were not issued birth certificates and they are not allowed to go to school. If she wanted documents she had to pay for them.
·     After her husband left the local government authorities kept harassing her at home.
·     Her parents in law and husband’s siblings came and harassed her and verbally abused her.
·     There is no other reason she left Vietnam.
·     She is a member of a religious organisation called [Group 1] which recycled goods to raise money to build a church.
·     She protested on 11 July 2012 against the local government confiscating the land of the church and the police and government officials smashed statues in the church. A few thousand people protested.
·     After the protest she was detained for one week and she was tortured and beaten.
9 September 2013 (approximately): handwritten statement by [the first named applicant] with English translation
[The first named applicant] claims:
·     They have a piece of land which they cultivate.
·     On 2 December 2012, the ward police came and asked money from them which they gave. The next day they came again. They didn’t give more money. This created disputes.
·     On 5 January 2013, the police came with a gang of drug addicts to vandalise their house and poison their farm animals. Her husband was severely beaten and had bruises all over his body.
·     At Christmas, they went to church and were assaulted and bashed by the police. They surrounded their car and they were beaten and taken away and locked up, and their vehicle was taken away.
·     They complained and took legal action but nothing happened. The local police would not leave them alone.
·     In February 2013, they decided to escape. [The third named applicant] left and then [the first named applicant] and her children went to live at her mother’s place.
·     The police came to her mother’s place, they took [the first named applicant] away and raped her and she was charged and they contacted her in-laws. Her in-laws abused her.
·     Her family are still persecuted.
·     In June 2013, the same local police took her mother and brother for no reason and locked them up and questioned them harshly. Her brother disappeared.
·     If they return to Vietnam they will be killed.
·     [The first named applicant]’s handwritten statement also had attached the printout of an untranslated online news article.
8 June 2014: Statutory Declaration of [the first named applicant]
[The first named applicant] states:
·     She left Vietnam because she was subjected to religious discrimination.
·     She belongs to a church youth group called the “[Group 1]”.
·     She and her husband married in 2007 but the authorities refused to issue them a marriage certificate and family certificate because they were active members of the Catholic church. They managed to obtain these documents in 2012 with the assistance of a relative and paying a bribe.
·     In July 2011, the local police damaged the statue of Virgin Mary in their church. She and her husband attended a protest and were arrested. They were held for several days then released.
·     On Christmas Eve 2012, her husband was arrested when they were on their way to church. She and the children were not held at the police station and were told to return home.
·     In January 2013, the local police came to their house, trashed their furniture and killed their livestock. The police did not tell them why they did this but she and her husband know it is because they are Catholics. Her husband was angry and tried to stop the police and was beaten.
·     They went to Vinh city to complain to the head of police but he refused to help them.
·     They stayed with her mother for a while and were thinking of staying there permanently but then they heard that some of the members of “[Group 1]” had been arrested and they got scared her husband would be arrested too.
·     [The third named applicant] made arrangements to leave Vietnam and then [the first named applicant] followed in March 2013 when she could raise the money.
·     In June 2013, her mother and older brother were arrested. Her mother was released but her brother, who is a member of the [Group 1] was detained until April 2014. [The first named applicant] is certain she and her husband are the reason he was arrested.
·     Her mother told her they had been questioned about the whereabouts of [the first named applicant] and [the third named applicant].
·     She fears she will be arrested and tortured if she returns to Vietnam.
8 June 2014: Statutory Declaration of [the third named applicant]
[The third named applicant] states:
·     He left Vietnam because he was subjected to religious discrimination by the government. He grew up as a Catholic and was subject to ongoing discrimination.
·     He belongs to a church group called the “[Group 1]”.
·     He and his wife married in 2007 but the authorities refused to issue them a marriage certificate and family certificate because they are Catholics and members of the [Group 1] group. They managed to obtain these documents in 2012 with the assistance of a relative and paying a bribe.
·     On Christmas Eve 2012, he and his wife and two children were on their way to church. They were arrested and detained for one day and one night. The police did not give them a reason why they were arrested.
·     Incidents like this happened frequently and he was arrested five or six times.
·     In July 2011, the local police damaged the statue of Virgin Mary in their church. He and his wife attended a demonstration and were arrested and detained for several days.
·     In January 2013, the local police came to their house, trashed their furniture and killed their livestock. The police did not tell them why they did this but he and his wife know it is because they are Catholics and he is sure it had to do with them being members of the [Group 1] group. He got angry and tried to argue with the police and they beat him up.
·     They went to Vinh city to complain to the head of police but he refused to help them and said he could not intervene.
·     After this, they stayed with his wife’s mother for a while. They heard that some of the members of “[Group 1]” had been arrested and so he made arrangements to leave Vietnam because they thought he would be arrested.
·     [The first named applicant] followed in March 2013 when she could raise the money.
·     [the first named applicant]’s her mother and older brother were arrested and questioned about [the third named applicant]’s whereabouts. Her mother was released but her brother was detained until April 2014.
·     His mother in law said the police have returned a few times to ask about their whereabouts.
·     He fears he will be arrested and tortured if he returns to Vietnam.
24 February 2017: Statutory Declaration of [the first named applicant]
[The first named applicant] states:
·     In her 8 June 2014 Statutory Declaration she referred to fellow members of the [Group 1] group who had been arrested for protesting against the police for damaging the statute of the Virgin Mary.
·     While [the first named applicant] was in [Australian immigration] detention centre, her mother told her that two of her ([the first named applicant]’s) friends had been arrested and their families do not know what has happened to them.
·     Her mother also told her that the authorities accused members of the group of receiving money from the Viet Tan political party in America. Because of this, the authorities believe the youth group is associated with anti-government and anti-communist activities. This is not true.
·     Her daughter [the second named applicant] was born in [year] and the family continues to practice as Catholics.
·     If she returns to Vietnam, she will continue to practice her faith openly.
·     She will continue to protest the government’s suppression of Catholics.
·     She fears that if she returns to Vietnam, she will be identified as a member of the youth group and she will be imprisoned.
·     She believes the Vietnamese government will regard her as a traitor and will arrest and imprison her because she left Vietnam illegally.
·     Her husband’s personal details were released by the Australian government and she believes the Vietnamese authorities will have information about her and know she is in Australia.
·     The Vietnamese Secret Police came to [the Australian immigration] detention centre to interview Vietnamese people.
·     She fears for [the second named applicant] if she is forced to return to Vietnam. [The second named applicant] is entitled to Vietnamese citizenship but she has never been to Vietnam. [The first named applicant] is worried she will have difficulty getting national identity documents for [the second named applicant] and enrolling her in school because she was born in Australia and baptised a Catholic. She and her husband had difficulty obtaining documents in Vietnam because they are Catholic. She believes life will be difficult for [the second named applicant] in Vietnam because she has never been there and she will be harmed because she is a Catholic.
26 May 2017: Statutory Declaration of [the first named applicant]
[The first named applicant] states:
·     She has not previously disclosed all of her altercations with the police in Vietnam prior to her departure for Australia.
·     In around December 2012, the police came to their home and demanded money. [The third named applicant] paid them some money and they went away.
·     They were targeted for extortion because they are Catholics, their farm was doing relatively well and they were perceived to be wealthy because of their charity work with the [Group 1] group.
·     When the police came back in January 2013 and trashed the furniture and killed the livestock, this was an act of revenge because they asked for money again and [the first named applicant] and [the third named applicant] refused to pay. They could not afford to pay because they were not wealthy.
·     During this incident, [the first named applicant] was sexually assaulted by a police officer. Her husband tried to stop the assault but he was beaten when he tried to intervene.
·     When they reported the incident to the police in Vinh city, they told them about the sexual assault as well as the property damage. She believes the police did not investigate their complaint because they are Catholic.
·     After the altercation with the police, [the third named applicant] went to the south of Vietnam and was treated at a hospital for his injuries. [The first named applicant] did not seek medical attention. She was ashamed.
·     They left their locality and were mobile for a time, moving around to seek safety. They then lived with her mother in [Village 1] until they came to Australia.
·     After [the third named applicant] left Vietnam, the police came again to [the first named applicant]’s home in around February 2013. She was alone at the time with her children. She thinks the police knew her husband had left Vietnam illegally by boat because when they came to her home they asked her where he was. She did not want to tell them [the third named applicant] had left Vietnam illegally because that is a crime, so she said she did not know where he was. When she told the police this, they sexually assaulted her again.
·     She did not report this incident to the police. She told her mother and she was frightened to stay in Vietnam because she was alone with her children.
·     She was worried that if she stayed in Vietnam she would be assaulted again or even killed by local police officers.
·     She did not previously disclose that she was sexually assaulted twice because it is hard for her to talk about and she feels ashamed. She has seen a counsellor in Australia but she still finds it hard to talk about.
·     If she was forced to return to Vietnam, she would want to make a complaint to the police to ensure the police officer who harmed her is punished, but she is scared that if she does this she and her family will be harmed.
·     She is scared that [the second named applicant] will suffer the same sexual and physical abuse that she has suffered if she is forced to go back to Vietnam. She fears her daughter will be harmed by the authorities for being a Catholic.
26 May 2017: Statutory Declaration of [the third named applicant]
The substance of [the third named applicant]’s Statutory Declaration is in almost identical terms to that of [the first named applicant] of the same date with the following relevant differences:
·     After [the third named applicant] arrived in Australia, he spoke to his mother on the phone and she told him that [the first named applicant] had been sexually assaulted again by local police officers shortly after he left for Australia.
·     When he saw [the first named applicant] in Australia, she told him she had been sexually abused again after he left.
·     If he was forced to return to Vietnam, he would want to make a complaint to the police to ensure the police officer who harmed his wife and him and damaged their property is punished, but he is scared that if she does this he and his family will be harmed.
·     He is scared that he will be arrested at the airport for being a Catholic and because he departed Vietnam illegally.
·     He reiterates the same fears in respect of [the second named applicant] as [the first named applicant] does.
7 August 2017: Statutory Declaration of [the first named applicant] in response to adverse information put to her by the Department in writing following her TPV interview on 1 June 2017
[The first named applicant] states:
·     She believes she and her family were targeted because they are Catholics.
·     In around December 2012, the local authorities came to their home and demanded a bribe. They threated that if they did not pay a bribe, their land would be confiscated. They paid a bribe and the land was not confiscated.
·     The authorities came again in around January 2013 and demanded another bribe. In her entry interview when she said “we protested”, she meant they refused to pay a bribe. When they refused to pay the bribe on this occasion, she was sexually assaulted.
·     She did not feel comfortable disclosing the sexual assault and rape in her entry interview because she was ashamed and the interpreter was male.
·     In her written statement of 9 September 2013, she believes the new translation her lawyers have is more accurate than the translation the Department has.[3]
[3] This is considered in detail below.
·     The incident referred to in that statement is the rape after her husband left Vietnam.
·     After the incident, her husband’s parents somehow found out about it. She thinks the authorities might have told them. They don’t approve of her because of what happened. She is scared that if she goes back to Vietnam they will abuse her and try to break up her family and harm her.
·     She has trouble recalling exact dates that events occurred. The events all happened in a short period of time before she left Vietnam and were very traumatic for her.
31 August 2017: Statutory Declaration of [the third named applicant] made in response to adverse information put to him by the Department in writing following his TPV interview on 1 June 2017
[The third named applicant] states:
·     He was stressed and afraid at his entry interview and did not have legal assistance at that time.
·     At his entry interview he referred to the reasons he left Vietnam including due to being discriminated against as a Catholic and having problems with the authorities.
·     When he was asked if he only came to Australia for economic reasons he was confused.
·     When he said his family were not involved in any activities and protests against the government, this is because he did not consider the peaceful demonstration they participated in at the church as a protest or activity against the government. He participated in the peaceful protest by praying.
·     He did not consider his membership of [Group 1] to be an activity against the government, but the authorities believed his activity as part of the group was illegal.
·     He was targeted and harmed as a Catholic by the authorities in Vietnam, including his children not being able to attend school and he was prevented from going to church. He also referred in his entry interview to the delay in registration of his marriage.
·     He did not disclose in his entry interview that he had been targeted, extorted, beaten and had his property vandalised by the Vietnamese authorities because he was unsure what would happen to him and whether he would be allowed to stay in Australia. He was afraid of providing this information and being returned to Vietnam.
·     He believes that what he said in his entry interview is consistent with what he told the case officer in his protection visa interview and in his protection visa application.
5 November 2020: Written statement of [the first named applicant]
This written statement was made in support of [the first named applicant]’s SHEV application and gives a comprehensive overview of the procedural background to [the first named applicant]’s cases and in it she reiterates her claims. The Tribunal has only referred here to parts of the statement that are relevantly different to claims she has made previously or which provide additional relevant information.
[The first named applicant] states:
·     Her mental health has deteriorated over the past months and she sometimes forgets the exact dates that certain events occurred.
·     Her children in Vietnam live with her mother.
·     She and her husband belonged to the [Group 1] group which did activities like recycling goods, cooking for the poor and providing flowers for church services.
·     In around July 2011 or July 2012, she and her husband participated in protests against the destruction of church statues. The statue of the Virgin Mary at [Church 2] was destroyed. She and her husband were arrested and held for several days while they were interrogated.
·     In around December 2012, the police came to their house and demanded a bribe or their land would be confiscated. She believes they were targeted because they are Catholics, their farm was doing relatively well and they were perceived to be wealthy because of the charity work they did through the [Group 1] group.
·     On Christmas Eve 2012, her husband was arrested on the way to church. She and her children were not arrested and were told to go home.
·     Some time after her husband fled Vietnam, she moved back to their family home. She hoped she would be safe there. This is where she was raped by the police in around February 2013.
·     She finds it difficult to discuss being sexually assaulted, especially with males. She still feels ashamed. When she arrived in Australia and was asked why she fled Vietnam, she did not want to discuss being sexually assaulted and thought she should only provide a summary of the incidents that led to her departure from Vietnam. That is why some of the incidents she has discussed in this statement were not included in her initial statements and interviews.
·     When she fled Vietnam, she left her children with her mother.
·     She left Vietnam unlawfully and arrived in Australia unlawfully by boat.
·     She believes her brother was arrested because of her unlawful departure from Vietnam and the previous difficulties she and her husband had with the authorities.
·     She says that if she returned to Vietnam she does not know how she would survive. It would be hard for her to earn a living and she would be living in fear of attacks from the police. She does not think she could live safely with her mother.
·     The police have threatened her mother that if [the first named applicant] goes back to Vietnam her mother will not be able to see her again. They said they would detain her at the airport and put her in jail.
·     The government has been asking her children in Vietnam about their parents’ whereabouts and saying the children have no rights because their parents fled Vietnam.
·     Her husband has been asking her to visit a psychologist to help with her mental state but she finds it hard to talk about what happened and she only wants to be free and safe.
6 December 2021: written statement of [the first named applicant]

[The first named applicant] states:
·     Her husband has been diagnosed with cancer. He has been in hospital and is awaiting results. He has been unable to work. It has been a very stressful time.
·     She is working part-time a [Occupation 1] to support the family.
·     Her children in Vietnam had been living with her mother but they were questioned about the whereabouts of [the first named applicant] and [the third named applicant] so they went to live with [the third named applicant]’s parents. They were again questioned and so now they are living with [the first named applicant]’s brother.
·     Her mother continues to be asked by the authorities when [the first named applicant] will come home.
·     [The first named applicant]’s mental health is not good. She finds it difficult to remember past events and details. She is not seeing a counsellor because it is too hard to talk about what she has experienced.
·     Once or twice a year, when she can save some money, she tries to send money through friends to her church group, [Group 1], in Vietnam.
·     She continues to fear harm in Australia because she left Vietnam illegally and sought asylum in Australia.
·     She still opposes the Vietnamese government because of how they have treated her and how they treat Catholics. They suspect the [Group 1] group is connected to the Viet Tan political group.
·     She is afraid for [the second named applicant] and [the fourth named applicant] if they return to Vietnam because they have no paperwork and they are Catholic and because of [the second named applicant]’s gender.
24 February 2023: written statement of [the first named applicant]
[The first named applicant] states:
·     She is still working part-time as a [Occupation 1] to support her family.
·     Her husband has neck and nose cancer. In Vietnam he would not be able to access appropriate treatment.
·     Her children in Vietnam are still living with her brother in [City 1], Ha Tinh province.
·     Her family still attends church in Australia.
·     Her mental health is still not good. She has not been to the doctor because it is hard to talk about what she is feeling and she is busy working and looking after her family.
24 February 2023: written statement of [the third named applicant]
[The third named applicant] states:
·     In 2020, he was diagnosed with [cancer]. He has had chemotherapy and radiation therapy. He has been told the cancer responded well to treatment but could come back. He has check-ups with the doctor every three months.
·     He has not been able to work much because of the cancer.
·     He is still a practising Catholic and goes to church.
·     He is worried that [the second named applicant] won’t have access to the same standard of education in Vietnam.
·     He fears harm if he returns to Vietnam because he is a Catholic, he was involved in the [Group 1] group, his past experiences there and because he left Vietnam illegally and sought asylum in Australia.
·     He fears he will not be able to get the cancer treatment he needs in Vietnam because it is expensive and hard to access there.
In addition to their written statements and arrival interviews referred to above, [the first named applicant] and [the third named applicant] have each attended interviews with the Department in connection with their visa applications as follows:
· 1 June 2017: [The third named applicant]’s protection visa interview in respect of case number 1800558 and [the first named applicant]’s protection visa interview in respect of case number 1823926. [The first named applicant] and [the third named applicant] were interviewed consecutively by the same delegate.
· 7 December 2021: [The first named applicant]’s protection visa interview in respect of case number 2204343.
The Tribunal has listened to recordings of these interviews and, where relevant, refers to statements made by [the first named applicant] and [the third named applicant] during those interviews below.
According to the written submissions dated 24 and 27 February 2023 provided to the Tribunal on behalf of all the applicants prior to the Tribunal hearing, if [the first named applicant] returns to Vietnam, she fears harm due to being a Catholic and a member of the [Group 1] group; her imputed political opinion against the Vietnamese government; her involvement in a protest at their church; having made a complaint to the police; from her parents-in-law due to her sexual assault; as a failed asylum seeker who departed Vietnam illegally and has spent a prolonged time in Australia; as a person who was affected by a Departmental data breach; the arrest and detention of her mother and elder brother; because she continues to send funds to the [Group 1] group; and because of her gender and being a survivor of sexual assault in Vietnam.
According to the same written submissions dated 24 February 2023, if [the third named applicant] returns to Vietnam, he fears harm due to being a Catholic and a member of the [Group 1] group; his imputed political opinion against the Vietnamese government; his involvement in a protest at their church; having made a complaint to the police; as a failed asylum seeker who departed Vietnam illegally and has spent a prolonged time in Australia; as a person who was affected by a Departmental data breach; the arrest and detention of [the first named applicant]’s mother and elder brother; and he fears he will not be able to access appropriate health care and specifically cancer treatment, in Vietnam.
[The second named applicant]’s claims (case numbers 2204343, 1823926 and 1800558)
According to the written submissions dated 24 and 27 February 2023 provided to the Tribunal on behalf of all the applicants prior to the Tribunal hearing, if [the second named applicant] returns to Vietnam she fears harm due to being born outside Vietnam and not having Vietnamese documentation; she has been baptised as a Catholic; she is a girl and fears gender-based violence; and she would be returning to Vietnam having sought asylum in Australia.
[The third named applicant] also expressed the concern in the Tribunal hearing that [the second named applicant] will not be able to access the same standard of education in Vietnam.
[The fourth named applicant]’s claims (case number 2204344)
According to the written submissions dated 24 February 2023 provided to the Tribunal on behalf of all the applicants prior to the Tribunal hearing, if [the fourth named applicant] returns to Vietnam he fears harm due to being born outside Vietnam and not having Vietnamese documentation; he is a Catholic; and he would be returning to Vietnam having sought asylum in Australia.
[The fourth named applicant]’s claims are also articulated in a Statutory Declaration made on 29 March 2018 by [the first named applicant] on his behalf. In addition to [the fourth named applicant]’s claims set out above, [the first named applicant] claims:
·     [The fourth named applicant] will be persecuted and harmed by the Vietnamese authorities because the family are practising Catholics and are active with their church and church group in Vietnam;
·     [The fourth named applicant] will be denied Vietnamese identity documents if he returns to Vietnam because he was born in Australia, he is Catholic, the family is Catholic and they have sought asylum in Australia;
·     Even if he is not denied documentation, the authorities will delay issuing documents to him so he will not have the same opportunities as other Vietnamese children;
·     He will not be recognised as a Vietnamese citizen;
·     His parents’ details were leaked in the data breach and so the Vietnamese authorities know they have sought asylum and will think they are against the government and so [the fourth named applicant] will be harmed as the child of his parents;
·     His parents will be detained by the authorities and questioned and harmed if they return to Vietnam and his mother worries what would happen to him if this situation arose.
Documents before the Department and the Tribunal
The Tribunal has before it a large number of documents in respect of [the first named applicant] and [the second named applicant]’s cases (case numbers 1823926 and 2204343). These are contained in the Department files in relation to their TPV and SHEV applications and the Tribunal files in relation to both applications for review. In addition to the documents referred to above, the Tribunal has before it the following additional documents (non-exhaustive):
·     Vietnamese identity documents including household registration, marriage certificate and national identity card of [the first named applicant] with certified English translations;
·     Certified English translations of the Vietnamese birth certificates of [the first named applicant]’s two children in Vietnam, born [date] and [date] in [Hospital 1];
·     Certified copy of [the second named applicant]’s New South Wales birth certificate;
·     Original and English translation of Summonses dated [in] June 2013 to [the first named applicant]’s mother and brother requesting them to attend the Police of [Village 1] Commune, Vinh City, to “clarify several matters required”;
·     Baptism certificate of [the second named applicant] dated [in] January 2015;
·     Baptism certificate of [the fourth named applicant] dated [in] October 2018;
·     Letter of support in Vietnamese with English translation dated [in] December 2021 from the Roman Catholic Diocese of Vinh, [Parish 1], from the parish priest which states [the first named applicant] has a good Catholic family background, she was a good and enthusiastic parishioner in the parish association’s activities and she was a positive member of [Group 1 alias] and region;
·     Letter of support from [Fr. A] dated 23 December 2021 from [a Catholic Church in Australia], stating [the first named applicant] and [the third named applicant] regularly attend mass, their children attend the parish school and they are active members of the parish community which they joined in early 2019.
In respect of [the third named applicant]’s and [the second named applicant]’s case (case number 1800558), [the third named applicant] provided the following documents with his protection visa application:
·     Vietnamese identity card;
·     Marriage certificate;
·     Household registration forms.
[The fourth named applicant]’s representative provided a certified copy of his Australian (Victorian) birth certificate issued [in] March 2018 to the Department.
A letter of support from the Principal of [a] Primary School in [Suburb 1], NSW, dated 23 February 2023, was provided in relation to all applicants. The letter states that [the first named applicant] and her family have a genuine connection to the school and the wider community and the Principal supports [the second named applicant] and [the fourth named applicant] being able to continue to attend the school.
The delegate’s decision in relation to [the first named applicant]’s and [the second named applicant]’s TPV applications (case number 1823926)
On 14 December 2017, the delegate made a decision in relation to [the first named applicant]’s and [the second named applicant]’s TPV applications. In their decision, the delegate set out and considered [the first named applicant]’s claims contained in her Entry Interview on 18 May 2013, a written statement dated 9 September 2013, a written statement dated 8 June 2014, a written statement dated 24 February 2017, a further statement dated 26 May 2017 and [the first named applicant]’s post-interview submissions dated 15 June 2017. The delegate was satisfied that [the first named applicant] is a Catholic. The delegate was satisfied that [the first named applicant] was a low-key member of a group called [Group 1]. The delegate was not satisfied that [the first named applicant] attended a demonstration in 2011 or 2012 about a damaged statue or that she was detained and interrogated as a consequence. The delegate was not satisfied that [the first named applicant] was prevented by the authorities from attending Mass on Christmas Eve 2012 or that she was of interest to the authorities as a Catholic or a member of a Catholic group. The delegate accepted that [the first named applicant] and her husband initially had difficulty obtaining documents after their marriage but they obtained those documents in 2012.
The delegate noted that [the first named applicant]’s claim about being sexually assaulted and raped changed over time and the delegate had concerns about the credibility of aspects of her evidence around the claimed sexual assaults, where she was living at the time and why. The delegate accepted that [the first named applicant] was sexually assaulted once by police in late December 2012/early 2013 but the delegate did not accept that [the first named applicant] was raped by police in early 2013 after her husband had left Vietnam. The delegate accepted that something took place which may have prompted [the first named applicant] and her husband to think about leaving Vietnam, but the delegate was not able to say what this was and noted that [the first named applicant] had given various different reasons for what happened and why. The delegate noted that [the first named applicant] had given contradictory evidence about whether their family land was confiscated. The delegate accepted that [the first named applicant]’s house was vandalised and livestock killed in January 2013. The delegate considered country information about land confiscation, police brutality and bribery. The delegate did not accept that the police refused to investigate [the first named applicant]’s complaint after her and [the third named applicant]’s home was vandalised because they were Catholic, or that in fact, [the first named applicant] made a complaint to the police at all. The delegate accepted that [the first named applicant] and her husband paid a bribe to obtain official documents but not in relation to their land. The delegate was not satisfied that [the first named applicant] was of interest to the authorities as a Catholic and found that whatever the reason may have been for her brother’s detention, it had nothing to do with [the first named applicant]. The delegate found that [the first named applicant]’s children in Vietnam had been issued with birth certificates and found that they were not prevented from attending school. The delegate did not accept that [the first named applicant] being involved in the Departmental data breach put her at risk of harm. The delegate did not accept that [the first named applicant] faced a risk of harm as a failed asylum seeker who departed Vietnam illegally. The delegate did not accept that [the first named applicant] faced a real chance of serious harm as a Catholic or as a member of a Catholic group if she returned to Vietnam.
The delegate accepted that [the first named applicant] had been the victim of a sexual assault in Vietnam, but not because she was a Catholic. The delegate considered [the first named applicant] had not fully disclosed the reasons for this assault. The delegate found that [the first named applicant] could live safely at her mother’s place if she returned to Vietnam and she would not face a real risk of significant harm from the police or the authorities.
The delegate did not accept that [the second named applicant] would face a real chance of harm as a Catholic if she returned to Vietnam. The delegate saw no reason why [the second named applicant]’s citizenship would not be recognised or that she faces a real chance of harm because she lacks documents.
The delegate found that considering [the first named applicant]’s and [the second named applicant]’s claims individually and cumulatively, they were not persons in respect of whom Australia has protection obligations.
[The first named applicant] provided a copy of the delegate’s decision to the Tribunal.
The delegate’s decision in relation to [the third named applicant] and [the second named applicant]’s TPV application (case number 1800558)
On 14 December 2017, a delegate made a decision in respect of [the third named applicant] and [the second named applicant]’s TPV applications. In their decision, the delegate summarised the claims made by [the third named applicant] in his entry interview (8 May 2013), statement attached to his application for a protection visa (8 June 2014) and supplementary statement dated 26 May 2017. The delegate also noted that post interview submissions dated 31 August 2017 had been received.
The delegate said they found [the third named applicant] to be generally unforthcoming and many of his responses to be lacking in detail. The delegate noted that [the first named applicant] gave more detailed responses which lent credibility to [the third named applicant]’s claims and the delegate has made allowance for this. The delegate was satisfied that [the third named applicant] is Catholic. The delegate was satisfied that [the third named applicant] belonged to a group called [Group 1 alias] or [Group 1] and he was a low-key member. In relation to [the third named applicant]’s claim about attending a demonstration, the delegate was concerned about inconsistencies between [the third named applicant]’s evidence in the interview and country information about the damaging of a statue of the Virgin Mary, as well as differences with his written statement and his entry interview and changes in his evidence during the interview with the delegate. The delegate did not accept that [the third named applicant] attended a demonstration where a statue of the Virgin Mary was damaged by police in either 2011 or July 2012. In relation to [the third named applicant]’s claims of extortion by the local authorities, the delegate had concerns about [the third named applicant]’s inconsistent and vague accounts over time of when he was extorted, when he clashed with the police and when he moved to his mother-in-law’s house, how long he lived there and when he left. The delegate did not accept he was extorted by police in December 2012 or January 2013.
In relation to [the third named applicant]’s claim of being arrested on Christmas Eve 2012, the delegate found his evidence to be unconvincing, contradictory and vague and the delegate did not accept that he was arrested on Christmas Eve 2012 or at any other time due to his religious activities. The delegate accepted [the third named applicant] had experienced some difficulties obtaining marriage documents but found he did eventually obtain them. The delegate did not accept that the difficulty [the third named applicant] experienced was due to being Catholic. In relation to [the third named applicant]’s claim about the police visiting his house and he and his wife being harmed and their property vandalised, the delegate was concerned that [the third named applicant] had not raised this claim earlier and did not accept his explanation for this. The delegate was not satisfied that [the third named applicant] experienced serious harm because he is a Catholic or a member of the church group and was not satisfied that the police visited his home and damaged his property in January 2013 for these reasons. Based on [the first named applicant]’s testimony, the delegate accepted that the couple had a physical confrontation with the police sometime in early 2013 when she was sexually assaulted and [the third named applicant] was injured. The delegate found that this was a one-off event and [the third named applicant] had not fully disclosed the reasons for this event. The delegate did not accept that [the third named applicant] reported the incident with the police to the Vinh city police and that those police refused to help because he is Catholic. The delegate did not accept that [the third named applicant] left Vietnam when he heard that members of the church group were arrested because the delegate was not satisfied that he was a person of interest. The delegate considered that he had other, unknown, reasons for leaving Vietnam. The delegate was not satisfied that [the third named applicant]’s mother-in-law and brother-in-law were arrested and questioned about his whereabouts after [the third named applicant] left Vietnam. The delegate accepted that [the third named applicant] was affected by the data breach in 2014 because he was in immigration detention at that time. The delegate found that [the third named applicant] did not face a real chance of harm if he returned to Vietnam due to being a Catholic or as a member of the church group or as a failed asylum seeker.

In relation to [the second named applicant]’s claims, the delegate found that as a Catholic she would not face a real chance of harm. While settling into life in Vietnam may be a challenge for her, it would not amount to serious harm.
The delegate found that considering all their claims, [the third named applicant] and [the second named applicant] were not persons in respect of whom Australia has protection obligations.
The delegate’s decision in relation to [the first named applicant]’s and [the second named applicant]’s SHEV application (case number 2204343)
On 2 March 2022, a delegate made their decision in relation to [the first named applicant]’s and [the second named applicant]’s SHEV applications. In their decision, the delegate summarised the claims made by [the first named applicant] in her Entry Interview (18 May 2013), TPV application (28 February 2017), SHEV application (5 November 2020), updated statement (6 December 2021), interview (7 December 2021), post interview submissions and attached documents (23 December 2021) and response to adverse information put to [the first named applicant]. The delegate also summarised the previous delegate’s findings in relation to [the first named applicant]’s TPV application and the IAA decision. The delegate did not accept that [the first named applicant] is wanted by the authorities in Vietnam, or that they continue to make inquiries about her through her family in Vietnam, or that her mother and brother were arrested or detained by the Vietnamese authorities, or that her children in Vietnam were prevented from attending school. The delegate accepted that [the first named applicant] is a Catholic and she was involved in the [Group 1] church group but not that she drew the adverse attention of the authorities for this reason. The delegate did not accept that [the first named applicant] or her husband participated in a protest at [Church 2]. The delegate accepted that [the first named applicant] was sexually assaulted but not for the reasons or under the circumstances claimed by [the first named applicant], including her connection with the church group. The delegate did not accept she reported this to the police. The delegate did not accept that [the first named applicant] was harmed by her in-laws due to her sexual assault. The delegate accepted that [the first named applicant] and [the second named applicant] are practicing Catholics in Australia. In the absence of credible supporting evidence, the delegate did not accept that [the first named applicant] has been diagnosed or treated for any mental health conditions. The delegate found that [the first named applicant] had not expressed any anti-government sentiment or been politically active in Australia since her arrival. The delegate did not accept that [the first named applicant] owned or leased land which was confiscated by the government and did not accept that she was denied an ability to subsist by the Vietnamese government.
The delegate considered country information about the situation for women in Vietnam and found that if [the first named applicant] and [the second named applicant] potentially faced gender discrimination in Vietnam it would not amount to persecution. The delegate also found that [the first named applicant] has a supportive family in Vietnam and means to support herself and her family. The delegate considered country information on gender-based violence and found that there are laws in place to prosecute perpetrators and these laws are enforced. The delegate did not accept that [the first named applicant] was sexually assaulted for the reasons or under the circumstances she claimed. The delegate found she wound not be denied access to state protection or support services. The delegate found that [the first named applicant] and [the second named applicant] were ordinary Catholics and [the first named applicant] had not been involved in political activism in Vietnam and was not satisfied they would suffer persecution for reason of their faith if they returned to Vietnam. The delegate did not accept that a person with [the first named applicant]’s profile would face a real chance of harm as a returned failed asylum seeker if she returned to Vietnam, including due to having been affected by the data breach.
The delegate found that [the second named applicant] has Vietnamese nationality by birth. The delegate found that through an administrative process, [the second named applicant] can access social services and did not accept that she would be denied access for reason of being born in Australia.
The delegate found that considering [the first named applicant]’s and [the second named applicant]’s claims individually and cumulatively, they were not satisfied that they are persons in respect of whom Australia has protection obligations.
The delegate’s decision in relation to [the fourth named applicant]’s TPV application (case number 2204344)
On 3 March 2022, the delegate made their decision in respect of [the fourth named applicant]’s application. The delegate accepted that [the fourth named applicant] is baptised and a practising Catholic. The delegate considered country information about Vietnamese citizenship for children born overseas and found that [the fourth named applicant] has Vietnamese nationality by birth. The delegate also found that through an administrative registration process [the fourth named applicant]’s birth can be registered with the Vietnamese authorities and he can access social services. The delegate did not accept that [the fourth named applicant] would be denied social services due to being born in Australia. The delegate considered [the fourth named applicant]’s Catholic religion and country information about the treatment of Catholics in Vietnam and found that as an ordinary Catholic, he would not suffer persecution as a result of his faith. The delegate found that considering [the fourth named applicant]’s claims individually and cumulatively, he would not face a real chance of persecution if he returned to Vietnam now or in the reasonably foreseeable future. The delegate found that [the fourth named applicant] is not a person in respect of whom Australia has protection obligations.
IAA decision
The Tribunal has a copy of the decision of the IAA dated 23 July 2018 in which the decision-maker affirmed the delegate’s decision not to grant [the first named applicant] and [the second named applicant] visas. This decision was quashed by the Federal Circuit Court [in] September 2018. Accordingly, the Tribunal has given no weight to the IAA’s decision of findings in making its findings in this case.
Submissions filed by the applicants’ lawyers
Over the course of the applicants’ visa applications progressing through the Department and the Tribunal, their lawyers have filed a number of submissions which the Tribunal has considered and describes below.
Post-interview submissions dated 15 June 2017 following TPV interview – [the first named applicant] and [the second named applicant] (case number 1823926)
These extensive submissions were filed following the applicant’s TPV interview on 1 June 2017. It is submitted that while [the first named applicant]’s claims are confidential from her husband, the submissions are made in support of her claims for protection and should be read in conjunction with the submissions made for her husband. The submissions set out the reasons why [the first named applicant] and [the second named applicant] fear harm if they return to Vietnam and then go on to address various concerns raised by the delegate in the interview. The submissions address the delegate’s concern about [the first named applicant] being late in raising her claims to have been sexually assaulted. The submissions refer to research papers on the disclosure of sexual violence during the asylum seeker process, practical reasons which could account for [the first named applicant] not disclosing the assaults earlier and her explanation that she finds it difficult to talk about. It is submitted that no adverse credibility assessment should be made due to [the first named applicant]’s delayed disclosure. It is submitted that [the first named applicant]’s stated intention to pursue her complaints against the police if she returns to Vietnam increases her chance of harm from the authorities, including further assaults.
It is submitted that various inconsistencies in [the first named applicant]’s evidence and that of her husband, including where they lived prior to leaving Vietnam and for how long, should not lead to adverse credibility findings and a rejection of her claims. The submissions refer to several sources discussing the nature of memory and the impact of trauma on memory. The submissions go on to refer to country information about the treatment of Catholics in Vietnam and attempts by the Vietnamese government to restrict religious freedom and worship activities, particularly where the authorities consider a political element to be involved. The submissions refer to information from sources such as the United States Department of State (USDOS), the Australian Department of Foreign Affairs and Trade (DFAT), Human Rights Watch, Amnesty International, and it is submitted that [the first named applicant]’s involvement in the [Group 1] group and attendance at a protest means she was likely to have been imputed with an anti-government political opinion prior to her departure from Vietnam. It is submitted that the country information, along with the harm experienced by the applicant in the past and [the first named applicant]’s continued adherence to her religion, along with various other factors, means she is likely to perceived as anti-government and attract adverse attention from the authorities if she returns to Vietnam.
The submissions go on to refer to discrimination suffered by [the first named applicant] and her husband as Catholics. It is submitted that limitations [the second named applicant] would face in Vietnam, such as accessing documents, household registration and education, would amount to serious harm. The submissions refer to country information in support of this and it is submitted that a number of less serious violations may cumulatively amount to persecution. The submissions go on to refer to country information, including from DFAT and USDOS, about police brutality and impunity in Vietnam and it is submitted that with [the first named applicant]’s profile, the risk of her experiencing such persecution is more than remote. It is submitted that country information indicates that services available to victims of gender-based violence in Vietnam are limited, as are avenues for redress.
The submissions consider country information, including from DFAT, relating to the treatment of returnees and conditions for returnees. It is submitted that while the DFAT Report indicates that returnees having departed illegally are not at risk of harm upon their return, there are media reports of some prosecutions. The submissions refer to news articles from sources such as the Sydney Morning Herald and The Guardian which talk about some boats being intercepted at sea by the Australian Navy in the mid-2010s and forcibly returned to Vietnam. One report indicates that passengers were detained for questioning and then released. Another report refers to four people on board being convicted and jailed for organising the boat departure. It is submitted that with her profile, [the first named applicant] would easily be identifiable as a returned failed asylum-seeker and the sources cited demonstrate that some returnees are at risk of harm. It is submitted that based on [the first named applicant]’s anti-government profile, she faces a real risk of harm which is exacerbated by her being affected Department’s data breach. The submissions finish by setting out the relevant legal tests which the decision-maker needs to consider.
Post-interview submissions dated 15 June 2017 following TPV interview – [the third named applicant] and [the second named applicant] (case number 1800558)
These extensive submissions were filed following [the third named applicant]’s TPV interview on 1 June 2017. The submissions set out why [the third named applicant] fears harm if he returns to Vietnam, and go on to address concerns raised about [the third named applicant]’s case at the interview. It is submitted that while there are some minor inconsistencies in [the third named applicant]’s evidence about certain matters, they do not undermine the otherwise consistent and credible evidence he has given over time about the harm he experienced as a Catholic in Vietnam. The submissions include references to commentary and case law about the way in which decision-makers should approach concerns about the credibility of protection visa applicants, and the nature and purpose of the entry interview. It is submitted that an adverse credibility assessment should not be made on the basis of statements made by [the third named applicant] in his entry interview about why he left Vietnam and sought asylum in Australia.
The submissions go on to refer to country information about the treatment of Catholics in Vietnam, including the 2017 United States Commission on International Religious Freedom Report, a 2016 Human Rights Watch Report and the (then) current DFAT Report. It is submitted that [the third named applicant]’s profile as a Catholic and his involvement with the church group and protests mean he would be imputed with an anti-government opinion and would face a real risk of harm in Vietnam. It is submitted that this risk is exacerbated by other aspects of [the third named applicant]’s profile including having complained to the police about the assault on him and [the first named applicant] and the damage to their property, and his status as a failed asylum seeker. The submissions go on to refer to the discrimination claimed by [the third named applicant] as a Catholic such as difficulty obtaining documents and interference with his land, and the potential effect of this on his capacity to subsist in the future and that of [the second named applicant]. The submissions make reference to case law and reports from the Canadian Immigration and Refugee Board and the World Bank. It is submitted that this type of discrimination cumulatively amounts to persecution.
The submissions also refer to country information, including from DFAT and USDOS, about police brutality and impunity in Vietnam and it is submitted that with [the third named applicant]’s profile, the risk of him experiencing such persecution is more than remote. The submissions consider country information, including from DFAT, relating to the treatment of returnees and conditions for returnees, as well as news articles from sources such as the Sydney Morning Herald and The Guardian about conditions for returned asylum seekers. It is submitted that based on [the third named applicant]’s anti-government profile, he and his family face a real risk of harm which is exacerbated by him being affected Department’s data breach. The submissions finish by setting out the relevant legal tests which the decision-maker needs to consider.
Response to Department’s invitation to comment dated 7 August 2017- [the first named applicant] and [the second named applicant] (case number 1823926)
On 7 August 2017, the applicants’ lawyers responded to a letter from the Department inviting [the first named applicant] to respond to potentially adverse information arising from her Entry Interview. The Department’s letter dated 13 July 2017 refers to claims [the first named applicant] made in her Entry Interview that her families were farming and at the end of 2012 the local government confiscated the land and the applicant staged a protest. The letter states that this is inconsistent with [the first named applicant]’s claims in her application about why the police came to her house in December 2012. The letter also refers to [the first named applicant]’s claim made on 9 September 2013 about being raped at her mother’s place and states that this is inconsistent with claims made in her protection visa application and at her protection visa interview. [The first named applicant] was invited to comment on the information.
In response, [the first named applicant]’s lawyers refer to what she said in her Entry Interview and in her Departmental interview and statutory declaration and it is submitted that [the first named applicant]’s explanation about the authorities coming to her home and threatening to confiscate the land if they did not pay a bribe is consistent with what she said in her Entry Interview. It is also submitted that [the first named applicant] was told in her Entry Interview to be brief, and so this limited her ability to give a comprehensive account of what happened. It is submitted that the context in which the interview took place, with [the first named applicant] being traumatised by a boat journey to Australia and having no legal representation at the time, should be taken into account. It is also submitted that she has consistently claimed she and her family were targeted and threatened by the Vietnamese authorities because of their Catholic religion and her delay in disclosing her sexual assault is reasonable given the nature of her claims and the trauma she suffered. It is submitted [the first named applicant]’s evidence must be considered holistically and as she has become more aware of her rights as an asylum seeker she has provided more detailed evidence.
In relation to [the first named applicant]’s claim about being raped, as contained in her written statement dated 9 September 2013, it is submitted that she has provided an accredited translation which is different from the Department’s translation and the translation provided by the applicant is consistent with the oral and written claims she has made in her protection visa application. [The first named applicant] provided a statutory declaration dated 7 August 2017 explaining her statement[4] and it is submitted that her claims are credible and consistent.
[4] This is considered further by the Tribunal below.
Response to Department’s invitation to comment dated 31 August 2017 – [the third named applicant] and [the second named applicant] (case number 1800558)
On 31 August 2017, [the third named applicant]’s lawyers responded to a letter from the Department dated 4 August inviting [the third named applicant] to respond to potentially adverse information arising from his Entry Interview. The Department’s letter refers to claims [the third named applicant] made in his Entry Interview that he had only come to Australia for economic reasons, he said none of his family was involved in activities or protests against the government in Vietnam and the only adverse impact he claimed by the police or authorities on his day to day life was the difficulty he and his wife had in registering their marriage. [The third named applicant] was invited to comment on the information.

100. In response, [the third named applicant] submits that his statements have been taken out of context and misconstrued. It is submitted that [the third named applicant] also referred to being prevented from attending church as a Catholic and that in the entry interview he was confused and scared and did not have the benefit of legal advice. It is submitted that [the third named applicant]’s responses in his entry interview are consistent with the evidence provided in his protection visa application and what he said in the interview with the delegate about being targeted by the Vietnamese authorities due to his religion. In relation to [the third named applicant]’s involvement in protests, it is submitted that he did not equate his participation in a peaceful protest with demonstrating against the government. It is submitted that while [the third named applicant] gave the example of difficulty obtaining documents when asked about the impact of the police or authorities on his life, the subsequent examples he has given of this should not be regarded as inconsistent, particularly when he was not asked to elaborate in his entry interview. It is submitted that no adverse credibility findings should be made as a result of [the third named applicant]’s evidence in his entry interview. The submissions also refer to the purpose of the entry interview in support of [the third named applicant]’s position.

298. The Tribunal has considered [the first named applicant]’s claim that [the second named applicant] would face harm in Vietnam as a girl and her written submissions on this topic. The Tribunal discussed with [the first named applicant] the same country information as that referred to above about the situation for women in Vietnam and gender-based violence. As noted above, the country information indicates that although discrimination against women is banned by the Vietnamese Constitution, the situation for women in Vietnam is generally more difficult than for men with women having fewer economic, employment and education resources than men. However, the country information does not indicate that female children are denied an education. [the first named applicant] has given evidence that her daughter in Vietnam attends school and there is no reason to consider that [the second named applicant] would be prevented from obtaining an education in Vietnam. As for [the second named applicant]’s future economic and employment prospects, the Tribunal considers that to be speculative. The DFAT Report states that traditional views about family disadvantage women, with sons being preferred over daughters and sons carrying on the family name and traditions, although women can now legally inherit assets. Vietnam has family planning policies that theoretically restrict the number of children a woman can have but they are not strictly enforced and it is common for families to have more than two children. Further, there are few, if any, practical consequences for having more than two children and children would not be denied healthcare or education and their parents would not be punished.[65] The Tribunal finds that the country information, insofar as it may be relevant to [the second named applicant], does not indicate that she would face harm as a female child, or a female Catholic child. In the hearing, [the third named applicant] stated that [the second named applicant] is a good student and she would not receive the same standard of education in Vietnam as she does in Australia. He did not provide any evidence such as country information to support this and on this basis, the Tribunal is not satisfied that this would be the case and does not accept this claim.
[65] DFAT Report 3.73 – 3.74
299. In terms of [the first named applicant]’s concerns about [the second named applicant] suffering gender-based violence in Vietnam, as discussed above, violence against women, including rape, is against the law in Vietnam.[66] There is no evidence before the Tribunal to suggest that [the second named applicant] would be at risk of domestic violence from [the third named applicant] or her other relatives. As for the risk of sexual harassment or gender-based violence more generally, the Tribunal put to [the first named applicant] that country information such as the current DFAT Report and US Department of State Country Reports on Human Rights Practices: Vietnam do not indicate that this occurs in Vietnam to the level where the Tribunal would consider that [the second named applicant] faces a real chance of sexual harassment or sexual violence. In the Tribunal’s view, [the second named applicant] would be returning to Vietnam as part of a loving family with two parents and a sibling, and would be part of a broader extended family with two further siblings and other relatives. In all the circumstances, and based on the country information discussed above, the Tribunal does not accept that as a girl, or a Catholic girl, [the second named applicant] would face a real chance of serious harm if she returned to Vietnam in the reasonably foreseeable future.
[66] DFAT Report 3.75
300. The Tribunal has considered [the first named applicant]’s claim that [the second named applicant] and [the fourth named applicant] would face harm in Vietnam due to having sought asylum in Australia. The Tribunal notes that [the second named applicant] and [the fourth named applicant] were born in Australia and therefore did not depart Vietnam illegally, so their circumstances are different from those of their mother to that extent. The Tribunal discussed the same country information with [the first named applicant] about returned failed asylum seekers as referred to above in relation to her claims. The Tribunal put to [the first named applicant] that the country information does not indicate that [the second named applicant] and [the fourth named applicant], as children and people who did not depart Vietnam illegally, would be questioned on their return to Vietnam. As referred to above, the Tribunal noted that the DFAT Report states that being a failed asylum seeker is not generally stigmatised in Vietnam and further, DFAT is not aware of returnees being denied citizenship.[67] The Tribunal has found that [the first named applicant] and [the third named applicant] would not face a real chance of serious harm due to being a failed returned asylum seekers, and the Tribunal finds that based on the country information and their personal circumstances, [the second named applicant] and [the fourth named applicant] also would not face a real chance of serious harm as a people who have sought asylum if they returned to Vietnam in the reasonably foreseeable future.
[67] DFAT Report 5.34
301. In terms of the remaining claims made by [the first named applicant] in respect of [the fourth named applicant] in her Statutory Declaration made 29 March 2018, which have not already been dealt with above, she states that:
·     [the fourth named applicant] will be persecuted and harmed by the Vietnamese authorities and discriminated against because the family are practising Catholics and are active with their church and church group in Vietnam;
·     Even if he is not denied documentation, the authorities will delay issuing documents to him so he will not have the same opportunities as other Vietnamese children;
·     He will not be recognised as a Vietnamese citizen;
·     His parents’ details were leaked in the data breach and so the Vietnamese authorities know they have sought asylum and will think they are against the government and so [the fourth named applicant] will be harmed as the child of his parents;
·     His parents will be detained by the authorities and questioned and harmed if they return to Vietnam and his mother worries what would happen to him if this situation arose.
302. To the extent that these claims have not already been dealt with, the Tribunal will deal with them below. Further, even though these claims have been made in respect of [the fourth named applicant] the Tribunal’s reasoning applies equally to [the second named applicant] as another child of [the first named applicant] and [the third named applicant].
303. In terms of the claim that [the fourth named applicant] will be persecuted and harmed by the Vietnamese authorities and discriminated against because the family are practising Catholics and are active with their church and church group in Vietnam, the Tribunal has found above that [the first named applicant] and [the third named applicant] would not face a real chance of serious harm for this reason if they returned to Vietnam in the reasonably foreseeable future and on this basis, the Tribunal does not accept this claim and makes the same finding in respect of [the fourth named applicant].
304. In terms of the claims that even if [the fourth named applicant] is not denied Vietnamese identity documents, the authorities will delay issuing documents to him and so he will not have the same opportunities as other Vietnamese children, and he will not be recognised as a Vietnamese citizen, the Tribunal has already considered above and made findings in relation to the situation for obtaining documents in Australia and Vietnam for [the first named applicant]’s children. The Tribunal has also noted country information about failed returned asylum seekers which does not indicate that they are denied citizenship. For these reasons, and based on the Tribunal’s findings above, it does not accept this claim.
305. In terms of the claim that [the first named applicant]’s and [the third named applicant]’s details were leaked in the data breach and so the Vietnamese authorities know they have sought asylum and will think they are against the government and so [the fourth named applicant] will be harmed as the child of his parents, for the reasons explained above, the Tribunal has found that [the first named applicant] and [the third named applicant] would not face a real chance of serious harm as a result of being affected by the data breach if they returned to Vietnam in the reasonably foreseeable future and on this basis, the Tribunal does not accept this claim and finds that [the fourth named applicant] would not face a real chance of serious harm arising from these circumstances if he returned to Vietnam in the reasonably foreseeable future.
306. In terms of the claim that [the fourth named applicant]’s parents will be detained by the authorities and questioned and harmed if they return to Vietnam and [the first named applicant] worries what would happen to him if this situation arose, based on the Tribunal’s findings above about [the first named applicant] and [the third named applicant] not being of adverse interest to the authorities and not facing a real chance of serious harm if they return to Vietnam in the reasonably foreseeable future, the Tribunal does not accept this claim.
Do [the second named applicant] and [the fourth named applicant] satisfy the refugee criterion?
Cases number 1823926, 2204343 and 2204344
307. Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if [the second named applicant] or [the fourth named applicant] return to Vietnam now or in the foreseeable future that either of them faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
308. Accordingly, the Tribunal is not satisfied that [the second named applicant] or [the fourth named applicant] has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied that [the second named applicant] or [the fourth named applicant] has a well-founded fear of persecution, it is not satisfied that either of them meet the definition of refugee in s 5H(1). As [the second named applicant] and [the fourth named applicant] do not meet the definition in s 5H(1), the Tribunal is not satisfied that either of them is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Case number 1800558
309. Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if [the second named applicant] returns to Vietnam now or in the reasonably foreseeable future that she has a well-founded fear of persecution for a Convention reason, or for any other reason.
310. Accordingly, the Tribunal is not satisfied that [the second named applicant] has a well-founded fear of being persecuted for any of the reasons set out in the Refugees Convention, or for any other reason. As the Tribunal is not satisfied [the second named applicant] has a well-founded fear of persecution, it is not satisfied that [the second named applicant] meets the definition of refugee in Article 1A(2) of the Refugees Convention. As [the second named applicant] does not meet the definition of refugee, the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Do [the second named applicant] and [the fourth named applicant] meet the complementary protection criterion?
311. As the Tribunal has found that [the second named applicant] and [the fourth named applicant] do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether either of them meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
312. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[68] for the same reasons as those set out above, the Tribunal finds that [the second named applicant] and [the fourth named applicant] do not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the second named applicant] and [the fourth named applicant] being removed from Australia to Vietnam, there is a real risk that either of them will suffer significant harm. Therefore, the Tribunal is not satisfied that [the second named applicant] or [the fourth named applicant] are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
[68] MIAC v SZQRB [2013] FCAFC 33
Conclusion

For the reasons given above the Tribunal is not satisfied that any of the applicants in cases 2204343, 2204344, 1800558 and 1823926 is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISIONS

314. The Tribunal sets aside the decision in matter 2204343 to refuse the applicants Safe Haven Enterprise visas made on 2 March 2022, and substitutes it with a decision that the visa applications were not valid.
315. In respect of matter 1823926, the Tribunal affirms the decision not to grant the applicants protection visas.
316. In respect of matter 1800558, the Tribunal affirms the decision not to grant the applicants protection visas.
317. In respect of matter 2234344, the Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3097

24 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction