1825252 (Refugee)

1825252 (Refugee) [2019] AATA 4680 (3 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1825252
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Paul Windsor
DATE:3 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 03 May 2019 at 2:18pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Court remittal – religion – Christianity – church membership, leadership and activities – political opinion and activity – credibility – inconsistent evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 December 2014 to refuse to grant [the applicant] a Protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] applied for the visa on 25 June 2014. He claims to be a citizen of Vietnam of Kinh ethnicity who was born in Can Loc in Ha Tinh province Vietnam on [date]. He claims to be of the Catholic faith and to be unmarried. He arrived in Australia by boat (escorted to Darwin) as an Irregular Maritime Arrival [in] May 2013, was refused immigration clearance and has been in immigration detention since that time.
[The applicant] applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa. A summary of relevant applicable law is at Attachment A.
In his Protection visa application [the applicant] claimed that he left Vietnam because he feared his life was in Danger because of his activities for a Catholic Youth organisation protesting against the Vietnamese government’s actions against followers of the Catholic faith. He stated he feared the authorities would charge him with calling for people to fight against the authorities and he would be imprisoned because of his religious and political activities.
The delegate refused to grant the visa because he found [the applicant]’s claims relating to his political and religious activities lacked credibility. In reaching this conclusion, the delegate found, inter alia, that [the applicant]’s subsequent claims and evidence were inconsistent with statements made at his Entry Interview with the Department (held over two dates: 2 June 2013 and 11 October 2013). The delegate commented that he was not satisfied that the applicant is willing to provide a full and frank account of his true circumstances in Vietnam.
[The applicant] applied to the former Refugee Review Tribunal (RRT) for review of this decision on 24 December 2014. He provided the RRT with a copy of the delegate’s decision record.[1]
[1] See Tribunal file 1421237.
The RRT affirmed the decision on 12 June 2015. The Tribunal member also found [the applicant] was not a credible witness, drawing heavily on the delegate’s findings in this regard, including that [the applicant] initially provided false information when he arrived in Australia.
[The applicant] sought judicial review of this decision. [In] February 2016 the Federal Circuit Court of Australia (FCCA) remitted the matter to the Tribunal, finding that the Tribunal’s decision to refuse to adjourn the Tribunal hearing was legally unreasonable and consequently the Tribunal’s decision was affected by jurisdictional error.
On 28 July 2016 a second, differently constituted, Tribunal also affirmed the delegate’s decision. The Tribunal again referred to inconsistencies between [the applicant]’s evidence at his initial Entry Interview with the Department and his subsequent evidence as well as perceived delays in him putting forward a claim that he made a ‘political statement’ when police sought to arrest him and a claim that his father had been a member of the board/administration of his local parish. The second Tribunal considered that while [the applicant] may have amended earlier incorrect information he had provided in regard to his personal details, it found his willingness to provide what he subsequently confirmed was false evidence raises doubts about his credibility generally. The second Tribunal went on to find that [the applicant] was not a witness of truth.
[The applicant] sought judicial review of this decision [in] August 2016. The FCCA dismissed the application [in] August 2017.[2]
[2] See Tribunal file 1602829.
[The applicant] subsequently sought judicial review at the Federal Court of Australia (FCA) [in] August 2017. The FCA allowed the appeal [in] August 2018, finding that jurisdictional error had been established in relation to what [Judge A] described as the ‘Religious Claims Error’ (relating to the Tribunal’s finding that evidence had not been raised regarding [the applicant]’s father’s position on the board of a parish of a Catholic Church until after the first Tribunal hearing) and the ‘Political Statement Error’ (relating to the Tribunal’s finding that evidence had not been raised regarding [the applicant] having made a political statement to police who tried to arrest him in July 2012 until his hearing with the first Tribunal). [Judge A] found (and the noted the Minister conceded) these issues had been raised much earlier in the history of this case. [Judge A] comments in the Reasons for Judgement that the applicant had provided the claim regarding his father’s involvement on the parish religious executive board in a letter to the Department of 11 October 2013 (in the context of his Entry Interviews with the Department, and prior to his lodging a Protection visa application) where he wrote ‘By the trust of the Parishioners, in 2005 my father was appointed to work on the parish religious executive board for many years’. The Tribunal notes that this letter is not on the Departmental file and does not appear to have been considered by the delegate. [Judge A] went on to find that there were other irrational and illogical aspects to the Tribunal’s reasoning which undermined a claim that there was an independent (from the ‘Religious Claims’ and ‘Political Statement’ errors) basis for the general credibility findings.[3]
[3] [Source deleted].
[The applicant] appeared before the currently constituted Tribunal on 1 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
[The applicant] was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
A Statement of claims by [the applicant] was included with his Protection visa application.[4] His claims from this statement are summarised as follows:
[4] See folios 32-35 of the Departmental file.
·He joined a Catholic Youth organisation when he [age] years old. His latest role was as [office bearer] of the Young People’s Committee for the whole Parish of [Location 1], within the Diocese of Vinh.
·The group organised a lot of sacred ceremonies to pray for victims of persecution and arranged support for and visits to relatives and the victims themselves directly affected by the persecution.
·They also helped the poor.
·He witnessed a lot of wrong doing by a corrupt regime. The state is corrupt and imposes nepotism. They decide who goes to prison. They brutally assaulted and persecuted the religious people. He is a Catholic who respects freedom and witnesses his people being oppressed which causes him a lot of anger.
·His parents told him his uncle [was] a priest who had called for parishioners to help build the church. Because of that he was arrested and imprisoned for eight years.
·He and other religious people composed pamphlets and distributed them to call for people to fight for freedom of religion and freedom in other forms. They called for people to object to the corrupt state machinery, for example, the sale of the Spratly and Parcel Islands to the Chinese.
·They also organised several protests against the authorities’ blatant stealing and robbing of land which should belong to their church.
·He was summonsed many times to the police station. They asked what had he been doing and where had he been. Once he was told ‘Don’t think you Catholic people are one nation’. On many occasions he was threatened with imprisonment on the charge of trying to call for parishioners to object to the authorities.
·He erected banners and participated in protests, calling for solidarity to fight against persecution and oppression. For example, on 20 July 2009 in [Location 2], land was confiscated from the church. On 30 July 2009 they protested in his home town to show their anger and support for the victims. He prepared banners for this.
·They protested in response to the attack on the church in Con Cuong (in Nghe An province on 1 July 2012). Their banners and slogans said ‘we object to your violation of our Saints, your assault of our priests and parishioners in Con Cuong’.
·[In] July 2012 there was a holy service at the church in [Location 3], [Village 1]. He prepared banners for a protest to be held that day. During the day he was distributing pamphlets in front of the church. [Village 1] police found out what he was doing and sent police to arrest him. Many heard the disturbance and came to help him. He was lucky and was able to run away, but during the attempted arrest he was hit three times by the police with a baton to his right ribcage. He was taken back to the church of [Location 4] by a priest named [Father B] who took him under his wing and gave him medication and treatment for his injuries. He hid there until [December] 2012.
·[In] December 2012 his family told him police had sent a summons for him to attend the police station. He was scared he would be charged with calling for the people to fight against the authorities and imprisoned as he had been warned many times before, so he decided to flee.
·Some priests helped him to make his way to [Country 1] to hide. He stayed there for five months until he was able to get to [Country 2] and then to [Country 3] to catch a boat to Australia.
[The applicant] attended an interview with the delegate on 11 October 2014. While no reference is made to this in the delegate’s decision record, the Tribunal has listened to a recording of the interview and [the applicant] told the delegate at the interview that he made a political statement to police officers he claims tried to arrest him [in] July 2012, to the effect of ‘if you don’t like communism until you are 20 you don’t have a heart, but if you still like communism after you are 20 you don’t have a brain’ (the statement referred to in the FCA judgement).
[The applicant]’s then representative made a post-interview submission on 29 October 2014 indicating that [the applicant] had provided additional information following the interview.[5] Relevant additional matters raised in this submission are summarised as follows:
·[The applicant]’s father has been summonsed to attend the local police station three times. His father attended the first two times and was asked why his son has been away so long. He did not attend the third time as he was not in the area.
·[The applicant] will suffer persecution as a failed asylum seeker returnee if returned to Vietnam.
·[The applicant] has a sur-place claim due to the Departmental privacy breach in February 2014 (where details of immigration detainees were inadvertently released on the internet) and due to visits by Vietnamese authorities to Immigration Detention Centres (IDCs).
[5] See folios 69-76 of the Departmental file.
Included with the submission was:
- A copy of a summons, dated [December] 2012, for [the applicant];
- A copy of a summons for [the applicant]’s father, dated [September] 2014; and
- A Certificate of Religion for [the applicant].
Following the hearing with the first Tribunal [the applicant]’s then representative provided a submission dated 27 April 2015 which included a statutory declaration by [the applicant] dated 24 April 2015.[6] Relevant additional matters raised in [the applicant]’s statutory declaration are summarised as follows:
[6] See Tribunal file 1421237.
·He did not tell the truth at his Entry Interview on 2 June 2013 because he was scared, having just escaped from a dictatorship. He did not know how his information would be treated and was worried that harm would come to his family and the people of his church. He corrected the information when he was interviewed again on 11 Oct 2013. After this interview he wrote a statement to the Department to correct the record about why he was seeking refuge in Australia.
·When he went to the (first) hearing he did not know why his Protection visa application had been refused as he no longer had a funded representative and could not read the decision record because of his lack of English language. He felt afraid and disadvantaged.
·He is a devout Catholic as is his whole family. He has been Baptised and Confirmed.
·As he explained to the Department in Oct 2013, his father was appointed to the Parish religious executive board in 2005, and held this position for many years.
·As explained at his Protection visa interview, he aspired to be a priest and his uncle was imprisoned for eight years because he called for people to help build their local [Location 5] church.
·As [Location 5] church is small and does not have a priest, he also attended church at [Location 1] Parish which has about [number] parishioners and [number] regular church goers (about [number] km from his home) and at [Location 3] church at [Village 1] village (about [number] km from his home). In 2009, when he was [age], he joined the [Location 1] Catholic Youth group of which he became [office bearer] when he was [age] and he held this position until he fled Vietnam in December 2012. Since taking this role he had been summonsed many times which made him fearful but it had not become too serious.
·He fled because of an incident at [Location 3] Church [in] July 2012. He was handing out pamphlets outside the church when 10 police came to arrest him. As he explained when he was making his visa application, as well as in his Protection visa interview and again to the Tribunal, when the police were arresting him, he was angry and said to the police: ‘from your birth until you turn 20 if you don’t have a heart you can love your country but after 20 years if you still love this regime you don’t have brains’.
·He was lucky to run away without being caught by the police but was beaten in the chest with their batons. He was injured and fearful and went into hiding at [Location 4] Cathedral in Nghe An Province, about [number] km from his home. He stayed there for some months as he was in pain and recovering from his injuries. He hoped the [Village 1] police would not be able to trace him.
·His parents called on the evening of [date] December 2012 to tell him he was being summonsed to come to the station [the next day]. His father called him the next morning and he told his father he had decided to run away. He fled Vietnam by bus to [Country 1].
·He entered [Country 1] with his passport but believes the Vietnamese authorities would consider he left illegally as he had no permission for ongoing stay or residence in [Country 1]. Now they would know he had sought asylum in Australia.
·[In] September 2014 his father received a summons to report ‘to deal with the action of your son’.
·He is worried that his details were also provided to the Vietnamese officials (known to them as the A18, the most feared intelligence officials in Vietnam) and through the data/privacy breach. It is certain that the Vietnamese authorities would know he has sought asylum in Australia.
·He fears if he returns he will be imprisoned and mistreated, and if released his life will be impossible as he would be denied documents and services by his local authorities and they would not allow him to move to another area. He also worries that his family and church would suffer because of him.
[The applicant]’s current representative provided a submission dated 19 April 2019 prior to the hearing with the currently constituted Tribunal.[7] Relevant additional matters raised in this submission are summarised as follows:
·While in detention in Australia, [the applicant] has become an active user of social media to publish and share anti-Vietnamese Government material.
·[The applicant] faces an ongoing risk of harm at the hands of the authorities should he continue to protest government treatment of Catholics. Any further criticism is likely to draw severe adverse attention.
·Should he continue to protest the treatment of Catholics and other general oppression by the Vietnamese authorities, he also is at risk of harm from non-Catholic locals who are supporters of the regime.
·As per the findings of the High Court in Appellant S395/2002 [the applicant] should not be compelled to act discreetly and modify his appearance and profile to hide his Catholic views and political opinions to avoid serious harm.
[7] See folios 67-125 of Tribunal file 1825252.
Included with the submission was:
·A letter (with English translation) dated [April] 2019 from Father [B], former [Location 1] Parish Priest. The letter states [the applicant] was actively involved in the Parish youth work as [office bearer], was involved in prayer meetings and fought for justice and peace. It states [the applicant] was arrested and beaten by the police and the militia and his life was in danger and that he was brutally assaulted by the police [in] July 2012 during the Mass for Justice and Peace at [Location 3] Deanery. It states that later on [the applicant]’s parents were interrogated by the authorities on several occasions and comments that, to protect his life, thanks to some people, [the applicant] was able to flee the country to Australia.
·Copies of the Summonses (with English translations) for [the applicant] and his father, dated [December] 2012 and [September] 2014 respectively.
·Copies of 28 [social media] messages either posted or shared/liked and commented on by [the applicant] over the period from [August] 2013 until [June] 2018, which it is claimed are evidence of [the applicant]’s continued anti-government protest activity.
Findings and reasons
Applicant’s Identity
Noting the delegate’s findings in relation to this matter, the Tribunal accepts [the applicant] travelled to Australia by boat without a travel document but subsequently provided his birth certificate identifying his name and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that [the applicant] is a citizen of Vietnam and has assessed his claims against Vietnam as his country of nationality for Convention purposes and as his ‘receiving country’ for complementary protection purposes.

The issues in this review are whether [the applicant] faces a real chance of suffering treatment amounting to persecution involving serious harm from the Vietnamese authorities and/or their agents due to his Catholic faith and political opinion of opposition to the governing Communist Party of Vietnam (CPV); and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Clearly credibility is an important issue in this case. Adverse credibility findings were a significant feature of the delegate’s decision and the decisions by the first two Tribunals. The FCA was critical of credibility findings made by the second Tribunal. Accordingly, this Tribunal has given very careful consideration to credibility issues, as discussed below. In general, the Tribunal found [the applicant] to be a credible witness.
Assessment of claims
The Entry Interview
The Entry Interview document (Irregular Maritime Arrival & Induction Interview) indicates that Part 1 of the interview was held on 2 June 2013, two weeks after [the applicant] arrived in Australia [in] May 2013.[8] The document indicates that at the commencement of Part 2 of the interview on 11 October 2013, [the applicant] told the interviewing officer that previously he had given incorrect information, wanted to apologise for this and to correct all his personal information. The document indicates that [the applicant] stated that he lied to protect his family back in Vietnam. The FCA judgment by [Judge A] also indicates that the applicant provided the Department with a written statement correcting his account. This is not reflected in the Entry Interview document or in the delegate’s decision record. Corrections were made to the applicant’s personal details such as his date of birth, family composition and address (he initially had stated he was five years younger than he is, was an orphan and lived in an orphanage in Saigon), but changes do not appear to have been made to the reasons he gave for leaving Vietnam, which still refer to claimed events in Saigon (where he previously had claimed to live in an orphanage) rather than to events in his home area.
[8] See folios 123-133 of the Departmental file.
At the hearing the Tribunal asked [the applicant] why he initially decided to make up a different account of his circumstances in Vietnam. He said that initially he did not feel he could trust anyone he met so decided to conceal personal information regarding his family and where he was from because he was concerned both about his safety and about the safety of his family, relatives and others he was associated with. The Tribunal asked [the applicant] if anyone on the boat had told him he should not tell the truth to Australian authorities. He indicated that while no-one told him that directly the rumour on the boat was that they should not tell everything initially because they would not know who they could trust. The Tribunal queried [the applicant] whether anyone told him the process would be confidential. He said no-one told him how he should answer and commented that he was born in a communist country where he had learnt not to trust anyone and that is why he concealed the details of his background. He indicated that over time when he was in the immigration detention centre he observed how humanely the detainees were treated, and said that opened his eyes because he had never seen it before and he started to think that he could tell the truth about his circumstances. He indicated he provided a hand-written note to the Department correcting his account on the same day as the second part of the Entry Interview (on 11 October 2013) but had not kept a copy of this note.
The Tribunal finds that [the applicant]’s account is plausible and is consistent with the account provided by his then representative to the first Tribunal in her submission of 27 April 2015. The Tribunal finds that the Entry Interview documentation cannot be relied on to draw conclusions regarding [the applicant]’s credibility based on inconsistencies between what is written in the Entry Interview document and evidence he gave later. In this regard the Tribunal notes that the delegate and the previous two Tribunals did draw significant adverse conclusions on this basis (and because they did not have access to his statement of 11 October 2013 correcting the record about why he was seeking refuge in Australia).
Claimed risk of harm due to activities for a Catholic Youth organisation.
The Tribunal accepts that [the applicant] is a devout Catholic and that he was born into a family of devout Catholics. At the hearing he indicated that his father had been elected to the local parish executive committee in 2005, consistent with his previous evidence. He said as well as being on the executive board his father was responsible for the church choir. He said his father selected people to be members of the choir and organised the choir. The Tribunal asked [the applicant] if his father still has an official role with the church. He said his father is now part of a group that takes care of religious doctrine. He said his elder brother is a member of the Catholic Youth group and his younger brothers used to be members of the Children of the Virgin Mary group which supervises the religious activities of children up to 9 years of age.
The Tribunal asked [the applicant] about his claim that his uncle had been a priest and had been jailed for eight years. He said his uncle has now retired from the priesthood and lives with his brother in [the applicant]’s village. He indicated that he did not know when his uncle was jailed as it was before he was born and he was told about it by his parents when he was very young. He indicated he was told that his uncle had been raising funds to build the church in their village and was put in jail by the communist regime for this activity. He said it was a long time ago and that initially the church had been a simple timber and bamboo structure which had been replaced with a brick church before he was born.
The Tribunal asked [the applicant] why he joined the Catholic Youth organisation when he was [age] years old (in 2006). He indicated that it was something that was expected because he was born into a Catholic family and he didn’t really think about it. He said he had been educated and taught Catholic doctrine from a very young age and was a regular church-goer and that was necessary to become involved with the youth organisation. The Tribunal asked [the applicant] what he did as a member of the youth organisation. He indicated that they attended prayer sessions; did voluntary work such as visiting and assisting the sick, the lonely (such as widows) and the disabled; and engaged in fundraising activities to give gifts to those experiencing financial hardship or other difficulties. He added that they also went to give condolences to families where there had been a bereavement.
The Tribunal asked [the applicant] if he had aspired to serve the church in other ways. He said he had no particular plan but just tried his best to be involved in charity work. He commented that he learnt from the Bible that Saint Paul said belief without practising is a dead belief. When queried that some submissions indicated that he had thought about becoming a priest he said that sometimes he had thought about following in his uncle’s footsteps because he admires him and he finds the admiration the people have for their priests is really special. He added, however, that to be a priest it must be God’s idea, not his idea. When asked if he was saying that he did not feel he had been ‘called’ to be a priest he replied that up to that moment he had not had that feeling and added that there must be some magic and something very special.
The Tribunal found [the applicant]’s account of his religious background to be open and unaffected and accepts that he comes from a devout and active Catholic family and is an active and devout Catholic himself. The Tribunal accepts his evidence that his uncle was a priest who long ago had been imprisoned for his activities promoting the building of the local Catholic church, that his father was active on the local parish executive board and that [the applicant] was a member of the local Catholic Youth organisation.
The Tribunal asked [the applicant] about his claim to have been [office bearer] of his local Catholic Youth organisation since 2009 when he was [age] years of age. [The applicant] indicated he had been acting in the role for a couple of months because the incumbent was busy studying for exams and subsequently was officially elected to the role. He commented that he had decided not to go on to do university study. He said he was elected through a show of hands by other members of the youth organisation, supervised by the priests. He indicated there were about 500 other youth organisation members but only about 100 attended regularly and that was the group who voted for him. He said he did not nominate for the position but the previous [office bearer] was his friend. He said the role was not of the same importance as the Chairman’s role but he had been active in the group, had gained their trust and was ‘pointed-out’ by the Chairman. He indicated that no-one else nominated for the role. The Tribunal found [the applicant]’s account to be plausible and accepts that he became [office bearer] of his local Catholic Youth organisation in 2009. In this regard, the Tribunal also notes the letter of support of [April] 2019 provided by [the applicant]’s former parish priest, Father [B], indicating that [the applicant] was actively involved in the youth work of Vinh Parish from 2009 to 2012 as [office bearer].
The Tribunal asked [the applicant] about his dealings with the authorities after he assumed this role. He said they called him up to the police station many times. He said the first time was [in late] July 2009 when he was summonsed to attend the police station and interrogated. When asked why he was summonsed [the applicant] indicated it was in response to protest activity in relation to an incident at [a] church in [Location 2] where police had beaten up church goers [in] July 2009 because they had protested about the local government wanting to take over church land to build a war crimes museum. He said [in] July 2009 he and other members had created a banner protesting against the unjustifiable activity of the government in taking over the church’s land. [The applicant] said he was interrogated for about two hours about why they had done this, who they had been in contact with and who allowed him to do what he had done. He said he was not physically mistreated but was verbally abused and treated in a disrespectful way. He said they would question him, make him wait in an ante room and then return and question him again. Before they released him they warned him to be careful. Consistent with earlier evidence [the applicant] said he had been summonsed on five occasions and questioned in this fashion when he had reported on four occasions.
Noting that the delegate and previous Tribunals had drawn adverse inferences from [the applicant]’s claim that Vietnam had sold the Spratly and Parcel Islands to China (when there is no country information supporting this assertion), the Tribunal asked [the applicant] about protests regarding the Spratly and Parcel islands. He commented that they believe that since the collapse of the Soviet Union the Communist Party of Vietnam (CPV) feels it needs to align with the Chinese Communist Party and so the CPV gives up their ancestral territory to the Chinese. He indicated that they felt this was happening behind the scenes rather than in an overt way, to curry favour with the Chinese government, even though the people harbour resentment about China’s actions in and their suffering as a consequence of the 1979 border war between China and Vietnam. He commented that they believe absolutely that the CPV will sacrifice their people and territory to maintain the regime by becoming allies with their former enemy. The Tribunal found this explanation helpful in clarifying why [the applicant] indicated they had protested about this issue and accepts that this may have been a focus for protest action.
The [July] 2012 protest is central to [the applicant]’s claims as it is the reason why he claims he decided to leave Vietnam. [The applicant] said the dispute in Con Cuong had been going on for some time. He indicated there had been no church in Con Coung, only some land where just the church bell remained standing, so the local people had built a chapel at a private residence. He said when the priests came to do a holy ceremony, the authorities sent police to crush them, alleging that the priests and Catholic community members were unlawfully doing propaganda. He said [in] July 2012 the police and army came and beat up the church goers, destroyed everything on the altar and forcibly dispersed the people. [The applicant] said that [in mid] July 2012 the priest in charge of the whole province issue a declaration that all members of the community should come together to pray in relation to this incident. He said there were 26 deaneries involved in the protest action covering hundreds of parishes.
The Tribunal asked [the applicant] what he was doing when the police came on the day of the protest. He said he had prepared the banners and placards which were displayed in front of the church and was handing out pamphlets. He said there were 5-7 big banners about four and half metres long that were hung on the gate and between poles across the road leading to the church, and placards about 60 x 40 cm on stakes in the ground leading to the church. He indicated the banners and placards had messages protesting against the crushing and beating-up of Catholic worshippers at Con Cuong, that they object to the disrespecting of their saints (which he said referred to the smashing of a statue of the Virgin Mary at Con Cuong) and calling on people to protest against the persecution of Catholic believers. He indicated the placards said freedom of religious practice is a right.
[The applicant] indicated that when he saw the police approaching initially he did not think they were coming for him but when it became clear they were he started to run towards the church trying to escape. He indicated that they caught him in the church garden, pulled him down and stared to beat him up by hitting him in the ribs with a rubber baton. He said he was lucky as there were many worshippers there following the prayers and they came to assist him, pushed the police off him and blocked the police while he ran away. He indicated that he looked back and said something to the police, to the effect of ‘from when you are born until 20 you don’t love communism you don’t have a heart, but if you still love communism after 20 you don’t have a brain’.
The Tribunal expressed surprise both that [the applicant] would have been able to escape from 10 police who were seeking to arrest him and that, having been freed from the police through the intervention of other parishioners, he would have turned and made a political statement rather than simply fleeing while he had the opportunity to do so. Noting [Judge A]’s comments indicating that the political statement, in various permutations, has been around for a long time and has been attributed/misattributed to various historical figures, the Tribunal asked [the applicant] where he first heard that slogan. [The applicant] indicated that after he ran he was not sure how many of the police had followed and caught him and pinned him to the ground. He said he had run into the church garden area and there were many parishioners there who had finished praying and come outside the church and indicated that their number was such they were able to pull the police off him and prevent the police from pursuing him further while he ran around to the back of the church where he saw a car and his priest opened a door for him and they drove away. In relation to the political statement, [the applicant] indicated he made the statement because he had been born and raised under a communist regime and had been brainwashed (he commented that at school they were promised a Utopia but found it is brain-washing) but he realised that he had been duped and was being abused. He said the statement just appeared in his mind and it was not something he had heard before. The Tribunal has some concerns regarding this account. On balance, the Tribunal accepts that [the applicant] was active that day in his role as [office bearer] of a youth group in preparing and putting up banners and placards and handling out pamphlets. The Tribunal accepts that it is plausible that police came towards him to question him about what he was doing and he fled, causing police to pursue him, catch him and force him to the ground and beat him with a rubber baton. The Tribunal accepts that it is plausible that a large number of parishioners, seeing this, intervened, enabling [the applicant] to escape. In reaching these conclusions the Tribunal has had regard to reporting on the Con Cuong incident and aftermath indicating that there were widespread protests [in] July 2015 in response to ‘violent local government-backed attacks on a church’ in rural Con Cuong [in] July 2012 and that tens of thousands of Catholics gathered to demand an end to the ongoing persecution by the local government despite armoured vehicles and riot police despatched to contain the protest.[9]
[9] [Sources deleted].

Noting [the applicant]’s comments that he had not heard the political statement before and it just came to him, the Tribunal doubts that [the applicant] made the claimed (and well-known) political statement, especially in the context of the particular incident he has described, where, as the Tribunal put to him, it might be expected that his focus would be on getting away safely to avoid arrest and a further beating, rather than making a political statement. Notwithstanding this concern, the Tribunal accepts that after this incident [the applicant] fled to the church at [Location 4], some [number] km from his home. While it is not possible to say one way or the other (given the country information regarding the prevalence of document fraud in Vietnam) whether the copies of summonses provided by [the applicant] are genuine, the Tribunal accepts that it is plausible that he was summonsed to appear before his local police [in] December 2012, nearly five and a half months after the incident [in] July 2012. The Tribunal also accepts that it is plausible that this summons was the catalyst for [the applicant] deciding to flee Vietnam, because he feared that if he attended his local police station [in] December 2012 he would be mistreated and possibly imprisoned. In this regard the Tribunal notes the delegate’s concerns that [the applicant] indicated that he had a valid passport from 2008 and had used this to travel to [Country 2] on two occasions previously, so could have fled Vietnam at any time. While this is the case, the Tribunal accepts [the applicant]’s evidence that he did not consider the situation he confronted was serious enough for him to want to flee Vietnam until after the incident of [in] July 2012. The Tribunal has also considered that [the applicant] was able to depart Vietnam to [Country 1] using this passport, despite claiming to have been summonsed to appear at his local police station. Clearly this indicates he was not on a ‘blacklist’ that prevented him from traveling. While this suggests the police interest in him was not particularly high level (as does the delay of five and a half months after the events of [July] 2012 before a summons was issued, and the delay of a further twenty one months before his father was summonsed to explain his son’s whereabouts), the Tribunal finds these matters do not indicate the claimed events did not occur or that [the applicant] did not fear that he would be detained, interrogated, physically mistreated and possibly imprisoned if he attended the police station as requested.
Claimed risk of harm due to anti-government posts on social media.
[The applicant]’s current representative has provided the Tribunal with copies of 28 [social media] posts made and/or messages shared and commented on by [the applicant], since August 2013. At the hearing the representative indicated that these are a small cross section of hundreds of anti-government messages that [the applicant] has posted on [social media] since he arrived in Australia. He indicated that some of the messages that are shared are from the Viet Tan, an organisation that has been branded a terrorist organisation by the government. The Tribunal notes that a UK Home Office Policy and Information Note indicates that ‘The Opposition group Viet Tan are still in operation but are based outside of Vietnam and are viewed as a terrorist organisation by the government’.[10]
[10] UK Home Office, Country Policy and Information Note, Vietnam: Opposition to the State, September 2018, section 2.4.2.
The Tribunal asked [the applicant] about his social media activity. He commented that the Vietnamese government is being very harsh on those who post messages that are critical of the Government. He said the CPV’s ideology is atheist and they do not recognise any God or saints but put their party highest. He said how can they freely practise and spread their religion within that regime, commenting that if he only goes to church and prays and is not concerned about anything else, then he wouldn’t have needed to come to Australia. [The applicant] said that because he has shared articles from the Viet Tan there is a significant risk he would be arrested if he returned to Vietnam. He also commented that in other posts he has encouraged people to rise up and has also posted messages including images of the old Vietnamese flag which is not recognised by the current government. He said he also posted an article he wrote denouncing the person who brought communism into Vietnam.
In considering [the applicant]’s circumstances the Tribunal has had regard to the following information, drawn from the current DFAT Country Information Report and discussed with [the applicant] at the hearing:[11]
[11] DFAT Country Information Report, Vietnam, 21 June 2017, sections 2.3-2.7, 2.25, 2.28-2.30, 3.6-3.13, 3.20- 3.29 and 3.31.
General
·     Vietnam has an estimated population of 93.4 million (47.2 million females and 46.2 million males) and a total of 54 ethnic groups, of which the majority ‘Viet’ or ‘Kinh’ make up approximately 86 per cent of the population.
·     The South China Sea dispute continues to be a sensitive issue in 2017 between Vietnam and China, as well as (to varying extents) the Philippines, Malaysia, Taiwan and Brunei; all claiming sovereignty over various overlapping parts of the area, including rights to fishing areas; exploration of crude oil and natural gas, and potentially the control of significant shipping lanes. Major protests occurred in 2014, in response to China’s placement of an oil rig in Vietnamese-claimed waters, and more sporadically in 2015 and 2016. The protests are primarily targeted at China, but in some cases may include underlying messages aimed at the Government’s action, or perceived inaction, with regard to South China Sea disputes.
Catholic Religion
· Article 24 of the Constitution states that all people have the right to freedom of belief and religion, and have the right to follow any religion or to follow no religion. In addition, all religions are equal before the law; the State respects and protects freedom of belief; and ‘no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the laws’. However, as with political opinion, these rights are conditional. The Penal Code 1999 establishes penalties for practices that, in the Government’s view, undermine peace, national independence and unity. The Government’s routine application of these laws in practice leads to limits on religious freedom, particularly with regard to unregistered organisations.
·     Roman Catholics constitute seven percent of Vietnam’s total population (approximately 6.7 million) and Catholicism is one of 14 distinct religions that hold full government recognition and registration. Catholics are present across most districts, provinces and cities, with a strong presence in central Vietnam: Nghe An, Ha Tinh and Quang Binh, which have approximately 500,000 followers according to the Catholic Church in Vietnam.
·     The situation for Catholics has continued to improve in recent years, especially in Hanoi and Ho Chi Minh city; however, there are still constraints relating to registration of new churches. In August 2015, the Government approved the establishment of the Vietnamese Catholic Institute, the first faith-based educational institution in Vietnam able to grant Bachelor and Masters degrees. The Institute officially opened in September 2016 initially offering a Masters theological course to 23 selected priests from dioceses within the country.
·     DFAT has observed that Catholics are able to practise freely at registered churches and that Bibles and other religious texts are readily available in cities and towns.
·     In Nghe An province, which is one of three provinces that constitutes the Diocese of Vinh, credible contacts reported a slight improvement compared to previous years due to the increasing strength of the Catholic community and leadership. Local and provincial authorities reportedly continued to harass and forcibly close known house churches; however, in-country contacts reported an increase in registered churches with the exception of a few in ethnic minority dominated areas.
·     DFAT assesses that religious observance and practice only becomes an issue when it is perceived to challenge the authority or interests of the CPV and its policies.
Political Protest
·     Article 4 of Vietnam’s Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, with very few formal avenues for political participation.
·     Vietnam’s Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration; however, these are restricted by a number of ‘national security’ provisions within Vietnamese law. In practice, the Government does not tolerate political expression against the CPV, the Government or its policies.
·     Protest activity does occur, often linked to land use and compulsory acquisition of land by the Government. All land is formally owned by the Government, which issues land use rights to individuals or organisations, but retains the right to acquire the land for a broad range of purposes at any time. Disputes over land use rights can lead to protests and occasional violence.
·     On 9 June 2016 the European Parliament adopted resolution 2016/2755(RSP) on Vietnam that called upon the Government to put an immediate stop to all harassment, intimidation, and persecution of human rights, social and environmental activists. It insisted that ‘the government respect these activists’ right to peaceful protest and release anyone still wrongfully held’.
·     The Government has used specific laws to curb dissent, such as Article 79 of the Penal Code (‘overthrowing the State’), Article 88 (‘conducting propaganda against the State’) and Article 258 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’), all of which in practice take precedence over constitutionally enshrined rights. These offences carry penalties ranging from prison sentences of between six months and 20 years; to life imprisonment or capital punishment. DFAT is not aware of any recent cases of the death penalty being applied for political activities.
· DFAT is aware of at least 19 reported convictions of political/human rights activists in 2016. The convictions resulted in a total of more than 70 years in prison for the abovementioned offences, as well as the use of Article 245 of the Penal Code (‘causing public disorder’) and Article 87 (‘undermining national unity’)
·     Increased suppression of political activism generally coincides with high-level events, such as the lead up to the National Party Congress, National Assembly Elections, and with other significant issues affecting the country, such as the South China Sea disputed territories and the mass fish death crisis in April 2016.
·     Political and human rights activists who openly criticise the Government, the CPV and its policies are at high risk of attracting adverse attention from authorities; however, the treatment from authorities generally depends on the individual’s level of involvement.
·     DFAT assesses that individuals who are known to authorities as active organisers or leaders of political opposition are at high risk of being subject to intrusive surveillance, detention, arrest and prosecution. DFAT is aware of large numbers of credible reports of prominent political and human rights activists, as well as former political prisoners of conscience, being monitored, prevented from leaving their homes and/or attending meetings and events. They have also reportedly been subjected to widespread physical and psychological harassment, which in most cases has not been the subject of credible police investigations.
·     Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities. Credible in-country contacts stated that actively protesting against land confiscation, human rights issues or the government’s handling of issues will result in protests being shut down, police intimidation and harassment.
·     DFAT assesses low-level protesters and supporters often feel intimidated by police presence, and are sometimes detained and released the same day by authorities. There have been a few reported cases of uniformed and plain-clothes officers using violence to break up protests in 2016, such as beating protesters with batons to disperse crowds.
Social Media
·     Blogs and social media platforms are widely available in Vietnam; Facebook and Instagram are popular amongst citizens as a means of sharing information and organising public events.
·     An increasingly vocal and organised civil society began to develop from 2007 onwards, primarily using social media and internet forums to foster and discuss political issues. In response to this, the Government increased its suppression of media in 2008, resulting in arrests and prosecutions of several journalists, bloggers and pro-democracy activists. Decree 72 was introduced in 2013 to manage the provision and use of Internet services and online information, making it an offence to discuss and share any political dissent.
·     Facebook was sporadically blocked in 2016, most notably during the protests over the mass fish death crisis relating to the Formosa steel plant toxic spill. Individual accounts of high profile activists have reportedly been disabled at various times.
·     Vietnam gained new powers to limit the use of the internet in July 2013, following the introduction of Decree 72 on the ‘supervision, provision and use of internet services and online data’. The decree, which came into effect on 1 September 2014, prohibits a broad range of activities, including ‘opposing the Socialist Republic of Vietnam’ and ‘disturbing national unity’. It also requires operators of social networks to cooperate with authorities in tracking down people who violate the decree. Freedom House’s Freedom on the Net 2016 reported that ‘at least 15 bloggers and activists were still jailed at the end of 2015’.
While the country information cited above indicates that the situation for Catholics has continued to improve in recent years, including in [the applicant]’s home area in the Diocese of Vinh, the Tribunal notes DFATs assessment that religious observance and practice can become an issue when it is perceived to challenge the authority or interests of the CPV and its policies. In this regard and in light of [the applicant]’s activities in Australia posting and sharing messages on social media critical of the CPV, the Tribunal notes DFAT’s assessment that Individuals and groups who protest against the Government or openly criticise the CPV are likely to attract adverse attention from authorities, including police intimidation and harassment. The Tribunal also notes that new powers have been introduced to limit the use of the internet, prohibiting a broad range of activities including ‘opposing the Socialist Republic of Vietnam’ and ‘disturbing national unity’ and requiring operators of social networks to cooperate with authorities in tracking down people who violate the decree, and that Freedom House reported that ‘at least 15 bloggers and activists were still jailed at the end of 2015’.
The Tribunal found [the applicant]’s evidence regarding his attitude towards the CPV to be genuine and heartfelt. The Tribunal acknowledges that should he be returned to Vietnam it is likely that he would continue to engage in protest activity against the policies and actions of the CPV, including by posting and sharing anti-CPV material and comments on social media. Considering [the applicant]’s circumstances cumulatively and the relevant country information, the Tribunal finds that it cannot assess that the chance that [the applicant] would suffer serious harm in Vietnam as a consequence of his protest activity against the CPV, driven by his religious beliefs and his political opinions, is remote. Accordingly, the Tribunal finds that there is a real chance that [the applicant] would suffer persecution involving serious harm due to his religion and his political opinions, should he return to Vietnam.
The Tribunal is satisfied that the real chance of serious harm [the applicant] will face if he returns to Vietnam will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. The Tribunal finds that the essential and significant reason for the serious harm [the applicant] faces is his Catholic religion and his political opinion of opposition to the CPV.
Availability of State protection
As the harm that [the applicant] fears is from state agents (the CPV and Vietnamese authorities), the Tribunal finds that State protection is not available to him.
Relocation
In the circumstances of this case, where the harm feared is from state actors and individuals who are aligned with the ruling party, the Tribunal finds that [the applicant] cannot remove the real risk of serious harm he faces by relocating to another area of Vietnam away from his home area in Ha Tinh province.
For the reasons given above, the Tribunal is satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Paul Windsor
Member

ATTACHMENT A Relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a child who has not turned 18 years of age.

[2019] AATA 4680

3 May 2019

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