1828161 (Refugee)

1828161 (Refugee) [2022] AATA 980 (21 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828161
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jessica Henderson
DATE:21 February 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 21 February 2022 at 3:46pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – family members killed or sentenced to hard labour because of associations with former South Vietnamese government – family’s forced relocation, escape attempts and separation – parents’ and sister’s illegal departure – applicant’s arrests and beatings and attempts to avoid attention from authorities – forthright and compelling witness despite some incomplete or inconsistent evidence – passage of time and mental health – delay in applying for protection – application for permanent working visa refused and delays in review processes – country information – specific vulnerabilities and real chance of coming to attention of authorities – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas on 16 June 2017. The delegate refused to grant the visas on the basis that the delegate did not accept that the primary applicant would be targeted and arrested if he returned to Vietnam and was unable to be satisfied that the applicant would suffer persecution for reasons relating to his political association with the Republic of Vietnam. The delegate gave weight to the delay of 11 years between the primary applicant’s arrival in Australia and his application for a protection visa in considering the genuineness and depth of the applicant’s subjective fear of persecution.
BACKGROUND
The primary applicant’s passport shows that he was born in Vietnam on [Date].
The second applicant’s passport shows that she was born in Vietnam on [Date]. The first and second applicant are married to each other, and the Tribunal has been provided with a copy of their marriage certificate and a certified translation. Their two oldest children (the third and fourth applicants) were born to them in Vietnam on [dates] respectively.
The applicants travelled to Australia in 2006. The primary visa applicant held, at that time, a subclass 457 visa.
The applicants’ protection visa applications were filed on 16 June 2017. The delay between their arrival in Australia and their seeking protection is considerable and is the subject of consideration below.
The primary applicant’s third child with his wife was born in Australia on [Date]. That child has become an Australian citizen and is not a party to this appeal to the Tribunal.
The primary applicant applied for a protection visa on 22 June 2017.
CLAIMS AND EVIDENCE
Evidence before the Department
On his protection visa application, the primary applicant said that he had left Vietnam to “escape political persecution from the authorities of the current Vietnamese government.” He stated that if he returned to Vietnam he would “be captured by authorities and generally harassed…”. In answer to whether he thought he would be harmed if he returned to Vietnam he said:
I am likely to be detained by the government authorities eventually and experience harassment and cruel treatment in detention because of my familys (sic) strong record of working with the party opposed to the communist party. The Vietnamese communist party do not want opposition and there is no free speech in Vietnam against the communist party. Many people go to prison if they speak out against the communist party.
On 12 December 2017 the primary applicant provided the Department with a statutory declaration setting out the history of his residences.
By letter dated 22 December 2017 the primary applicant’s migration agent provided submissions to the Department (2017 Submissions). The Initial Submissions submitted that the Applicant has a well-founded fear of persecution as a result of his membership of a particular social group, being a member of a family with strong ties to the former non-communist South Vietnamese ruling regime (Former Regime).
By letter dated 1 February 2017 (an error as it was sent on 1 February 2018 and referred to the 2017 submissions), the primary applicant’s migration agent provided further submissions (2018 submissions). The 2018 Submissions included a submission that the applicant feared periods of arbitrary detention or harassment, such as he had previously experienced.
The matter was listed for hearing on 18 October 2021 at 9.30am. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. In the course of that hearing an issue arose with the translator. Enquiries were made, but no other translator was available to continue the hearing on that date, and as a matter of procedural fairness the Tribunal adjourned the hearing to a later date.
The matter was relisted before the Tribunal on 10 November 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The primary and secondary applicants appeared before the Tribunal and were represented at the hearing by [Mr A], instructed by [Migration agency].
It became apparent to the Tribunal during the second hearing that there were some unusual features of the primary applicant’s behaviour, speech pattern, and responses to questions. The Tribunal enquired as to whether the primary applicant had been treated for any mental health issue and provided time for the primary applicant to obtain and submit medical evidence to the Tribunal.
On 2 December 2021 the Tribunal received written evidence about the primary applicant’s mental health from his treating general practitioner. That evidence and the supporting submissions to which it was attached (2021 Submissions) are dealt with below.
On 11 January 2022 DFAT published updated Country Information for Vietnam.
The matter was relisted before the Tribunal on 3 February 2022 to deal with matters arising from the further evidence filed by the primary applicant and the update to the Country Information. Prior to that hearing the Tribunal received further submissions (2022 Submissions) and supporting documents from the applicants, which are dealt with below.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
A family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act. However, this is subject to s 5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:
(a) 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) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s 5J(1)(a) (race, religion, nationality, membership of a particular social group, or political opinion) will not have a well-founded fear of being persecuted within the meaning of s 5J.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the primary applicant has a well-founded fear of persecution because of his family’s connection with the Republic of Vietnam and/or escape attempts from Vietnam. If the Tribunal decides that issue in the negative, then the issue will be whether there are substantial grounds for believing that as a necessary and foreseeable consequence of removal from Australia there is a real risk that the primary applicant will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Nationality
The Tribunal is satisfied of the primary applicant’s Vietnamese nationality. The primary applicant has provided his passport and secondary identification documents and there is no suggestion that they are not genuine. The delegate was satisfied of the primary applicant’s identity. For the same reasons, the Tribunal is satisfied of the second through fourth named applicants’ Vietnamese nationality.
Family history to 1989
The primary applicant claims that his father, his paternal great-uncle and his grandfather worked for the Republic of Vietnam. He says that his father worked with the investigation police for the Republic of Vietnam.
The primary applicant claims that his grandfather was killed in 1968 by the Vietnamese Communist Party because of his association with the Republic of Vietnam, and that his father was detained and sentenced to hard labour in 1975 because of his affiliation with the Republic of Vietnam. As a result of his father’s involvement with the Republic of Vietnam he says that he and his family were sent to live in the New Economic Zone (NEZ), from which there were multiple attempts to escape.
The delegate found the primary applicant’s testimony at interview in relation to his father and grandfather’s work in Vietnam ‘plausible and credible and generally consistent with his written statements.’ The delegate accepted that the applicant’s father worked for and was associated with the former Republic of Vietnam and was sentenced to hard labour and time in detention. The delegate also accepted that the applicant’s grandfather ‘may’ have been involved with the former Republic of Vietnam.
The Tribunal has had the benefit of the primary applicant’s father’s Refugee Status Review Board (Board) decision dated [1994]. By that decision the primary applicant’s father, mother and youngest sister were determined to be refugees because the primary applicant’s father “has shown he has a well-founded fear of being persecuted by reason of his membership of a particular social group if he were to return to live in Vietnam”. Importantly, the Board noted that “whilst it is appreciated that much of what has been advanced by the Applicant may not be susceptible of proof the account which has been laid before the Board is found to be credible”.
The account which was laid before the Board included the following submissions:
a.The primary applicant’s grandfather served in the ARVN between 1955 and 1965 when he was discharged wounded. He then earned his living as [an Occupation 1] and joined the Nationalist Party, becoming secretary of the local hamlet. He was executed by the Communist Party in 1968 after his hamlet came under their control.
b.In 1967 the primary applicant’s father was elected the vice chairman of the hamlet and became responsible for the security in the area. He had the power to detain anyone who was suspected of co-operating with the Communist Party. He was at one time responsible for interrogating suspected Communists.
c.Just prior to the Communist takeover in 1975 the primary applicant’s father and family travelled to Da Nang. Once the Communists took control they ordered their return to their home village. The primary applicant’s father destroyed all documents relating to his police service, but he was identified as a former Nationalist police officer and sent to 6 months re-education. He was then subject to periods of unpaid labour between 1975 and 1977, and in 1977 the family was sent to live in the NEZ. There were further periods of unpaid labour.
d.In 1979 a cadre was killed in the area. The primary applicant’s father was detained for 15 days and interrogated.
e.In June 1980 the primary applicant’s father attempted to escape from the NEZ. The whole family was arrested, including the primary applicant (who was then [Age] years old). Only the primary applicant’s father remained in detention for a significant period of time; he was held in a forced labour camp for 11 months and 11 days. He was subsequently required to report to the authorities on a regular basis.
f.The primary applicant’s two aunts escaped from Vietnam, and the primary applicant’s father was held responsible by the authorities. The primary applicant’s father was accused of not having adequate control of his family members, who were traitors. He was required to write a self-criticism and perform 2 months unpaid labour.
Those submissions, which were accepted as credible by the Board, corroborate important aspects of the primary applicant’s family history.
The Tribunal finds that:
a.The primary applicant’s grandfather was an employee of the Nationalist Party, and was executed by the Communist Party in 1968.
b.The primary applicant’s father was a police officer for the Nationalist Party. From 1975 to 1989 he was subject to regular periods of unpaid labour, and in 1977 he and his family were sent to the NEZ.
c.The primary applicant’s father repeatedly tried to escape the NEZ, and was punished for the failed attempts.
d.The primary applicant’s aunts escaped Vietnam and the primary applicant’s father was punished for their escape.
The Tribunal also accepts that the primary applicant’s grandfather was a person who held an enforcement role in the former regime sufficiently significant to lead to his execution by the later regime.
Personal history from 1989
The primary applicant’s father’s submissions to the Board were completely silent on the separation of the primary applicant from his family in 1989. There is no doubt on the available evidence that the primary applicant was one of ‘the children’ referred to in the submissions to the Board. There is no doubt that he was still in Vietnam at the time that his father’s application for protection was being dealt with in Australia. The silence as to the date and manner of separation is therefore curious. It is not a matter that the primary applicant can speak to, and his father was not available for questioning by the Tribunal.
The Tribunal does not draw any adverse conclusions about discrepancies or lacunae between the primary applicant’s account and his father’s application. It is reasonable to suppose that, whilst his account to the Board may have been convincing and credible, the primary applicant’s father may not have been full and frank in his coverage of his past for a reason or reasons unknown.
The primary applicant described the separation from his family in the following terms in his 2017 statutory declaration:
16. In or about 1989, parents, my sister and I, tried to escape the NEZ. We tried to escape by boat to reach Hong Kong.
17. Due to stormy weather, we had to stop on an island near China and we lost the boat. The Chinese people sent us back to Vietnam.
18. When we arrived back in Vietnam, we went into hiding but we were separated.
19. At that time, we did not have a house or belongings because the Communists had taken away our house and land and we were separated because we had no place where we could stay altogether as a family.
10. I went to Phu Yen and stayed with my two elder sisters who were both already married while [my sister Ms A] and my parents went to Saigon.
The primary applicant’s account is verified by the statutory declaration of his sister, who was present for those events.
The Tribunal finds that the primary applicant was separated from his family in 1989 after a failed attempt to escape the NEZ and Vietnam, and that he did not see his parents again until his arrival in Australia. The primary applicant was around [Age] at the time of separation.

After the separation, the primary applicant says that he went to stay with his older sisters in Phu Yen. He says that he was arrested and beaten by the authorities from the Communist Party on more than one occasion.
He recalls being asked by the authorities about where his father was during the beatings but he was unable to provide that information to the authorities because he didn’t have it.
In 1991 the primary applicant became involved with a girlfriend who bore him two children – his eldest [child] was born in [Year] and his [other child] was born in [Year]. The primary applicant did not mention these children until the Tribunal specifically questioned him about the full extent of his family. During the first Tribunal hearing the primary applicant appeared to be uncertain about whether the scope of the Tribunal’s questions included his first relationship and his oldest [child], who he says he has not seen since some time in the early 1990s. When the second hearing commenced, the primary applicant apologised to the Tribunal for a further omission and told the Tribunal he had also had [another child] with the same girlfriend. That [child] had died in 2013, an event which the primary applicant clearly still found very difficult to talk about.
The circumstances in which the primary applicant separated from his girlfriend and their two children are not entirely clear to the Tribunal. The primary applicant described being ‘hunted’ by ‘guerrillas’, and of running away with shots being fired after him. He indicated that after his ‘escape’ his children were safer with their mother without his making any contact with them.
The primary applicant says that he was arrested and detained overnight on a further occasion, but he cannot recall when this occurred. He says that he recalls being asked about the location of his father.
The primary applicant says that he subsequently moved around to avoid further questioning and started staying in rural areas where he was unknown.
The primary applicant’s account of his experiences prior to meeting his wife appeared to the Tribunal to be genuine in the sense that he was telling the truth and trying to assist the Tribunal. However, the Tribunal has some concerns that the primary applicant’s perception of events is muddled and incomplete.
The Tribunal found the primary applicant to be a forthright and compelling witness, and notes that its view of the primary applicant’s credibility is consistent with that of the delegate.
The primary applicant accepted that his evidence at the second hearing before the Tribunal had been much more detailed than information that he had previously submitted and stated that “[a]nything to do with what happened in Vietnam was terrifying for me”.[1] That statement must be read in the context of a firm finding by the primary applicant’s general practitioner that he suffers from anxiety, depression and panic attack disorder, as well as PTSD.[2]
[1] Statutory Declaration of the primary applicant dated 17 January 2022 at [2]
[2] Letter from the primary applicant’s GP, [Dr B], dated 22 November 2021
The Tribunal accepts the evidence of his general practitioner that the primary applicant suffers from severe PTSD with anxiety, depression and panic attack disorder and considers this a reasonable explanation for the primary applicant’s lack of clarity in his recollection of the events which his general practitioner says caused his PTSD. The primary applicant’s general practitioner states that he has treated the applicants for a number of years, and that he has been aware of and treating the primary applicant’s PTSD for some time.
In the absence of any evidence to the contrary, the Tribunal finds that the primary applicant was arrested and beaten by authorities on two occasions, and that on both occasions he was asked questions about the location of his father. The Tribunal finds that the primary applicant eluded authorities on a third occasion by running away when they came to his door, and that the authorities discharged firearms without causing any injury to the primary applicant.
In 1996 the primary applicant says, and the Tribunal accepts, that he settled in [Location], where he met his wife who comes from a similar background to the primary applicant. He says, and the Tribunal accepts, that he was able to make contact with his sister in Australia through mutual friends, and she encouraged him to learn trades and skills that would be suitable for obtaining visas to other countries.
The primary applicant subsequently trained as [an Occupation 2] and worked at [Company 1] from 2003-2006. The primary applicant says, and the Tribunal accepts, that the facility that he worked at was a private company located in Saigon.[3] He says, and the Tribunal accepts, that he moved there alone, and that he worked hard to avoid attracting attention to himself, including limiting visits to his wife and children so that he only saw them every six months. He says, and the Tribunal accepts, that he did not talk to many people, and he didn’t interact with anyone other than his work colleagues, to avoid drawing government attention.
[3] It is consistent with the Country Info at 3.46 that the private sector is creating avenues of employment for the descendants of Saigon government employees – p25
The Tribunal accepts that the primary applicant evaded the attention of the authorities during this period by significantly modifying his lifestyle for the primary purpose of avoiding attention.
The primary applicant says, and the Tribunal accepts, that his sister [Ms A] helped him to find a job as [a related Occupation] in Australia, and on 5 October 2006 he was granted a 457 visa.
The primary applicant’s police clearance certificate as translated, dated 1 December 2016, indicates that the primary applicant did not have any criminal convictions as of that date.
The primary applicant says that he was stopped at the airport when he attempted to leave Vietnam and asked about where he was going. When he replied that he was going to Australia to visit his parents and sister his passport was confiscated, and he was left alone in a room. The primary applicant says that he was released just in time to catch his flight – he claims that this was because he had ‘a legal reason’ for going to Australia.
The Tribunal accepts the primary applicant’s evidence and finds that an attempt was made by at least one official to prevent the primary applicant from departing Vietnam.
The primary applicant arrived in Australia [in] October 2006 and has not returned to Vietnam since that date. The primary applicant says that he has had contact with his sisters in Vietnam and they are not being harassed by the authorities. The primary applicant believes that this is because they are considered to be under the care and responsibility of their husbands, whose families are not associated with the Republic.
The primary applicant’s explanation that they may have been absorbed into their husband’s families is reasonably consistent with the 2022 Country Information[4], and the Tribunal accepts that there is a real chance that it is the correct explanation.
[4] See 3.73 of the Country Information for Vietnam to the effect that sons and men carry on the family name and tradition to the extent that there are still ‘missing girls’ and unnaturally high numbers of male births.
Delay in making application
On 23 August 2017 the primary applicant provided a letter in support of his application to change the conditions of his bridging visa to permit him to work (August 2017 letter). Page 4 of that letter set out the history of the primary applicant’s application and reviews in the following terms:
[The Primary Applicant] was granted a Temporary Business Entry (Long Stay)(subclass 457) visa on 5 October 2006. The validity period of the visa was from 5 October 2006 – 5 October 2010. The sponsoring/nominating company was [Company 2].
The Primary Applicant arrived in Australia in 2006 with his family and resided in Australia in accordance with the conditions of the visa. The Applicant obtained advice regarding options for permanent residency and was advised that the sponsoring/nominating company was able to nominate the Applicant and his family for permanent residency under the Employer Nomination Scheme (ENS). As the Primary Applicant and his family held a working visa at the time, continuing to be sponsored by the sponsoring company was a better option than lodging an application for protection visa.
The applications made under the Employer Nomination Scheme (ENS) were not successful, and since that time the Applicants have been in the process of reviewing the decisions. There was a considerable amount of waiting time and the timeline of this process was as follows:
2009
·     On 29 June 2009, the sponsoring/ nominating company, namely [Company 2], nominated the Primary Applicant for Permanent Residence under the Employer Nomination Scheme (ENS).
2010
·     On 17 June 2010 the Applicants lodged the application for the Employer Nomination Scheme (BW 856) visa.
2012
·     On 12 April 2012 the Employer Nomination Scheme (BW 856) visa application was refused.
·     On 8 May 2012 the AAT acknowledged the application for review.
2014
·     [In] May 2014 – Migration Review Tribunal – AAT – the Tribunal affirmed decision to refuse of the Employer Nomination Scheme (BW 856) visas.
·     [In] June 2014 the Applicant’s filed an application for judicial review with the Federal Circuit Court of Australia.
2015
·     On 20 September 2015 the Applicants submitted a letter to the Minister for Immigration and Border Protection requesting ministerial intervention under section 351 of the Migration Act 195.
2017
·     On 12 May 2017, outcome of request for Ministerial Intervention under section 351 of the Migration Act 1958. The Assistant Minister has personally considered this request and has decided that it would not be in the public interest to intervene
The Tribunal asked the primary applicant during the second hearing why he did not make an application for protection when he first arrived in Australia. The primary applicant said that he obtained advice from a migration agent and followed it. The migration agent thought it was better for him to seek permanent residency through his employment, so that’s what the primary applicant did. The primary applicant was clear that he had told his agent that he was afraid of returning to Vietnam, and that he was advised to pursue a 457 visa.
The primary applicant has subsequently changed agents, and no evidence was before the Tribunal as to why a migration agent in 2006 advised the primary applicant against seeking protection once he had arrived in Australia. The current agents for the primary applicant submit that it is relevant that the primary applicant’s sister was assisting him to apply for a student visa. Her own experience of obtaining refugee status in Australia was that it required fleeing to Hong Kong by boat and being interviewed by the Refugee Processing Centre in Hong Kong.
The other submission pressed by the primary applicant’s agent is that in 2006 a refugee visa might have had a longer processing time than a 457 visa. The primary applicant’s agents submit that the primary applicant would have been eligible at that time for both a 457 visa and a refugee visa and that it would have been reasonable for the primary applicant to believe, in all of the circumstances, that a 457 visa would provide a more direct and timely means of entering Australia.
The Tribunal accepts that submission to the extent that no adverse inference is drawn because of the primary applicant’s failure to apply for a protection visa until he had exhausted other avenues of remaining in Australia. The Tribunal found the primary applicant a credible witness and accepts his assertion that he relied on the professional advice of his then migration agent about how best to remain in Australia.
Future harm
The Tribunal has accepted that the primary applicant is being honest to the best of his ability about his history. The Tribunal has also accepted that the elapse of time and trauma have interfered with the accuracy of the primary applicant’s recollections.
The Tribunal finds that the primary applicant has been a person of interest to the Communist regime since his childhood, and that he has periodically been arrested and beaten.
Given that the primary applicant’s sisters (and other female relatives in Vietnam) were not persecuted in the 1990s when he was persecuted, it is not reasonable or logical to assess his future risk by reference to their current experiences. Their experiences have not been comparable to his experiences in the past and there is no basis for concluding that their experiences would be comparable to his in the future.
The Tribunal has no doubt that the primary applicant’s fear of returning to Vietnam is both real, and crippling. His grief at his son’s death in 2013 and his inability to return for the funeral because of his extreme fear of the authorities appeared authentic and the Tribunal finds that the primary applicant is genuinely too afraid to return to Vietnam, even for his son’s funeral.
The Country Information suggests that returnees may be questioned for several hours on their return to Vietnam and that they may face problems obtaining household registration.[5] The Tribunal is satisfied that the primary applicant will come to the attention of the authorities on his return to Vietnam. There is a real chance that the primary applicant will respond to such questioning in a way that gives rise to an impression of guilt, resulting in further detention and further questioning. That conclusion is based on the Tribunal’s own observation of the primary applicant giving evidence, and the effect of his anxiety and PTSD on his presentation of his history.
[5] Country Information for Vietnam (11 January 2022) 5.29-5.32
The primary applicant has been the victim of persecution in the past. He says, and the Tribunal accepts, that this is a result of his father and grandfather’s involvement in the former regime. The Tribunal does not share the delegate’s view that the quick release of the primary applicant on each of these occasions indicates that he was not really a person of interest to the authorities.
The Tribunal is satisfied that the primary applicant has been a victim of persecution and that it is for the essential and significant reason that he is a male descendant of enforcement employees of the former regime who have, in his grandfather’s case, been executed or have, in his father’s case, successfully eluded the authorities and departed the country illegally.
In the circumstances, the Tribunal finds that there is a real chance that the primary applicant will be arrested and questioned to a significant extent on his return to Vietnam, perhaps more than once.
Such questioning, whilst unpleasant, would not necessarily rise to the level of persecution, and the Tribunal turns to the specific vulnerabilities of the primary applicant.
Applicant’s mental health
The primary applicant did not raise any mental health issues prior to or at the second hearing before the Tribunal.
The Tribunal noted at the second hearing that the primary applicant displayed alternating detachment and extreme emotional responses. The Tribunal is satisfied that the primary applicant’s demonstrations were genuine. The Tribunal provided an opportunity for the primary applicant to consult his general practitioner and consider providing medical evidence to the Tribunal.
The Tribunal now has before it a letter from [Dr B] who certifies that he is the primary visa applicant’s treating general practitioner of long-standing. [Dr B] indicates that he has known the primary applicant to suffer from PTSD for a long time, and notes that there is associated anxiety, depression and panic attack disorder. He says that the primary applicant experiences frequent panic attacks, nightmares and flashbacks. [Dr B] reports that the primary applicant requires ongoing medical treatment and counselling.
The Tribunal has regard to Country Information to the effect that “(f)eelings of guilt, shame and weakness inhibit the Vietnamese from admitting mental health problems and can delay treatment, as sick family members are commonly hidden or confined within the household for as long as they can be tolerated.”[6] A review published in the International Journal of Mental Health Systems in 2013 reported a tendency in Vietnam and amongst Vietnamese people in Australia and Canada to not speak openly about depressive symptoms. It reported that “[t]he Vietnamese tended to interpret the overt expression of depression symptoms (negative emotions) as a sign of immaturity or weakness of character, and in general were less accepting of the expression of emotions (Craig D: Familiar Medicine: Everyday Health Knowledge and Practice in Today's Vietnam. 2002, Honolulu: University of Hawaii Press).”[7]
[6] Nguyen, Anne, “Cultural and Social Attitudes Towards Mental Illness in Ho Chi Minh City, Vietnam”, Stanford Undergraduate Research Journal, 2003, CISLIB17805
[7] Niemi, M., Målqvist, M., Giang, K.B. et al. A narrative review of factors influencing detection and treatment of depression in Vietnam. Int J Ment Health Syst 7, 15 (2013). >
It appears to be accepted in the literature that there is a stigma associated with mental health disorders in Vietnam, such that the Tribunal does not draw an adverse conclusion from the primary applicant’s failure to rely upon his diagnosis of PTSD in respect of this application.
It appeared to the Tribunal during the hearing that the primary applicant was struggling to cope with being questioned by an authority figure, even in the relatively safe environment of the Tribunal.
The nature of the primary applicant’s mental health condition renders him peculiarly vulnerable to detention and interview. There is a real chance that he will demonstrate either unnatural detachment or excessive emotion in response to such interest from the government. Either might reasonably be interpreted as sufficiently unusual to warrant further investigation.
The primary applicant’s treating general practitioner considers the primary applicant to be “at a high risk of mental health decline” if he returns to Vietnam, because of his PTSD and associated conditions. Significant mental health decline would comprise serious harm.
The Tribunal finds that there is a real chance that the primary applicant will suffer serious harm if he returns to Vietnam.
Conclusion
The Tribunal has considered the cumulative effect of the above matters and finds that the primary applicant is a person to whom Australia has protection obligations for the purposes of s.36(2)(a).
The primary applicant is a member of a discrete social group comprising male descendants of both:
a.a person who held an enforcement role in the former regime sufficiently significant to lead to their execution by the later regime; and
b.a person who escaped Vietnam unlawfully and successfully sought protection overseas.
There is a real chance that the primary applicant will be interviewed and detained on his return to Vietnam, and repeatedly in the future whenever he comes to the attention of the authorities.
There is a real chance that such interview and detention will result in the primary applicant having a significant decline in his mental health, including his PTSD and anxiety. There is a real chance that that, in turn, will result in increased interest from the authorities in Vietnam, leading to more significant detention and more significant questioning.
The Applicant does not have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa).

Sections 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 reg 1.12 of the Regulations to include a spouse and a dependent child.
At the time of the visa application in 2017, the third and fourth applicants were dependent on their parents. They were enrolled in school, were not employed, and were financially supported by their parents.
The Tribunal notes that at the time of the refusal decision the delegate accepted that the adult children were members of the same family unit. The Tribunal accepts the first applicant’s oral evidence and the third and fourth applicant’s written evidence that they remain substantially reliant on the primary applicant for financial support and housing.
The Tribunal is satisfied that the second through fourth named applicants are members of the same family unit as the primary applicant for the purposes of s.36(2)(b)(i). It follows that they will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)        that the primary applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the second to fourth named applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Jessica Henderson
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.
…

[2022] AATA 980

21 February 2022

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