Evidence
Evidence Before The Court
With regard to [the first named applicant] and her sons, CBW20 provided clear, recent and unambiguous judicial authority to support the conclusion that the Tribunal’s earlier decision to set aside the decision of the delegate and substitute a decision that the (first) SHEV application was invalid was plainly wrong. Relevantly, the Tribunal had not yet specifically considered, let alone made a decision on, the merits of the review. Furthermore, recent correspondence received from the Department indicated that the Department was open to the Tribunal considering revisiting the invalid determinations made. I also formed the view that the outcome of reopening the matter was consistent with both the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and was not inconsistent with promoting public trust in its decision-making, particularly in circumstances where one family member had obtained a different outcome.[4] I considered it both lawful and sound to treat the first Tribunal’s decisions in relation to [the first named applicant] and her sons as a nullity.[4] Mora (Migration) [2016] AATA 4198 at [20].CLAIMS AND EVIDENCE [The first named applicant] attended an entry interview held on 16 May 2013, essentially claiming to have departed Vietnam due to her fear of being persecuted as a Catholic and subsequent to the participation of her husband in a candlelight vigil protest at the chapel of Con Coung District in July 2012. As mentioned earlier, [the first named applicant] was initially included in her husband’s SHEV application as a member of his family unit and did not make her own claims for protection. That application was refused, and [Mr A] applied for a review of the delegate’s decision to the first Tribunal. In pre-hearing submissions provided to the first Tribunal, [the first named applicant] raised her own claims for protection, namely that she is a member of the Vietnam Reform Revolutionary Party (or Viet Tan). The claim was supported by letters from [Chapter 1] of the Vietnamese Community in Australia, stating that [the first named applicant] has been an active member of the Catholic community since 2014 and she is a member of Viet Tan. [The first named applicant] also submitted photographs depicting her participation or attendance at Viet Tan events, including a photograph showing her being granted an award for being an active member of Viet Tan for the year 2019–2020. In her covering submissions, [the first named applicant]’s representative, Ms Khanh Hoang, submitted that [the first named applicant] had been involved in Viet Tan activities since 2017 and that evidence of her involvement was not available at the time of the decisions made by the delegate and subsequently the IAA. Ms Hoang submitted that [the first named applicant] had publicly announced her membership with Viet Tan on social media and provided supporting evidence, including copies of posts from [the first named applicant]’s [social media] page in the Vietnamese language.
Decision
Reasons for decision
I accept [the first named applicant]’s evidence that the fourth named applicant passed away in Australia [in] February 2023. It follows that the review application in relation to the fourth named applicant lapses and there is no valid application for review. The Tribunal, therefore, does not have jurisdiction with respect to the fourth named applicant.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 second and third 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; and. The Tribunal does not have jurisdiction with respect to the fourth named applicant on the basis that there is no valid application for review.Shahyar RoushanSenior MemberATTACHMENT – Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Analysis, findings and reasons For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration. On the basis of the evidence submitted to the first Tribunal and subsequently to the present Tribunal, I accept that [the first named applicant] began associating with Viet Tan soon after her arrival in Australia and that she formally joined the party in 2019. I accept that [the first named applicant] continues to be a committed member of Viet Tan, although she briefly paused her activities recently due to the illness and subsequent death of her son. I accept that during the course of her involvement with Viet Tan in Australia, [the first named applicant] has participated in numerous protests, has been a vocal critic of the Vietnamese government and its policies, has supported human rights activities in Vietnam and has expressed her views online through [social media] posts and YouTube videos. I find, as was previously found by the first Tribunal, that there is a real chance that [the first named applicant] will be identified as an active member of the Viet Tan and an outspoken critic of the Vietnamese government and authorities if she were to return to Vietnam. I also find that [the first named applicant] will seek to continue her political activities and/or to express her views if she were to return to Vietnam. The country information sources I have consulted indicate that opposition pro-democracy groups and those with overseas links such as Viet Tan have been proscribed as terrorist organisations. As political opposition parties are illegal within Vietnam, opposition parties are typically based overseas to avoid harassment, arrest and detention.[5] According to DFAT, Viet Tan is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[6] In 2016, the government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism.[7] Other opposition groups, who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[8][5] 'Report of a Home Office fact-finding mission to Vietnam – Conducted between 23 February and 1st March 2019', UK Home Office, 9 September 2019; and 'DFAT Country Information Report Vietnam', DFAT, 13 December 2019.[6] DFAT, ibid.[7] 'Vietnam declares San Jose-based Viet Tan a terrorist group', Associated Press (AP), 7 October 2016, [8] DFAT, n5, above.