1901158 (Refugee)

[2023] AATA 1354

1901158 (Refugee) [2023] AATA 1354 (2 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Teresa Lee (MARN: 2217901)

CASE NUMBERS:  1901158
2202787

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Peter Vlahos

DATE:2 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the following matters for reconsideration:

·matter 1901158 (Safe Haven Enterprise visa application made on 30 June 2017) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

·matter 2202787 (Safe Haven Enterprise visa application made on 18 June 2020) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

This Statement was made on 2 March 2023 at 8.11AM.

CATCHWORDS

REFUGEE – protection visa – Vietnam – actual and imputed political opinion – membership and  activities in church groups – relative of high-profile, imprisoned activist – participated in protest – questioned and beaten by police – legal departure and irregular maritime arrival – protest and social media activity in Australia – evidence of relationship with activist provided – country information – regular intimidation of family and friends of activists – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 48A, 36, 65, 91K, 91L, 411

Migration Regulations 1994 (Cth), Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447

Guo v MIEA (1996) 64 FCR 151

MICMSMA v CBW20 [2021] FCAFC 63

MIMA v Rajalingam (1999) 93 FCR 220

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The applicant claims to be a citizen of Vietnam.

4. According to Departmental records, the applicant arrived in Australia by sea at [Location] [in] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

5. The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 15 October 2014 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

6. The applicant first applied for a Safe Haven Enterprise visa on 30 June 2017. That application was not subject to the s 91K bar and was a valid application. The Minister then purported to lift the s 91K bar and also lifted the s 48A bar against the making of a further Protection visa application in Australia. The applicant then made a second application for a Safe Haven Enterprise visa made on 18 June 2020 which was also valid.

7. The first application for a Safe Haven Enterprise visa on 30 June 2017 was refused by the delegate on 11 May 2018. The delegate refused to grant this visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for in s. 36(2) of the Act. A valid application for review of that decision was made on 17 January 2019.

8. The second application for a Safe Haven Enterprise visa on 18 June 2020 was refused by the delegate on 8 February 2022. The delegate refused to grant this visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for in s.36(2) of the Act. A valid application for review of that decision was made on 1 March 2022.

9. The applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant but not from any other person or persons. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

10. The applicant was represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

11. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

12. 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.

13. 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).

14. 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.

15. 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

16. 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

17. The issue in this case is whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Vietnam. For the following reasons, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.

    Country of origin, nationality, and identity of the applicant

18. The Tribunal noted from the Department’s file[1] that upon arrival to Australia, the applicant identified himself as [Alias] (DOB [1]). In the applicant’s first SHEV application, he identified himself as [the applicant] (DOB [Date 2]), and made known to the Department that he had used [the alias] for reasons of “personal” and “family safety.” With his SHEV application dated 30 July 2017, the applicant provided the following Vietnamese identity documents:

    ·Family registration Book[2]

    ·Birth Certificate (uncertified copy with NAATI accredited translation attached)

    ·Driver’s Licence[3]

    ·Primary School Graduation Certificate (uncertified copy) with ‘attached’ NAATI accredited translation

    [1] Department of Home Affairs File no. [Reference]

    [2] Department of Home Affairs File no. [Reference], Doc ID [ID 1]

    [3] Ibid

19. The above documentation confirmed as is recorded in the Department’s file, the applicant’s identity as [the applicant] (DOD, [Date 2]). Furthermore, on 21 July 2017, the applicant provided a ‘certified copy’ of his birth certificate to the Department (via email).[4] It was further noted on the Department’s file that at the protection visa interview held on 20 March 2018, the applicant informed the Department that when he travelled to [Country 1] from Vinh (Vietnam) by bus, he showed border officers his Vietnamese passport. The applicant stated that his passport was ‘genuine’ and had been issued by the Vietnamese authorities. He also told the Department, that he surrendered his passport to a ‘people smuggler’ at the time of his boarding ‘a boat to Australia.’

    [4] Department of Home Affairs File no. [Reference], Doc ID [ID 2]

20. It was further noted by the Tribunal (referencing the Department’s file) that on 18 June 2020, the applicant lodged a second SHEV application in which he indicated his identity to be [Alias] (DOB, [Date 2]) and also informed the Department that he was known as [Alias] (DOB [Date 1]). The applicant provided the following documents:

    ·A copy of an ‘ImmiCard’, the name was recorded (by Department as being ‘illegible’) and recording a ‘date of birth’ as ‘[Date 2]’

    ·A copy of a Vietnamese driver licence in the name ‘[the applicant]’ (DOB, [Date 2])

    ·A copy of a ‘Vietnamese family register booklet’

    ·A copy of a Vietnamese ‘birth certificate’ in the name of ‘[the applicant]’ (DOB, [Date 2])

    ·A copy of a ‘birth certificate’ issued by the Victorian government for ‘[the child]’ (DOB, [Date 3]) and registering the ‘father’ of the child as ‘[the applicant]’

21. At the SHEV interview, held on 12 October 2021, the applicant confirmed to the Department that his name was ‘[the applicant]’ in the Vietnamese language and that ‘[Given name]’ was his ‘given name’, ‘[Middle name]’ his ‘middle name’ and ‘[Surname]’ was his surname. The applicant also confirmed that his date of birth was [DOB 2].

22. It was also noted by the Tribunal referring to the Department’s file that the delegate accepted and determined the applicant’s identity as follows:

    Name:   [the applicant]

    Date of Birth:            [Date 2]

    Country of Birth:      Vietnam

    Citizenship:              Vietnamese

    That being the evidence before the Department and Tribunal, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Vietnam and has had his claims assessed against that country in relation to ss. 36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of this information and reasons provided to the Tribunal, the Tribunal further accepts and finds that the applicant’s identity as is claimed.

    Protection in another country other than Australia

23. The Tribunal having reviewed and considered all the information before it also concludes and finds that there is no evidence which indicates that the applicant has a right to enter and reside in another country other than his home country – Vietnam. Therefore, the Tribunal finds that s. 36(3) of the Act does not apply to the applicant in this case.

    The applicant’s migration and visa history

24. [In] April 2013 the applicant arrived in Australia on a boat codenamed “[Codename]”. On 4 June 2013 the applicant attended a biodata interview. On 17 June 2013 the applicant’s age determination interview was undertaken by the Department and on 25 June 2013 the determination as to age was made known to the applicant. On 7 July 2013 the applicant attended an entry interview. On 21 October 2013 additional information was received from the applicant’s legal representative. On 4 November 2013 the applicant completed a Form 1022 to change his name and date of birth; the applicant also completed a request for removal from Australia. On 11 November 2013 the applicant submitted additional written claims regarding his identity to the Department and subsequently withdrew his request for removal from Australia. On 13 March 2014 the applicant was provided with notification from the Department concerning a ‘data breach incident.’ On 4 June 2014 the applicant was invited by the Department to provide comment or information with regards to the data breach incident. On 11 June 2014 the applicant provided further written claims and his concerns, re: the data breach incident. On 13 October 2014 the applicant lodged s. 195A Onshore Ministerial Intervention to lift the s. 46A bar and on 14 October 2014 the s. 46A bar was lifted. On 15 October 2014 the applicant’s first Bridging visa E was granted and remained current until 15 October 2015. At the same time, the applicant was granted a subclass 449 Humanitarian Stay (Temporary) visa and remained in force until 22 October 2014. On 22 May 2015 the s. 46A bar was lifted by the Minister for the purpose of granting the applicant a BVE. Between 27 May 2015 to 30 March 2017 multiple BVEs were granted to the applicant.

25. On 30 June 2017 the applicant lodged his first SHEV visa application[5] and on 20 March 2018 the applicant attended his SHEV interview. On 11 May 2018 the applicant’s first SHEV visa application was refused by the Department. On 14 May 2018 the SHEV visa refusal was reviewed by the IAA. On 11 December 2018 the IAA notified the Department that the refusal decision was not a ‘fast-track reviewable’ decision. On 17 January 2019 applicant commenced a review of the refusal decision at the AAT[6]. On 23 March 2019 a ‘re-notification’ was sent for the refusal decision. The applicant (it was determined) had been ‘affected’ by the DBB16 judgement (decided on 6 August 2018). The applicant was re-notified of the refusal decision and was informed that he may seek review of the decision by the AAT.

    [5] Department of Home Affairs File no. [Reference 1].

    [6] AAT File no. 1901158

26. On 14 May 2020 the applicant was notified of an invalid application for a SHEV made on 30 June 2017 as the applicant was affected by DBB16 judgement. On 29 May 2020 a notice under sub-section 91L(1) of the Act was sent to the applicant. On 18 June 2020 a valid SHEV application was lodged.[7] On 29 June 2020 the applicant was granted a BVE. On 23 June 2021 a subclass 820 Partner Visa application was lodged. On 24 June 2021 the subclass 820 Partner visa application submitted was deemed invalid. On 21 September 2021 an interview invite was sent to the applicant’s registered migration agent which was ‘undelivered’. An interview invite was sent by email to the applicant’s email. On 12 October 2021 the applicant attended his SHEV interview. On 8 February 2022 the applicant’s ‘second’ SHEV application was refused by the Department. On 1 March 2022 a review of that refused application was commenced at the AAT.[8]

    The Applicant’s claims for Protection

    [7] Department of Home Affairs File no. [Reference 2].

    [8] AAT File no. 2202787. Also, The Tribunal noted that according to Departmental records, the applicant arrived in Australia by sea at the territory of Ashmore and Cartier Is on 30 April 2013. Following the Full Federal Court decision in DBB16 v MIBP (2018) 260 FCR 447, the applicant was not an ‘unauthorised maritime arrival’ (as was defined in s. 5AA of the Migration Act 1958 (Cth) (‘the Act’) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in section 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in section 5(1)). Instead, it a Part-7 reviewable decision able to be reviewed by the Migration and Refugee Division of the AAT pursuant to section 411 of the Act. Also, it should be noted that the applicant was previously granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary) visa on 15 October 2014 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under section 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at the time. However, following the Full Federal Court decision in MICMSMA v CBW20 [2021] FCAFC 63, the section 91K bar does not apply to applicants who arrived in Australia by sea at the territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the section 91K bar and the applicant made a valid application for review on 18 June 2020.

27. The applicant’s claims for protection and supporting evidence are contained in Department’s files ([Reference 1] and [Reference 2]). The applicant’s claims for protection are summarised as follows:

    ·[In] January 2013, he printed [copies of banners] with the wording ‘[Banner 1]’ and ‘[Banner 2]’. The banners were distributed to families and parishioners who attended court to protest the trial of, and to demand freedom for, the fourteen Catholic youths who were arrested and detained for their anti-Communist activities. One of the fourteen youths was the applicant’s [Relative 1] ([Mr A]);

    ·[In] January 2013, during the verdict announcement, the applicant and others shouted and chanted their slogans. The group were approached by police and asked to remain quiet. The group continued to shout and chant. The police attempted to push the group from the court building; the group pushed back. Plain clothes police assisted the other police, and the group were pushed from the court building. Outside the court building, the group continued to shout and chant; the police surrounded the group and beat them with batons. Many protestors sustained injuries, including the applicant’s [Relative 2] ([Ms B]), the mother of the applicant’s [Relative 1] on trial;

    ·[In] January 2013, the applicant received a summons form the local police, to attend the police station the next morning;

    ·[In] January 2013, the applicant attended the police station. The applicant was questioned about his attendance at the trial and his involvement in supporting Catholic reactionaries. As he did not change his opinion, the applicant was beaten by the police; the beating lasted for an hour. When he was released from the police station, the applicant was warned to not make any further contact with the families of the fourteen Catholic youths, and to do so would lead to imprisonment. The applicant was taken to the local doctor by his parents, and prescribed pain relief;

    ·[In] January 2013, the applicant felt sufficiently well enough to visit his [Relative 2] in hospital;

    ·[In] January 2013, the applicant received a second summons from the police, stating he was to attend the police station on the following date. The applicant and his parents feared a similar beating would occur, so made arrangements for the applicant to travel to Ho Chi Minh City (HCMC) and hide at the home of some friends. The applicant travelled that evening;

    ·In the applicant’s absence from his hometown, the police visited his parents and threatened them. This prompted the applicant’s parents to make arrangements to send the applicant overseas;

    ·[In] April 2013, the applicant’s father called him and instructed him to board a bus to Vinh City. The applicant arrived in Vinh City [in] April 2013 and stayed overnight at a relative’s home located 10 km from his parents’ home. [In] April 2013, the applicant departed Vietnam legally, overland, to [Country 1];

    ·The applicant stated he feared arrest and imprisonment for his involvement in the protest, for ignoring the second police summons, for encouraging other Catholics to participate in the protest, for his actions against police officers on duty, and on account of his grandfather’s imprisonment for five years, as he was the leader of the Catholic community;

    ·The applicant claims the police have continued to visit his parents’ home and ask about the applicant’s whereabouts.

    EVIDENCE AT THE HEARING

    Background of the applicant

1. The applicant is a [Age]-year-old male Vietnamese national born on [DOB 2] in [Hamlet], [Village], Nghe An Province. The applicant is of Kinh ethnicity, and his religion is Catholic.[9] The applicant has parents living in Vietnam and has [siblings] ([brothers] and a sister).[10] The applicant told the Tribunal that he was a part of a ‘devout Catholic family’ and his family remains devout and involved in their local Catholic church.

   [9] The applicant provided the Tribunal with ‘copies’ of a translated ‘birth certificate’ and ‘driver’s licence’ see AAT File, Applicant’s written submission see attachments ‘BD 009-012’.

   [10] see, AAT File ‘BD 013-025’.

2. The applicant said that his grandfather ([Mr. C]), was a ‘leader’ of a Catholic community church and before his death, he had been imprisoned for 5 years on account of his faith. After his grandfather’s passing, the applicant’s told the Tribunal that his father, [Mr D] assumed the responsibility of leadership of the local Catholic church.

3. The applicant commenced his primary school education in [Year] at [Village] School in Nghe An Province, Vietnam.[11]

   [11] The applicant provided the Tribunal with a translated copy of his primary school graduation certificate, see AAT File ‘BD 019-020’.

4. In 2003, the applicant began his secondary education at [Village] Secondary School and later attended [High School].

5. The applicant said that he is currently working as [an Occupation].

6. The applicant said that he is married to an Australian national[12] and is the father of a [Age] -year old child[13] and is expecting the birth of his second child.

   [12] see, AAT File, copy of Marriage Certificate, date of Registration 30 December 2020 – Certificate no. [Number].

   [13] see, AAT File, copy of Australian Citizenship Certificate, Dated 17 December 2019 – Name: [Child 1] – Evidence no. [Number] and Birth Certificate (Victoria) – [Child 2], Date of Registration 19 February 2020, Certificate no (Registration no.[Number]).

7. The applicant said that he left Vietnam sometime in 2013. The applicant was asked by the Tribunal if his departure from Vietnam was legal. The applicant’s response was that he legally left Vietnam for [Country 1] on a validly issued Vietnamese passport. He then went to [Country 2] and then to [Country 3]. Later, while in [Country 3] according to the applicant, he met with people smugglers, negotiated his exit from [Country 3], was taken to a [Country 3] island (name not provided) and later transported by boat to Australia.

8. The applicant was asked to explain why he considered it necessary to leave Vietnam in 2013. The applicant’s explanation was that his [Relative 1], [Mr A] (a Catholic activist) was arrested (on 24 December 2011) and accused by the Vietnamese authorities “for attempting to overthrow the government” together with another 14 co-accused. Following his [Relative 1]’s detention, the applicant told the Tribunal that he and others participated in public protests outside the buildings housing the local people’s court.

9. In particular, the applicant submitted the following recollection of those events:

   “[In] January 2013, the applicant took part in a demonstration as part of a Catholic Youth group which was involved in vigils, charity work to provide relief for people in poverty and demonstrating to demand justice for people in his community. On these days, the applicant printed and distributed [banners] to protestors at the courthouse where his [Relative 1] [was] in appearing for sentencing. Amongst the protestors were members of his family as well as his [Relative 1]’s family.

   (the applicant submitted a photograph of his [Relative 2] protesting at the courthouse)[14]

   Written on the banners were words to the effect – “[Banner 1]” and “[Banner 2]”.

   (the applicant submitted a photograph published by Reuters of people protesting outside the courthouse)[15]

   [14] see, AAT File, Applicant’s written submission, Evidence attachment BD: 093

   [15] Ibid AAT File BD:096

10. The applicant recalled that despite being told by the police to cease protesting, the applicant and others ignored this request. As a result of his refusal to do as the police demanded of him, the applicant was ‘beaten by the authorities.’ Also, the applicant’s [Relative 2] [Ms B] (his [Relative 1]’s mother) was also seriously injured and required hospitalisation.[16]

    [16] Ibid AAT File BD: 094-095 see, a selection of photographs of the applicant’s [Relative 2] being admitted to hospital for treatment of her injuries.

11. The Tribunal was told that despite the public protests, on 9 January 2013, the applicant’s [Relative 1] along with 13 other activists (not identified) was found ‘guilty’ of attempting to overthrow the government as provided for by Article 79 of Vietnam’s Penal Code 1999. The applicant told the Tribunal that his [Relative 1]’s conviction caused him to be sentenced to “four years imprisonment’ and following that a period (not specified) of ‘house arrest.’[17]

    [17] see, AAT File, applicant provides a photograph of his [Relative 1] in court: BD:097

12. The applicant and his counsel emphasised the published remarks of the People’s Court which stated as follows concerning his [Relative 1]:[18]

    [In] 2010, [Mr A] …went to [Country 1]

    to participate in training of “Viet Tan” directly introduced about “non-violation” struggle methods, history of Viet Tan organisation and some websites of this organisation by Nguyen Ngoc Duc, Luong Van My and Nguyen Thi Thanh Van…

    [In] 2010…[Mr A] …went to [Country 4] to participate in training course of “Viet Tan” …about “programs of overcoming firewall and network security” and “notifying international and Vietnam situation.”

    [In] 2011… [Mr A] went to [Country 5] to participate in [a] training course of “Viet Tan” …about “non-violation” struggle methods, “public speaking skills, and skills of finding people to introduce to the organisation”, are introduced on some websites of “Viet Tan”.

    [18] Ibid BD:101 [paragraph 5], 102 [paragraph 10, 12]

13. It was also brought to the attention of the Tribunal by the applicant and his Counsel that [in] January 2013, [Organisation 1] called for the release of the applicant’s [Relative 1], while at the same time describing his activism as follows:[19]

    [Mr A], [Age], is [a Catholic activist] from Vinh, Nghe An Province. He was arrested [in] 2011, in Nghe An Province, charged under clause 2 of Article 79 (Penal Code), and sentenced to [imprisonment] plus [controlled residence].

    [19] BD: 080-084 – [Organisation 1, Title] (9 January 2013), available at: [URL] also see, copy of (translated) sentencing remarks from the trial, see BD:080-084

14. As a consequence of the applicant’s involvement in protests, the Tribunal was told, the applicant was summoned on 10 January 2013 to attend the local police station for questioning. The applicant said that the police ‘knew the relationship’ he had with ‘his [Relative 1]’ [Mr A]. The applicant recalled that he was interrogated in relation to his support for his [Relative 1]’s actions and the police then demanded from the applicant not to continue to support his [Relative 1] or failing to do this, he too, would be ‘charged with the same offence’ (section 2, Article 79, Penal Code). The applicant was then released after having endured a beating in detention.[20]

    [20] BD: 122-123 Medication provided by hospital for treatment of injuries.

15. Following the police summons and interview [in] January 2013, the applicant told the Tribunal that he was requested by the authorities to attend the local police [in] January 2013 for further questioning. The applicant said that ‘out of fear’ that he ‘would be arrested’ and ‘found guilty of attempting to overthrow the government’, following further interrogation by the police, the applicant and his family made arrangements to flee Vietnam (the applicant provided a ‘copy’ of the ‘second’ police ‘summons’).[21]

    [21] see, AAT File, attachments to written submission copy; BD: 086-087

16. [In] January 2013, the Tribunal was told that the applicant ‘fled to Ho Chi Minh City’ and following his parent’s instructions, the applicant said that upon arrival in Ho Chi Minh City he ‘stayed with family friends’. Also, in his absence, the local police in his village visited his home and asked about his whereabouts and threatened his parents.

17. [In] April 2013, before leaving Vietnam, the applicant’s father asked him ‘to return’ to his hometown. The applicant recalled that he did so, but resided at one of his ‘relative’s home’, about 10KM away from his family home. Then, the Tribunal was told that, his father met him and took him to the bus station. At this bus station (location not identified) the applicant met with a ‘people smuggler’ and boarded a bus from Vinh City to [Country 1]. After remaining in [Country 1] for a week, the applicant then flew to [Country 2] and ‘on the same day’ ‘flew directly to [Country 3]’ before ‘departing from [Country 3]’ on a boat to Australia.

18. The Tribunal asked the applicant to explain his political involvement and political beliefs. His response was that in Vietnam he personally was never involved in any ‘political activities’. The applicant told the Tribunal that he was nevertheless involved in his religion as a Catholic believer, as were all members of his family, and assisted his family with their local parish responsibilities. The applicant also told the Tribunal that he was the ‘spiritual child of [Father E]’. The applicant described [Fr E] as a ‘person who stood up for the ordinary people’. He also told the Tribunal that [Fr E] had been accused by the authorities of “being a group” that caused anti-government protests.

19. The applicant was asked whether he had joined any Catholic action group. The applicant recalled that he had been involved in the ‘Catholic Association’. The applicant described this association as a religious but philanthropic organisation which aimed to assist those in need of help within the local community and to provide alms to the local poor. The applicant said that he assisted this association on numerous occasions as a ‘volunteer’. The applicant also told the Tribunal that his [brother], [Mr F] who was involved in activities associated with advocating for the rights of unborn children through his Catholic Youth group, was considered by the local authorities as an ‘opponent’ of communist order and was the subject of surveillance.

20. The applicant was asked whether while in Australia he had been involved in political activities within the Vietnamese community. The applicant told the Tribunal that ‘when he was in Perth’ he had been involved within the Vietnamese community ‘to raise funds’ for political causes and also ‘shared information’ but ‘under another name’ or profile (fake) on ‘[Social media].’

21. The Tribunal asked the applicant to explain how his activities on [Social media] directed against the communist government in Vietnam using a fake identity or profile on [Social media] would make him a person of interest to the Vietnamese authorities. The applicant said that the Vietnamese authorities ‘already consider’ him a ‘person of interest’ because of his family and [Relative 1]’s actions.

22. The applicant was asked whether he had become a member of the Viet Tan while in Australia. The applicant admitted to the Tribunal that he was not a member of the Viet Tan but knew that this organisation existed and that it was openly opposed to the communist government in Vietnam.

23. However, the applicant did attend a meeting of the Viet Tan which was held to provide ‘support’ for the political protests that were occurring in Vietnam and later, the Tribunal was told that information about this public meeting and its purpose was ‘published’ by the applicant on ‘[Social media]’.

24. The Tribunal also noted the comments made by the applicant’s legal counsel at the hearing namely that, the applicant would be perceived to hold actual or imputed anti-government political opinions.

25. In particular, Ms Lee of ESTRIN & SAUL, Migration Specialists (legal counsel) told the Tribunal that the applicant will be perceived to hold actual and imputed anti-government political opinions for ‘a variety of reasons.’ Counsel explained to the Tribunal that it was not only the applicant’s relationship with and support for his political activist [Relative 1] ([Mr A]) and his family involvement in the Catholic Church but also the applicant’s actions while in Australia which included his efforts in seeking asylum, having been interviewed by the Vietnamese authorities while in immigration detention, and his ‘support for the Viet Tan’ and ‘other anti-government movements in Australia’ – both on social media and in-person.[22]

    [22] see, the Applicant’s written submission dated 9.12.2022 in the AAT File no. 1901158 at p.12 and in particular, paragraphs [74-77].

26. Counsel went on to explain to the Tribunal, that when the Department’s delegates were assessing the applicant’s claims, they were not satisfied that he was in fact related to the [Relative 1]/activist [Mr A]. Counsel noted that in the first SHEV decision, the delegate concluded that ‘the applicant has not provided evidence of the claimed relationship between himself and his [Relative 1], such as [a] birth certificate of his purported [Relative 2] and his own relevant parent, to identify the same parentage.’ The delegate, Counsel continued, then rejected ‘in its entirety the applicant’s claim that he [had] participated in, or encouraged others to participate in, a protest against the trial of fourteen Catholic activists in January 2013’ and concluded that the applicant’s ‘claim will not be further explored in this assessment.’

27. In the second SHEV decision, Counsel noted that the delegate determined that there was insufficient evidence to accept that the applicant was in fact related to the Catholic activist [Relative 1] [Mr A] as was claimed. The delegate ‘deferred to the reality’ that ‘[Surname]’ was one of the most common family names in Vietnam, and that in the absence of more evidence, the delegate could not be satisfied of the claimed relationship. 

28. The applicant’s Counsel drew the Tribunal’s attention to the following evidence which supported the ‘familial relationship’ between the applicant and the activist, [Mr A]:

    ·a copy of the applicant’s birth certificate and an English translation.[23]

    ·a copy of the applicant’s father’s birth certificate and an English translation.[24]

    ·a copy of the applicant’s mother’s national identity card and an English translation.[25]

    ·a copy of the applicant’s [Parent’s] [Relative 3’s] national identity card (together with English translations).[26]

    ·a copy of the applicant’s [Parent’s] [Relative 3’s] [Spouse’s] national identity card and birth certificate (together with English translations).[27]

    ·a copy of the applicant’s [Parent’s] [Relative 3]’s son’s birth certificate, national identity card and family register (together with English translations).[28]

    [23] see AAT File, Written submission (Applicant) dated 9.12.2022 “attached evidence”, BD: 009-010

    [24] Ibid, BD: 026-027

    [25] Ibid, BD: 28-29

    [26] Ibid, BD: 034-35

    [27] Ibid, BD: 30-33

    [28] Ibid, BD: 36-35

29. Referring to the documentary evidence submitted to the Tribunal, the applicant’s Counsel suggested that the Tribunal ‘should find’ that ‘the applicant is biologically related to the [Relative 1]’ and Catholic activist ([Mr A]). The Counsel emphasised that the tendered evidence included identity documents which recorded ‘both the applicant’s familial relationships to his own mother’, and ‘the [Relative 1]’s familial relationship to his own mother.’ Counsel noted that the evidence showed that the ‘two [Parents] are [related]’ and copies of their national identity cards demonstrated ‘they are both born in the same village.’

30. Counsel told the Tribunal that the applicant’s [Relative 1]’s political views were well known throughout Vietnam and abroad. In particular, on 20 January 2012, the Viet Tan published their support for [Mr A] stating that he was born on [Date] and that he “is an activist with [a Group]. He also participated in protests against local government seizure of church land.’[29] Moreover, Counsel also noted that the applicant’s [Relative 1]’s ‘affiliation’ with the Viet Tan was so well known that he ‘appeared’ on the Viet Tan’s Wikipedia entry.[30]

    [29] Viet Tan, [Mr A], ([January] 2012), available at: [URL 1]

    [30] see,

31. Counsel also noted that the applicant’s [Relative 1]’s prosecution had also attracted ‘considerable international condemnation.’ An example of this was [in] February 2013, when former federal member for the seat of [Electorate], [Mr G], wrote to the Vietnamese Prime Minister expressing his concern and disappointment at the conviction of 14 human rights activists including the applicant’s [Relative 1], ‘[Mr A]’[31]. Counsel noted that on 31 May 2013, the [Organisation 2’s Representative], [Mr H], released a public message specifically naming the applicant’s [Relative 1] and called for ‘the immediate review of the severe sentences and protested the refusal by the Vietnamese authorities of the [Organisation 2’s] request(s) to attend the trials.[32]

    [31] Letter to the Prime Minister (Vietnam) Mr Nguyen Tan Dung from [Mr G] MP, ([February] 2013), accessible at [URL 2]

    [32] Message from the [Organisation 2’s Representative, Mr H], ([May] 2013), available at: [URL 2]

32. Counsel submitted to the Tribunal (information) that the Vietnamese government’s persecution of relatives of political dissidents and activists was ‘well established.’ In particular, Counsel drew to the Tribunal’s attention the UK Home Office country information report of 12 September 2018, dealing with the treatment of those persons in Vietnam who oppose the state. The report provides the most up-to-date analysis of the risk faced by family members of political activists (which included family members who attended trials):

    Family members of perceived opponents to the state

    2.4.22   Family members of activists, journalists and bloggers have been subjected to physical assaults, harassment, intimidation, arrests and denied some services.

    2.4.24   Family members of high-profile activists, journalists, bloggers and those openly critical of the state who can show that because of their family relationship with a person who is, or is perceived as an opponent to the state, has come to the adverse attention of the authorities which has led to the severe harrassment and/or arrests are likely to be at risk of persecution and/or serious harm by the authorities on return on account of their imputed political opinion. Each case must be considered on its facts…

    2.5 Protection

    2.5.1 As a person’s fear of persecution and/or serious harm by the state, they will not be able to avail themselves of the protection of the authorities…

    2.6 Internal relocation

    2.6.1 As the person’s fear is of persecution and/or serious harm by the state, they will not be able to relocate to escape risk.[33]

    [33] UK Home Office, Country Policy and Information Note Vietnam: Opposition to the State, (September 2018) available at: at p.10

    Treatment of family members of political/perceived activists

    10.1.1 HRW (Human Rights Watch) in their annual world report noted that ‘Police regularly intimidated family members and friends who tried to attend trials of activists.’

    10.1.2 The 2017 USSD report noted that noted that: ‘Family members of activists widely reported incidents of physical harassment, intimidation, and questioning by ministry officials. Such harassment included denying education, jobs, or business opportunities to family members of former or existing political prisoners or activists… ‘Family members of activists alleged numerous and sometimes severe instances of harassment by Ministry of Public Security officials and agents, ranging from making threatening telephone calls and insulting activists in local media and online to attacks on activists’ homes with rocks, shrimp paste, and other substances. There were reports of significant abuses, such as physical assault during interrogation, including ones that caused injury and trauma requiring hospitalisation… ‘Some activists reported that the authorities prevented them and their family members from leaving their homes during politically sensitive events.’

    10.1.3 The same report also noted that family members of a number of political activists said that the government cut their telephone lines and interrupted mobile phone and internet services. It is also noted that family members of former or existing political prisoners or activists widely reported that they were denied education, jobs, or business opportunities.[34]

    [34] Ibid

1. Counsel emphasised the point referring to the UK Home Office report which makes it clear that relatives of activists ‘are likely to be at risk of persecution and/or serious harm by authorities on account of their imputed political opinion.’[35] Counsel was of the opinion, that this country information provided a ‘sound basis’ for the Tribunal finding that ‘the applicant, being the [relative] of a well-known and convicted activist in Vietnam with close links to the Viet Tan’ would ‘face a real chance of persecution’ or a ‘real risk of significant harm’ should he be returned to Vietnam.[36]

   [35] UK Home Office, Country Policy and Information Note Vietnam: Opposition to the State, (September 2018) Available at: at p.10.

   [36] see, also AAT File, Applicant’s written submission at p. 14 in particular, paragraph [81].

2. Counsel, the Tribunal noted, was of the opinion, that the first and second SHEV decisions, the delegates ‘failed to properly consider the effect of the interview (the applicant had) with the Vietnamese authorities and how that may result in the applicant ‘facing additional scrutiny upon his return to Vietnam.’ In particular, (according to Counsel), in the first SHEV application, the delegate did not accept that the applicant was interviewed by the Vietnamese police but provided no explanation as to how he arrived at this conclusion.[37] Whereas, in the second SHEV decision, according to Counsel, the delegate ‘accepted’ that the applicant ‘may have been interviewed by the Vietnamese government delegation’ and pointed to the delegate’s comments that:

   “I have conducted a search on departmental systems, I could not locate any record that shows the applicant was interviewed by [a] Vietnamese delegation in August 2013. However, given there were a number of detainees who were invited to an interview with [the] Vietnamese delegation, I cannot rule out that the applicant may have been invited.”

   [37] Ibid, submission, at p. 14, see paragraph [82].

3. The Tribunal was also made aware by Counsel, of the Human Rights Commission’s (AHRC) report, Nine Vietnamese men in immigration detention v Commonwealth of Australia (Department of Immigration and Border Protection) [2017] AUSHRC 118, which noted that a number of Vietnamese asylum seekers were in fact interviewed by officials from the Vietnamese Ministry of Public Security Immigration (MPSI).[38]

   [38] AAT File, evidence: BD:141

4. The AHRC report found that prior to these interviews taking place, affected detainees were informed that the ‘Vietnamese immigration official has the biographical and identity information you have already provided to the Australian Immigration Department.’[39] The AHRC also found that affected asylum seekers were asked to ‘sign a document at the conclusion of their interview with [the] Vietnamese officials and were not provided with a copy of this document.’[40] Counsel submitted to the Tribunal that ‘this document signed by Vietnamese asylum seekers’ included: ‘1. Personal particulars, 2. Permanent address prior to departure from Vietnam, 3. Date of departure from Vietnam, 4. Date of arrival in Australia, 5. Criminal history, 6. Relatives in Vietnam, 7. Residential details upon return to Vietnam  and 8. Relatives who will return to Vietnam with client.’[41] The AHRC also found that the MPSI’s document went further and ‘asked not only for the date that the person departed Vietnam, but also the name of the border checkpoint where the person departed Vietnam, the person’s purpose for leaving and details of the person’s passport.’[42]

   [39] Ibid, BD:142

   [40] see, AAT File, evidence: BD:140

   [41] Ibid, see BD:141

   [42] Ibid, see BD:141

5. Counsel noted that in coming to its conclusions, the AHRC found that those interviewed were exposed to preventable risk:

   “I find that the privacy of seven complainants was arbitrarily interfered with as a result of Vietnamese officials asking them questions about how they travelled to Australia. There were requests for personal information that was not necessary to ascertain their identity. The answers to those questions were likely to put them at risk of being identified as asylum seekers…[43]

   …[it] does not appear that any steps were taken by the department officer to prevent questions being asked about how the complainants left Vietnam or how they travelled to Australia. I find that the steps taken by the Department to protect the privacy of the complainants were inadequate in the circumstances….[44] As a result, I find that the manner in which the interviews …were conducted was inconsistent with or contrary to their rights under Article 17(1) of the ICCPR.[45]

   [43] Ibid, see BD:159

   [44] Ibid, see BD:159

   [45] Ibid, see BD:159

6. Therefore, according to Counsel, ‘given the applicant’s familial connection’ to his [Relative 1], [Mr A], his previous adverse interactions with the Vietnamese authorities and the fact he was allowed to be interviewed by the MPSI while in immigration detention in Australia, there exists ‘a real risk the Vietnamese government will perceive the applicant to be opposed’ to the Vietnam state and communist regime for these reasons.[46] Indeed, ‘upon return to Vietnam’, Counsel pointed out, the applicant will be viewed as a failed asylum seeker by the Vietnamese authorities. More to the point, (according to Counsel) the ‘very nature of the applicant’s mode of arrival in Australia’ was arguably sufficient for the Vietnamese authorities to conclude that the applicant fled Vietnam for political reasons.

   [46] Ibid, see AAT File, written submission, in particular, paragraph [86] at p.15.

7. Finally, Counsel noted to the Tribunal that the applicant’s perceived opposition to the Vietnamese government was further evidenced by ‘his support of the Viet Tan’ which was made ‘public’ through the applicant’s activities and social media posts. Counsel told the Tribunal that since 2015, the applicant had posted online material ‘in support’ of the ‘freedom of Catholic activists either personally known’ or ‘not known to the applicant.’ Furthermore, the applicant has attended and posted ‘about events in support of the Viet Tan’ and ‘against the persecution of people who are critics’ of the Vietnamese government. Therefore, according to Counsel, the ‘applicant’s affiliation with the Viet Tan’ and his ‘online demonstrations of opposition’ and the surveillance of persons expressing such views online by the Vietnamese authorities, it should be concluded that the Vietnamese authorities are aware of this, in addition to the applicant’s longstanding anti-government political opinion.[47]

   [47] Ibid, see AAT File also, written submission, see paragraph [88] at p.16.

   FINDINGS AND REASONS FOR DECISION

   The issue of credibility

8. The Tribunal is aware of the importance of adopting a reasonable approach to the finding of credibility. In Guo v MIEA (1996) 64 FCR 151 the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

   “…care must be taken than 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.”

9. 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.” (see, United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva, 1992) at paragraph [196]. However, the Handbook also states (at paragraph [203]) that:

   “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 contrary to generally known facts.”

10. 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.

11. 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 the 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.

12. 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; also see, Selvadurai v MIEA & Another (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

13. Also, the Tribunal notes that it is appropriate to take into account an applicant’s delay in lodging an application for protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution: see, per Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.

    The Tribunal’s Decision and reasons

14. In both the applicant’s first and second SHEV applications, the applicant claimed to fear persecution and significant harm in his country of origin, Vietnam, on the basis that he feared facing serious or significant harm at the hands of the Vietnamese authorities, due to ‘actual’ or ‘imputed’ anti-government political opinion which arose from:

    First,               his Catholic religion and faith;

    Second,          his political activities while in Vietnam;

    Third,              his support and connection to his [Relative 1], [Mr A];

    Fourth, his being the subject of an interview by the officials from Vietnamese Ministry of Public Security Immigration (MPSI) and the Department’s data breach; and

    Fifth,               his status as a failed asylum seeker.

15. The Tribunal noted that in the first SHEV decision, the delegate accepted that the applicant was of the Catholic faith and that he was the victim of Departmental data breach. However, the delegate did not concede that the applicant had participated in any ‘political activities’ against the Vietnamese government, or that he ignored a police summons, that he departed Vietnam illegally or that the applicant had been interviewed by Vietnamese immigration officials while in immigration detention.

16. In the second SHEV decision, the delegate accepted that the applicant was of the Catholic faith and that the applicant was a victim of Departmental data breach. However, the delegate accepted that the applicant attended at least one Viet Tan meeting while in Australia, had made social and media posts critical of the Vietnamese authorities, was interviewed by the Vietnamese immigration officials while in detention and may be considered a failed asylum seeker upon return to Vietnam. Nevertheless, the delegate in the second SHEV decision, did not accept aspects of the applicant’s claimed political activities while in Vietnam nor that he was related to his [Relative 1], [Mr A].

17. The main issue that the Tribunal must determine having considered the applicant’s evidence and his Counsel’s written submissions is whether or not the applicant’s claim for the reasons he made known to the Tribunal that he has a political profile, is known to the Vietnamese authorities and of interest to them and whether that profile gives rise to a real chance of persecution or a real risk of significant harm.

    The applicant’s faith/religion as a Catholic

18. First, the Tribunal accepts the applicant’s claim that he is a Catholic and that his family in Vietnam are also of the Catholic faith.

    The applicant’s father and late grandfather active in the local Catholic community

19. Furthermore, the Tribunal accepts that the applicant’s father and late grandfather had been involved in the ‘Catholic’ community and were considered their community’s ‘leaders’ as it regards matters of their local Catholic church. Also, the Tribunal accepts that the applicant’s father had (in 2008) been involved in disagreements with the local authorities concerning the local Catholic community’s ‘intentions’ to construct a church they wish to call “[Church name]” and that as a result of these disagreements the local authorities had by force demolished the church’s roof-top claiming that it was not within or compliant with the local government’s authority’s planning ordinances. The Tribunal noted the available country information report for Vietnam [48] which advises that ‘Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.’[49] Bearing in mind the country information, the Tribunal accepts the applicant’s claim that his father had called a public protest to be made against the local government authority concerning their destruction of part of the Catholic community’s church building and as a result of these protests, the applicant’s father and his family of which also included the applicant attached to him political opinion actual and imputed because of their religion and known dissident voices against the local Communist government authorities.

    Applicant’s relationship with Fr [E] and his influence on the applicant’s religious and political beliefs

    [48] Department of Foreign Affairs and Trade, Country Information Report – Vietnam, 11 January 2022

    [49] Ibid Country Information Report – Vietnam, see paragraph [3.31] at p. 15

20. Second, the applicant told the Tribunal that on or about 2010, the applicant met Catholic activist [Fr. E – full name] (commonly known as ‘[Father E]’), the pastor of Vinh. The applicant told the Tribunal that the applicant and his family had ‘a number of meetings’ with [Fr E] and they, particularly the applicant, developed ‘a deep respect for [Fr E]’ whom the applicant described to the Tribunal as his ‘spiritual father.’ The applicant told the Tribunal that he became inspired by [Fr E]’s ‘radical teachings’ about the issue of ‘faith’ and in particular, ‘demonstrating that faith’ and ‘standing up for the freedom of their people in their community.’ The applicant, with others, would on a regular basis attend upon [Fr E] and listen to him preach and was inspired by his ‘struggles for freedom against the Communist Party.’ The applicant told the Tribunal that he became involved in [Fr E]’s campaigns opposing the local communist government authorities and in particular, the campaign [Fr E] fought against the Vietnamese government’s attempts to seize church property and land. The applicant’s involvement was to prepare pamphlets and posters. The Tribunal noted the ‘letter’  confirming this activity for [Fr E], who confirmed the applicant’s involvement in campaigns against the authorities.[50] Though the applicant did not claim that his involvement with [Fr E] involved him with the authorities in any adverse manner, it did help demonstrate to the Tribunal the genuineness of the  applicant’s claim that his involvement with [Fr E]’s political struggles formed a basis for his political beliefs and his concern to oppose any infringements on his ability to believe and practise his Catholic faith.

    Whether the applicant was the ‘[Relative 1]’ with a direct familial link to the known activist [Mr A]?

    [50] see, AAT File Evidence, BD: 088-089

21. Third, the Tribunal noted the applicant’s claim that [in] 2011, the applicant’s [Relative 1] was arrested and became one of the 14 co-accused individuals charged by the Vietnamese authorities with attempting to overthrow the government (see, Article 79, Vietnam Penal Code 1999)[51]. The Tribunal noted that the delegates in both decisions did not accept that the applicant had any familial relationship with the political activist [Mr A] and therefore refused the applicant’s claim of actual or imputed political beliefs opposing the government because of this claimed relationship. The Tribunal has been provided with a number of documents as evidence by the applicant which confirm the existence of the claimed familial relationship with the activist [Mr A] (see, paragraphs 55 & 56 above). The Tribunal finds and concludes that a familial relationship existed between the applicant and the activist [Mr A] and that therefore the applicant was the ‘[Relative 1]’ of [Mr A] as claimed.

    [51] see, AAT File Evidence, BD: 97[5]

22. Having determined the applicant was a [Relative 1] of the activist [Mr A] the Tribunal accepts as was claimed that the applicant on 8 and 9 January 2013, took part in a demonstration as part of a Catholic Youth group which was protesting the applicant’s [Relative 1]’s imprisonment and trial for subversion. The Tribunal also accepts the evidence submitted that other members of the applicant’s family were also involved at this demonstration (see paragraph 36 above). Further, the Tribunal accepts that the applicant had involved himself in the protest by organising banners for the participating protestors. The Tribunal also notes the photograph submitted as evidence that the demonstration the applicant was involved in had received international note.[52] The Tribunal accepts (having in mind, the country information referenced) that the applicant would have been approached by the authorities and ‘warned’ to ‘cease protesting.’ The Tribunal also accepts that the applicant would have been subjected to some degree of force inflicted upon him by the authorities in order to provide the applicant with direct warning not to do the same in the future.

    [52] see, Evidence BD: 096

23. The Tribunal also accepts the evidence[53] that on 9 January 2013, his [Relative 1], together with 13 activists, was found guilt of attempting to overthrow the government and sentenced to four years imprisonment (followed by house arrest).[54]

    [53] see, Evidence BD: 094-095

    [54] see, Evidence BD: 097

24. The Tribunal also accepts the claim that the applicant was subject to some police interest because of his [Relative 1]’s activities, and it is accepted by the Tribunal having in mind the country information referenced by the Tribunal[55] concerning how the Vietnamese authorities would keep in mind certain activist elements, the Tribunal accepts that the applicant was on 15 January 2013 summoned to appear at the local police station (see, paragraph 42)and the Tribunal notes the evidence of a copy of the police summons issued.[56] The Tribunal also accepts that the applicant and his family had their concerns with this local police summons and immediately organised for the applicant to leave Vietnam by engaging a ‘people smuggler’ who organised the applicant’s exist from Vietnam and transportation by bus to [Country 1] (see, paragraph 44 above).

    Political activism while in Australia

    [55] UK Home Office, Country Policy and Information Note Vietnam: Opposition to the State, (September 2018) Available at: at p.10.

    [56] see, Evidence BD: 086-087

25. The applicant told he Tribunal that following his release from detention in 2015, he began attending the Vietnamese Catholic Church situated at [Suburb], Perth. At this church, its parishioners often (according to the applicant) discussed issues which concerned Catholic believers in Vietnam and the applicant and others (in attendance) were encouraged to attend and to provide their support to anti-Vietnamese government protests and events held by the expat-Vietnamese community in Perth. The Tribunal accepts the applicant’s evidence of attending church while in Perth, a practice he has continued with his wife, now here in Melbourne. The Tribunal also accepts the evidence that the applicant while attending church in Perth would have come into contact with like-minded expat Vietnamese with concerns about human rights issues in Vietnam and in particular concerns about their rights to practise their religion.

1. The Tribunal also accepts the applicant’s evidence that by attending such meetings on a regular basis held at his local church, he was motivated in 2015, to post on social media platforms information about a Vietnamese priest, a [Fr G] who had been jailed by the Vietnamese authorities and calling people to demand his immediate release. The Tribunal also noted and observed evidence of the applicant continuing to share posts on social media speaking out against the Vietnamese communist authorities, issues affecting his community in Vietnam and in particular, highlighting his concerns about the plight of fellow activists who are currently in detention and facing trials for their political beliefs and activism. The Tribunal accepts the evidence the applicant provided – a selection of the applicant’s social media posts highlighting his concerns.[57] 

   [57] see, Evidence BD: 060-067

2. The Tribunal also accepts the claim made by the applicant that in April 2017, he attended a fundraiser which was organised by the Viet Tan with the sole purpose to raise funds to support the plight of political activists in Vietnam.[58] The applicant provided a photograph of himself in attendance at this Viet Tan function which he also published on social media. Further, in June 2018, the applicant participated in an ant-Vietnamese government rally which was held in Perth, which was advocating and making it public known that religious freedom in Vietnam was being limited. The rally was organised by Perth committee of the Viet Tan. The applicant told the Tribunal that the Viet Tan or as he described it as the “Vietnam Reform Revolutionary Party” and also the “New Viet Revolutionary Party” aimed and supported the “non-violent return of democracy to Vietnam”. The applicant also provided evidence that described this organisation as being “outlawed in Vietnam” and considered as a “terrorist organisation” by the Vietnamese authorities.[59]  The Tribunal accepts that the Viet Tan is considered with great suspicion by the Vietnamese authorities and carefully monitor its activism within Vietnam and internationally[60] and would question any individuals association or involvement with this organisation. The Tribunal accepts the evidence that the applicant had published photographs of his attendance at the Viet Tan organised rally[61] on various social media platforms and this act would, if he were to return to Vietnam, make him a person of interest to the Vietnamese authorities and he would be detained, vigorously questioned and if released he would be the subject of state authorities’ surveillance.

   [58] see, Evidence BD: 058

   [59] Reuters, Vietnam says police arrest seven more from group accused of June police station bombing, (September 2018), see at: june-police-station-bombing-idUSKCN1LI0N2

   [60] Ibid, see AAT File also, written submission, see paragraph [88] at p.16.

   [61] see, Evidence in AAT File, BD:057

3. The main issues which surfaced in this review and require the Tribunal to resolve are as follows:  

   a.    Whether the applicant would be perceived as having actual or imputed anti-government political opinions in Vietnam; and

   b.    If so, whether the applicant will be the subject of scrutiny or investigation for reasons of his imputed or actual political opinions; and

   c.     Will this scrutiny or investigation lead to a real chance of persecution or a real risk of significant harm if the applicant is returned to Vietnam.

4. The Tribunal having considered the applicant’s evidence, the Tribunal accepts the applicant will be perceived to hold actual or imputed anti-government political opinion for a number of reasons. This includes his relationship with and support for his political activist [Relative 1], [Mr A] and the applicant’s own family’s involvement with their local Catholic Church and community but this is further made significant by the evidence provided to the Tribunal showing the applicant as continuing his political activities while here in Australia and making his political opinions known on various social media outlets.

5. Having determined the familial relationship as existing, and proven on the evidence provided to the Tribunal, between the applicant and his political activist [Relative 1], [Mr A] and having noted the evidence submitted documenting the applicant’s [Relative 1]’s political views as being well-known not only in Vietnam but internationally, it stands to reason that the applicant would definitely be considered a ‘person-of-interest’ to the Vietnamese authorities if he was to be returned to Vietnam. There is information available that states that the Vietnamese government monitors, detains and persecutes the relatives of political dissidents and activists. The Tribunal noted, on 12 September 2018, the UK Home Office published their country information report on the treatment of persons in Vietnam who oppose the State. This report states that family members of known political activists face a real risk of persecution.

   The report in particular states that:

   2.4.22   Family members of activists, journalists and bloggers have been subject to physical assaults, harrassment, intimidation, arrests and denied some services

   2.4.24   Family members of high-profile journalists, bloggers and those openly critical of the state who can show that because of their family relationship with a person who is, or is perceived as an opponent of the state, has come to the adverse attention of the authorities which has led to severe harassment and/or arrests are likely to be at risk of persecution and/or serious harm by the authorities on return on account of their imputed political opinion.

   2.5 Protection

   2.5.1 As the person’s fear is of persecution and/or serious harm by the state, they will not be able to avail themselves of the protection of the authorities…

   2.6 Internal relocation

   2.6.1 As the person’s fear is of persecution and/or serious harm by the state, they will not be able to relocate to escape that risk.[62]

   [62] UK Home Office, Country Policy and Information Note Vietnam: Opposition to the State, (September 2018) available at: at p.10.

   Treatment of family members of political/perceived activists

   10.1.1 HRW (Human Rights Watch) in their annual world report noted that ‘Police regularly intimidated family members and friends who tried to attend trials of activists.’

   10.1.2 The 2017 USSD report noted that noted that: ‘Family members of activists widely reported incidents of physical harassment, intimidation, and questioning by ministry officials. Such harassment included denying education, jobs, or business opportunities to family members of former or existing political prisoners or activists… ‘Family members of activists alleged numerous and sometimes severe instances of harassment by Ministry of Public Security officials and agents, ranging from making threatening telephone calls and insulting activists in local media and online to attacks on activists’ homes with rocks, shrimp paste, and other substances. There were reports of significant abuses, such as physical assault during interrogation, including ones that caused injury and trauma requiring hospitalisation… ‘Some activists reported that the authorities prevented them and their family members from leaving their homes during politically sensitive events.’

   10.1.3 The same report also noted that family members of a number of political activists said that the government cut their telephone lines and interrupted mobile phone and internet services. It is also noted that family members of former or existing political prisoners or activists widely reported that they were denied education, jobs, or business opportunities.[63]

   [63] Ibid, at p. 35

6. The UK Home Office report is clear in its conclusions that relatives of known activists ‘are likely to be at risk of persecution and/or serious harm by the authorities on return on account of their imputed political opinion.’ [64]

   [64] UK Home Office Country Policy and Information Note Vietnam: Opposition to the State, (September 2018) available at: at p.10.

7. The Tribunal accepts Counsel’s submission that in the first and second SHEV decision, the delegates did not properly assess the effect of the interview the applicant was subjected to with the Vietnamese authorities and how that process would result in the applicant facing additional scrutiny if he was returned to Vietnam. The Tribunal noted that in the first SHEV decision, the delegate did not accept that the applicant was interviewed by the Vietnamese authorities and provided no explanation for coming to this conclusion. In the second SHEV decision, the delegate accepted that the applicant may have been the subject of interview by the Vietnamese government representatives. The delegate records in his decision this, stating that:

   I have conducted a search on departmental systems, I could not locate any record that shows the Applicant was interviewed by [a] Vietnamese delegation in August 2013. However, given there were a number of detainees who were invited to an interview with [a] Vietnamese delegation, I cannot rule out that the applicant may have been invited (the bold is the Tribunal’s).

8. The Tribunal was also referred to the Human Rights Commission’s (AHRC) report, Nine Vietnamese Men in Immigration Detention v Commonwealth of Australia (Department of Immigration and Border Protection) [2017] AusHRC 118, which confirmed that a number of Vietnamese asylum seekers were interviewed by official from the Vietnamese Ministry of Public Security Immigration (or MPSI).[65]

   [65] see, AAT File, Evidence marked ‘BD:141’

9. Of particular relevance to the applicant’s circumstances, the AHRC report noted that prior to these interviews taking place, affected detainees were informed that [a] “Vietnamese immigration official has the biographical and identity information you [the detainee] had already provided to the Australian immigration department.’[66] The AHRC also concluded that affected asylum seekers were also asked to ‘sign a document at the conclusion of their interview with the Vietnamese officials and were not provided with a copy of this document.’[67] Of particular note is, that this document accumulated and recorded details from the affected detainees which included their (a) personal details, (b) permanent address prior to departure from Vietnam, (c) the date of departure from Vietnam, (d) the date of arrival in Australia, (e) criminal history, (f) relatives in Vietnam, (g) residential details upon [a detainee’s] return to Vietnam and (h) relatives who would return with the detainee.[68] The AHRC also determined that the MPSI’s document went further  and ‘asked not only for the date that person departed Vietnam, but also the name of the border checkpoint where the detainee departed Vietnam, the purpose for leaving Vietnam and details of the detainee’s passport.’[69] Considering the issues, the AHRC concluded that those detainees (the applicant included) were exposed to a preventable risk:

   The Commissioner concluded as follows:

   “I find that the privacy of seven complainants was arbitrarily interfered with as a result of Vietnamese officials asking them questions about how they travelled to Australia. There were requests for personal information that was not necessary to ascertain their identity. The answers to those questions were likely to put them at risk of being identified as asylum seekers…[70]

   …[it] does not appear that any steps were taken by the department officer to prevent questions being asked about how the complainants left Vietnam or how they travelled to Australia. I find that the steps taken by the Department to protect the privacy of the complainants were inadequate in the circumstances….[71] As a result, I find that the manner in which the interviews …were conducted was inconsistent with or contrary to their rights under Article 17(1) of the ICCPR.[72]

   [66] Ibid, Evidence, marked ‘BD:142’

   [67] Ibid, Evidence, marked ‘BD: 140’

   [68] Ibid, Evidence, marked ‘BD: 141’

   [69] Ibid, Evidence, marked ‘BD:141’

   [70] Ibid, see BD:159

   [71] Ibid, see BD:159

   [72] Ibid, see BD:159

10. Given the evidence of the applicant’s [familial] relationship to his [Relative 1]; the applicant’s dealings with the Vietnamese authorities when in Vietnam (discussed above) and the fact that the Department allowed a person in its care to be interviewed by the MPSI (a Vietnamese government instrumentality) exposed the applicant in the Tribunal’s opinion to real chance of persecution if he was to removed from Australia to Vietnam. The Vietnamese authorities have a plethora of information on him and would easily locate and deal with him as they would wish (having in mind his known political associations and activities). Also, upon return to Vietnam, the applicant will be observed by the Vietnamese authorities as a failed asylum seeker. The nature of the applicant’s arrival in Australia, for example, as part of an illegal people smuggling enterprise is sufficient reason for the Tribunal to conclude that the Vietnamese authorities would consider, having in mind the applicant’s known associations and activities, that the applicant had reasons to leave Vietnam and he did so because of his personal and imputed political beliefs.

11. Added to the above, the applicant’s actual or imputed opposition to the Vietnamese authorities is further highlighted, in the Tribunal’s opinion, by his open support of the Viet Tan. Since 2015, the applicant has posted online his support for the freedom of Catholic activists either personally known to him or not known to him. In addition to these social media activities, the applicant has attended and posted on social media ‘events’ held by the Viet Tan attempting to bring to the general community’s attention here in Australia and internationally, the struggle and state-directed persecution of activists who are critical to the communist establishment and government in Vietnam. It is reasonable to expect, having in mind the mind-set and thinking of authoritarian establishments and governments (like the Vietnamese), that they would to be aware of the applicant’s activities and comments while in Vietnam and later in Australia, and he would be considered a person-of-interest if he was to return to Vietnam.

12. The Tribunal also considered the issue of whether the applicant would the subject of increased scrutiny or state-directed investigation for reasons the Tribunal has already discussed above.

13. The Department of Foreign Affairs and Trade reports that all persons involved in smuggling activities – including mere travellers – are ‘typically held by the authorities for questioning to determine their involvement in operation’:

    In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in [these] operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.[73]

    [73] see, BD:203 [at paragraph [5.30] Department of Foreign Affairs and Trade Country Information Report – Vietnam, dated 11 January 2022.

14. It is reasonable for the Tribunal to conclude, having considered the evidence and the country information, that a basis exists for the Tribunal finding that the applicant, being a [relative] of well-known and convicted political activist in Vietnam and with close ties to the Viet Tan, would face a real chance of persecution and have a well-founded fear of persecution for his own political opinion and also imputed political opinion because of his [Relative 1]’s political activism as provided for in s.5J(1)(a) of the Act.

15. The DFAT report states that there are ‘credible reports of some returnees held for a brief period of time upon return’ and that ‘the authorities occasionally question returnees from Australia upon their arrival in Vietnam.’[74] Noting that sources ‘have described cases where people have been detained for multiple days or recalled for further questioning multiple days or recalled for further questioning’, DFAT advises that ‘the interview process generally takes between one or two hours and focuses on the obtaining information about the facilitation of any illegal movement on their part.’[75]

    [74] DFAT Country Information Report – Vietnam, dated 21 June 2017, in particular see paragraph [5.21].

    [75] DFAT, Country Information Report – Vietnam, 13 December 2019, at paragraph [5.31].

100.   Again, the Tribunal concedes and adopts the applicant’s Counsel’s conclusions that the available country information provides a clear indication that there is a real risk that the applicant will be interviewed, questioned, and detained if he was to return to Vietnam, the authorities also being interested in his passage to Australia. Indeed, at such an interrogation, it can be expected that the applicant will be compelled by the Vietnamese authorities to provide accurate information about his passage out of Vietnam to Australia. More to the point, once the Vietnamese authorities undertake the interrogation of the applicant – having the information of the applicant’s familial relationship with his political activist [Relative 1], his family’s Catholic activism, his involvement in the 2013 public demonstrations, his continued practising of his Catholic faith and his public anti-government activities and beliefs in Australia - the Tribunal concludes and finds that there is a real chance the Vietnamese authorities would treat the applicant with close scrutiny, detention (possibly indefinite) and vigorous questioning.

101.   Finally, from the available country information, there has been no reduction in the use of politically motivated arbitrary arrests and interrogations in recent years in Vietnam. The reality is, it appears to be quite the opposite situation, with Amnesty International reporting in 2020, that ‘arbitrary arrests and prosecutions of human rights defenders significantly increased.’[76] Amnesty International detailed that those individuals arbitrarily detained reported experiencing ‘sustained harassment, physical assault, arbitrary prosecution and torture and other ill-treatment in police custody.’[77]

[76] Amnesty International, Vietnam 2020,

[77] Amnesty International, Vietnam 2020, paragraph [1] available at

102.   When all these issues discussed and analysed by the Tribunal in detail are taken cumulatively, the Tribunal concludes and finds that the Vietnamese authorities would perceive and consider the applicant to have anti-government political opinions.[78]

[78] see, DFAT Country Information Report – Vietnam, January 11, 2022 at paragraphs [3.39] at p. 18 to [3.64] at p. 19.

103. For the reasons given above, the Tribunal is satisfied that the applicant faces a real chance of persecution in Vietnam in the reasonably foreseeable future and therefore, the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(a) of the Act.

104. Therefore, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

105. The Tribunal remits both of the matters for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Peter Vlahos
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.

…