1904858 (Refugee)

1904858 (Refugee) [2023] AATA 733 (1 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Khanh Hoang (MARN: 2015332)
CASE NUMBERS:  1904858; 2013178
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Alison Murphy
DATE:1 February 2023
PLACE OF DECISION:  Melbourne
DECISION IN 1904858: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
DECISION IN 2013178: The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 01 February 2023 at 10:44am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – strong family and social connections to the faith – Youth Group leader – political opinion – compulsory land acquisition – protests against the Formosa chemical spill – depart Vietnam legally on passport – political activities in Australia – Vietnam Reform Revolutionary Party (Viet Tan) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants appeared before the Tribunal on 25 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Background
The applicants are a [age]-year-old male (the applicant husband, AAT proceeding 1904858); a [age]-year-old female (the applicant wife, AAT proceeding 2013178) and their [age]-year-old daughter (the applicant child, secondary applicant in AAT proceeding 2013178). Each of the applicants is a national of Vietnam.
The applicant husband arrived in Australia by boat [in] April 2013. On 6 November 2015 the Minister lifted the s 46A bar and invited the applicant to apply for a Temporary Protection visa or a Safe Haven Enterprise visa (SHEV). The applicant applied for the SHEV on 18 June 2016 and a delegate refused to grant that visa on 9 February 2017. The letter notifying that refusal advised that the applicant was considered to be a ‘fast track applicant’ and that as a consequence, the refusal decision had been referred to the Immigration Assessment Authority (the IAA) for review. On 1 May 2017 the IAA affirmed the decision not to grant the applicant a protection visa.
On 18 February 2019, the Department of Home Affairs (the Department) wrote to the applicant husband advising that his case had been reassessed and it had been found that he was not in fact a ‘fast track applicant’, with the consequence that he had not been correctly notified of the decision pursuant to s 66 of the Act. That letter advised him that he was being renotified of the decision dated 9 February 2017 to refuse him a SHEV and that he could seek review of that decision from this Tribunal. An application for review of the decision to refuse the applicant a SHEV was lodged on 2 March 2019 (AAT proceedings 1904858).
The applicant wife arrived in Australia [in] January 2019 as the holder of the visitor visa and applied for the protection visa on 7 February 2019. The applicant child was born in Australia [and] was subsequently added to her mother’s application for the protection visa. On 29 July 2020, a delegate refused to grant the protection visa to the applicant wife and child and on 25 August 2020 an application for review of the decision was lodged with this Tribunal.
The matters were heard and determined together as the applicants are a family unit who each rely on the claims of the other members of that family unit. The applicants were represented in relation to the review by the same migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Country of nationality
It is not in dispute that the applicants are each nationals of Vietnam. The applicant husband and applicant wife have produced copies of their Vietnamese identity documents, copies of which are contained on the departmental file. They have at all times identified themselves as Vietnamese nationals and the Department has assessed them on that basis.
The applicant child was born in Australia and has produced to the Department her Australian birth certificate. Article 15 of Vietnam’s Law on Vietnamese Nationality (No, 24/2008/QH12) provides that a child born inside or outside Vietnam to two Vietnamese citizens has Vietnamese nationality.[1]
[1] Law on Vietnamese Nationality [Viet Nam], No. 24/2008/QH12, 13 November 2008, available at: >
The Tribunal finds that each of the applicants is a national of Vietnam and has assessed their claims against Vietnam as their country of nationality and the receiving country.
Claims for protection
The applicant parents claim to face persecution and other forms of harm if returned to Vietnam because of their political opinion and Catholic faith. In each case their claims relate to both their activities in Vietnam and their activities in Australia. It is claimed the applicant child will face persecution and other forms of harm if returned to Vietnam as a consequence of the harm which would befall her parents.
Credibility
As noted below, the delegate broadly accepted the applicants’ claims about their experiences in Vietnam. The Tribunal has the benefit of further oral and documentary evidence from the applicants which, with the exceptions set out below, is highly consistent with their written and oral evidence to the Department.
Prior to the Tribunal hearing, the applicant husband voluntarily produced to the Tribunal a statutory declaration dated 19 January 2023 in which he conceded that some of his original claims were not true. In particular he states that while in detention following his arrival in Australia, he fabricated a claim to have been arrested and beaten by the police after organising a candlelight vigil for the Catholics of Con Cuong. He also acknowledged that his claim that his father was summonsed by police on suspicion of assisting the applicant husband to leave the country illegally was fabricated and these events did not occur.
The applicant’s admission occurred despite the delegate accepting each of those claims to be true. The applicant explained that after being released from detention after three years he wished to make admissions as to his untruthful claims but was afraid of being re-detained. He wishes to tell the truth because he is a Catholic who feels extreme guilt over telling those lies for many years. He says that as someone who has been fighting for human rights, democracy and social justice, he cannot allow himself to fabricate claims and abuse Australia’s humanitarian system.
Acknowledging the applicant husband’s admissions, the Tribunal records that it found the applicants to be generally credible witnesses. With the exception of those matters referred to above, their evidence has been consistent over a long period of time and is supported by a wide range of documentary evidence as well as the witness evidence at hearing.
The applicants’ activities in Vietnam
The applicant husband and applicant wife both originate from [District 1] of Nghe An province, although they were not known to each other in Vietnam. They are both Catholics with strong connections to and involvement with their faith and they met through the younger sister of the applicant husband, who was a good friend of the applicant wife. When the applicant husband saw the applicant wife on his sister’s [Social media 1] profile while he was in detention in Australia, they became [Social media] friends. They met in person when the applicant wife travelled to Australia in January 2019 and they married later that year.
The applicant husband’s activities in Vietnam
It is not in dispute that the applicant husband is a Catholic with strong family and social connections to his faith. The applicant husband’s great-uncle [Mr B] was a priest in the Vinh diocese, while his grandfather worked for the church in various capacities for over 50 years. His father was also involved with [Church 1] in many capacities for 30 years, in the same parish as the applicant’s grandfather. The applicant husband was a prayer assistant to the priest at their local church during his childhood and a member of the Catholic Youth as a young adult. In that capacity he was involved in hanging banners and organising vigils in support of the parishioners of the Con Cuong province. Apart from a three year period where he relocated to Saigon to study and work, he was an involved member of the local Catholic church in his home area.
The delegate accepted the applicant’s account of his religious activities in Vietnam, including that he is a practising Catholic whose extended family has a strong involvement and association with the Catholic church. The delegate further accepted that the applicant was a Youth Group leader who helped organise and participated in a number of protests against treatment of Catholics in late 2012 and early 2013 and hung banners near his family property protesting the treatment of Catholics of Con Cuong province. As referenced above, the delegate also accepted that the applicant was detained and beaten by the Vietnamese authorities as a result of his advocacy for the parishioners of Con Cuong, events the applicant now admits did not occur.
Having heard the evidence of the applicant husband at hearing and having regard to his earlier statements to the Department and country information before the Tribunal, I accept the applicant’s account of his Catholic upbringing and activities in Vietnam. In particular I accept that his family has a long-standing and strong connection to the Vinh Diocese of the Catholic Church in Nghe An province and that his father, grandfather and great-uncle served in various capacities in that diocese for many decades. I accept the applicant husband served as an assistant at mass from childhood and that as a young adult he was a leader of the church’s Youth Group who helped organise and participated in a number of protests against treatment of Catholics in late 2012 and early 2013.
I accept the applicant organised and participated in vigils and other activities in support of the parishioners of Con Cuong in 2012 and 2013. In making that assessment I note that country information indicates that on 1 July 2012, a group of ‘armed soldiers, armed public security officers, government officials, and hired thugs’ disrupted a mass being conducted in a chapel of Con Coung by Rev. Nguyen Dinh Thuc, injuring dozens of parishioners.[2] That incident sparked protests across Vietnam, with more than 10,000 Catholics reported to have marched later that month in different areas of the Diocese of Vinh. On the eve of the planned marches, the Vietnamese authorities stationed armoured vehicles outside the residence of the Bishop of Vinh in an attempt to intimidate Catholics into not attending the march and police were placed on alert. Many young people accused the government of ‘showing the military because they fear the strength of the Catholics.’[3] Clashes between Catholics and the authorities in the diocese of Vinh are reported to have continued through 2013. In September 2014 the Bishop of Vinh diocese said that since the September 2013 clashes, ‘dialogues have helped address the situation’.[4]
[2] The Nguyen Kim Dien Priests Group/Committee of Justice and Peace for the Vietnamese Catholic Community of Archdiocese of Galveston-Houston] n.d. [2013], ‘Vietnam’s Repression of the Catholic Church from 2009 through 2013 – Material for the Universal Periodic Review’, page 7
[3] An Dang J B ‘(with the collaboration of Br. Paul)’ 2012, ‘Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom’, AsiaNews.it, 16 July < [accessed 10 December 2014] <CISNET BACIS CX0D38E8E19941>
[4] Radio Free Asia Vietnamese Service 2014, ‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia website, 10 September < [accessed 1 December 2014] <CISNET BACIS CX1B9ECAB7991>. The Bishop, and the ‘Episcopal Commission for Justice and Peace of the Catholic Bishops' Conference of Vietnam’ he chairs, subsequently strongly criticised Communist Party Government in general: National Catholic Reporter 2014, ‘Vietnam church gets involved in national and international issues’, 16 October < >
In this context I accept the applicant husband’s evidence that after organising and participating in the vigils protesting the treatment of Catholics in Con Cuong, he was threatened by a local police officer who told him that his activities were a protest against the Central Government of Vietnam and ordered him to remove the banners he had placed in public places near his home. The applicant did so, fearful of the consequences. One of his friends, [Mr C], received an anonymous call telling him to collect a parcel from the post office and when he went to collect it he was abducted, his family only being advised months later that he had been arrested under Vietnam’s national security laws. He was later released as the authorities could not prove the charges. I accept that the warning the applicant had received from the local police officer, in conjunction with the ongoing clashes between Catholics and the authorities in the diocese of Vinh and the arrest of his friend and other activities caused the applicant to fear for his safety and make arrangements to depart Vietnam in early 2013.
As well, the delegate accepted the applicant husband’s claim that his family’s land was compulsorily acquired by government authorities in 2014, along with land belonging to other people in the same area, for the purpose of road construction. It was accepted that the applicant’s father was arrested and detained due to his opposition to the land acquisition but has since been released. While accepting that those events occurred, the delegate considered they did not put the applicant at risk of harm if he returns to Vietnam. At hearing the applicant described those events consistently with his earlier statements to the Department.
I have had regard to the DFAT report, which indicates that protests about land and its compulsory acquisition do occur in Vietnam. This is in the context of a land ownership structure where all land is formally owned by the state, which issues usage rights but retains the right to reacquire the land leading to disputes and protests about the level of compensation. As a single party Communist state, the Vietnamese authorities are sensitive to such protests and security provisions of the Penal Code that prohibit actions against the People’s Government effectively outlaw protests the government finds sensitive.[5] In view of the applicant husband’s consistent evidence and the available country information, I accept his father organised protests against the compulsory acquisition of land in their area and that he and others were detained for approximately 5–7 days while the acquisition took place to prevent the protests.
[5] DFAT Country Information Report Vietnam, 11 January 2022 at 3.52–3.57, 3.65.
The applicant wife’s activities in Vietnam
The applicant wife is also Catholic. While living in Hanoi between June 2017 and December 2018 she became involved in a [group], essentially an anti-abortion group. Other members of that group comprised Catholic religious leaders, students and members of the local community and the group sought to support young women experiencing unwanted pregnancies and encourage them to continue those pregnancies rather than have abortions. The Vietnamese authorities saw that group as a threat because of its capacity to mobilise people against the Central Government.

The applicant wife gave evidence that one of the members of [the group], [Mr D], was arrested and sentenced to 20 years in prison for his activities against the Formosa chemical spill and his connection to Viet Tan. Country information confirms that in 2018, [Mr D] was sentenced to 20 years’ imprisonment for ‘carrying out activities aimed at overthrowing the people’s administration’ following a trial that lasted only a few hours. Among the evidence produced at trial was a signed statement by two jailed human rights defenders who informed the judge during their address to the court that the statement had been extracted through torture.[6]
[6] [Source deleted]
Both applicants gave evidence that the applicant husband’s brother-in-law [Mr E] (married to the applicant husband’s elder sister) was arrested along with [Mr F] and sentenced to two years in prison for helping organise protests against Formosa. The applicant wife tried to attend the trial but was blocked from entering the court house by security and warned not to return. The arrest of [Mr E] and [Mr F] for their efforts to raise awareness and ensure accountability in relation to the Formosa disaster is confirmed in media reports.[7] Consistent with the applicants’ evidence at hearing, [Mr E] is reported to be an active member of the local Catholic community in Nghe An who worked [for] Father Nguyen Dinh Thuc and assisted local fishermen affected by the Formosa environmental disaster.[8] Father Nguyen Dinh Thuc was the priest conducting mass in Con Coung when the congregation was attacked by thugs in 2012, injuring dozens of parishioners.[9]
[7] [Source deleted]
[8] [Source deleted]
[9] The Nguyen Kim Dien Priests Group/Committee of Justice and Peace for the Vietnamese Catholic Community of Archdiocese of Galveston-Houston] n.d. [2013], ‘Vietnam’s Repression of the Catholic Church from 2009 through 2013 – Material for the Universal Periodic Review’, page 7
In January 2013, 14 activists were convicted of activities aimed at ‘overthrowing the government’. Thirteen of those were sentenced by a Nghe An court to prison terms of three to 13 years while the only person not imprisoned was given a suspended sentence, making him vulnerable to rearrest. Thirteen of the activists were identified as Catholic and eight of those were from Nghe An province, with from the diocese of Vinh. A number of those defendants were reported to have participated in volunteer activities in their local neighborhoods in Vinh, including encouraging women not to have abortions, supporting the poor and people with disabilities, founding the Vinh Human Development Foundation, and working to protect the environment.[10]
[10] Human Rights Watch 2013, ‘Vietnam: Release Convicted Activists’, 9 January <>
DFAT reports that in 2016 and 2017, Vietnam’s Catholics were also heavily involved in protests against the Formosa chemical spill in Central Vietnam, Vietnam’s worst-ever environmental disaster which killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers.[11]
[11] DFAT Country Information Report Vietnam, 11 January 2022
These events motivated the applicant wife to become involved in disseminating information about human rights issues in Vietnam, primarily by attending protests and posting articles and opinions on [Social media 1]. As the government intensified its crackdown on bloggers and online activists, she began to think about leaving Vietnam for her own safety.
The applicant wife’s evidence about her activities as a blogger is consistent with country information. The UK Home Office reports that bloggers and activists in Vietnam operate mainly on social media, with some speaking out against government policies and some able to post information from government sources that is not widely known among the majority of people in Vietnam. [Social media 1] is reportedly their main medium with deep penetration throughout Vietnamese society.[12]
[12] [Source deleted]
The delegate accepted the applicant wife’s account of her activities in Vietnam, including that she has participated in various protests and awareness campaigns since March 2016. In view of the evidence of the applicant wife and the country information referred to above, the Tribunal accepts the applicant wife’s account of her activities and experiences in Vietnam.
The applicants’ activities in Australia
The applicants claim to have continued their political activities since arriving in Australia, most notably by becoming members of pro-democracy group Viet Tan; attending various protests and vigils and continuing to post material critical of the Vietnamese government online. The applicant husband became involved in that group after his release from detention in 2016 and was invited to become a member in November 2017. The applicant wife was introduced to the Victorian Chapter of Viet Tan upon her arrival to Australia in 2019. Her official membership was delayed by COVID restrictions in Victoria and she became a member of that group in October 2022.
DFAT reports that the Vietnam Reform Revolutionary Party (Viet Tan) is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[13] As political opposition parties are illegal within Vietnam,[14] opposition parties are typically based overseas to avoid harassment, arrest and detention.[15] Viet Tan is organised by chapters at the local level and directed by a Central Committee based in the United States.
[13] DFAT Country Information Report Vietnam, 13 December 2019, p.25, 20191213145121
[14] ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 9 September 2019, p.9, 20190917095808
[15] ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 9 September 2019, p.9, 20190917095808; DFAT Country Information Report Vietnam, 13 December 2019, p.25, 20191213145121
The evidence of the applicants about their involvement in Viet Tan in Australia is supported by the written evidence of Viet Tan’s representative of the Australian chapter, Mr Lieu Dang Do and the oral evidence of the witness [Mr A]. [Mr A] told the Tribunal that Mr Do, who is based in South Australia, is the only person in the Australian chapter who is able to represent Viet Tan in an official capacity but the information set out in Mr Do’s letter was provided to him by [Mr A]. [Mr A] has been involved in Viet Tan (and its predecessor organisations of different names) since about 1987 and holds official office in the Victorian chapter of Viet Tan, but that organisation’s rules prevent him from disclosing the nature of that position or his role in the organisation.
Mr Do’s letters confirm that the applicant husband has been involved with Viet Tan since early 2017 and he became a member in November of that year while the applicant wife became involved shortly after her arrival in Melbourne in early 2019 and became a member in October 2022. They have been assigned to different sections within Viet Tan, but as they maintain a network of close friends in Vietnam, they are both involved with sharing information and messages from Viet Tan with the aim to recruit new members in Vietnam. Mr Do notes that Viet Tan has been branded a terrorist organisation by the Vietnamese authorities and have imprisoned several members to long prison sentences for publicly speaking up about the wrongdoings of the Vietnamese government. Do Dang Lieu is listed as a terrorist on the website of Vietnam’s Ministry of Public Security because of his position as a member of the Central Committee of Viet Tan.[16] The Ministry’s website also lists a number of other members of Viet Tan’s Central Committee as terrorists.
[16] Ministry of Public Security Portal (bocongan.gov.vn)
The witness [Mr A] confirmed he had known the applicants personally since 2017 and 2019 respectively, that they had been actively involved in Viet Tan’s activities and that they played an important role in spreading information to their networks in Vietnam and recruiting new members to the organisation. He said that persons wishing to become members of Viet Tan were assessed for six months before being invited to join because of concerns about infiltration. He said that Viet Tan did not ask its members to identify themselves publicly given the risks that flow for them and their family members in Vietnam, but that members could assume that risk if they wished to.
The Tribunal accepts the evidence of [Mr A] as to the operations of the Viet Tan in Australia and his knowledge of and the activities of the applicant husband and applicant wife within that organisation. The Tribunal has also had regard to the large amount of photographs of the applicant’s attending Viet Tan activities and re-posting Viet Tan’s posts in social media.
Risk of harm on return to Vietnam
The Tribunal has accepted that the applicant husband and applicant wife were among many young Catholics involved in advocating for social justice and human rights in Vietnam. That advocacy took the form of sharing information within their local networks, organising protests and public vigils and posting information on social media.
In the case of the applicant husband, the delegate considered that the applicant’s experiences as a Catholic in 2012 and 2013 occurred in the context of a particularly tumultuous time between Catholics and the Vietnamese government and there was no real chance the applicant would face harm for these reasons if returned to Vietnam.
In the case of the applicant wife, the delegate did not accept she held a profile that would attract the interests of the Vietnamese authorities if she returned, considering that her ability to obtain a passport in 2016 and leave Vietnam in 2019 to travel to Australia indicated that she was not of adverse interest to the Vietnamese authorities at that time. While the delegate accepted she had shared content critical of the Vietnamese authorities online, she considered that the sheer number of people using social media in Vietnam meant that she would not come to the attention of the Vietnamese authorities for this reason.
The fact that the applicant husband and applicant wife were both able to depart Vietnam legally, using genuinely issued passports, is an indication that they were not at that time of significant adverse interest to the Vietnamese authorities, although the Tribunal considers they may have changed had they remained and continued their activities in that country. However, since their arrival in Australia, they have joined and been active in the pro-democracy group Viet Tan, a prescribed terrorist group in Vietnam. They have both posted large amounts of information on social media related to Viet Tan and human rights in Vietnam and have personal connections to at least two persons jailed in Vietnam for their political opinion. The Tribunal considers these events significantly change their profile and escalate their risk on return.
DFAT reports the Vietnamese closely monitor online activities, with human rights advocates claiming there are thousands of agents monitoring online discussion and blogs. Legal reforms to Vietnam’s cyber-security laws in 2019 forced social media companies to set up offices and store user data domestically, bringing greater attention to online commentary and activists. Even low-level users are sometimes subject to fines, arrest and prison sentences and frequent online posting increases the risk of attention from the authorities. DFAT notes that it is difficult to assess the risk to online activists, but a repeated pattern of online activity would generally, though not always, attract the attention of authorities.[17]
[17] DFAT Country Information Report Vietnam, 11 January 2022 at 3.61–3.64
The UK Home Office reports that bloggers and activists in Vietnam operating on social media are vulnerable to harassment and arrest, the Vietnamese authorities being wary of people making associations or organising themselves politically, particularly those with links to foreign NGOs and those who seek democracy or a multi-party system. It is reported that if the authorities become aware of someone on [Social media 1] or social media calling for a demonstration on the street, then they may put someone outside of an activist’s house. Activists may be watched both day and night and before any major event a check will be made to ensure they are at home and registration checked to verify who is in the house. If they leave home, they will be followed and sometimes they may be prevented from leaving.[18]
[18] UK Home Office Report of a Home Office fact-finding mission to Vietnam Conducted between 23 February and 1 March 2019 9 September 2019 at VNM FFM Report - HO v3 (publishing.service.gov.uk) at 8.3
The Tribunal is satisfied that the applicants’ political activities in Australia reflect their genuinely held political views and are consistent with their views and activities in Vietnam. The Tribunal is satisfied that their political activities in Australia were not undertaken for the purpose of strengthening their refugee claims and must not be regarded under s 5J(6).
In 2016, the Vietnamese government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism, accusing Viet Tan of carrying out terrorist activities to end Communist rule in Vietnam. However, Viet Tan says it is committed to non-violent struggle to end Communist rule in Vietnam and the US government has said it has seen no evidence that it is conducting terrorist activity. In 2016 it was reported that several Viet Tan members from the United States and Australia have been brought to trial or deported.[19] Viet Tan was described by the Office of the United Nations High Commissioner for Human Rights as a moderate activist group advocating for democratic reform.
[19] ‘Vietnam declares San Jose-based Viet Tan a terrorist group’, Associated Press (AP), 7 October 2016, CX6A26A6E11016
The witness [Mr A] described his own experience in coming to Australia as a refugee by boat in the 1990s and later being conferred with Australian citizenship. He has a close relative in Vietnam that he wishes to visit and protect, so he has been careful not to publicly identify himself as a member of Viet Tan. He has returned to Vietnam on three occasions since arriving in Australia, following the birth of each of his three children. On the first two occasions he experienced no difficulty, but on the third occasion he was granted a visa by the Vietnamese Embassy in Canberra but refused entry to Vietnam on arrival. When he showed his visa and asked why he was being denied entry, he was told they knew what he had done and he was turned around and deported back to Australia.
[Mr A] gave evidence that most known Viet Tan members and supporters who have citizenship of a third country are deported, but those who hold only Vietnamese citizenship are in a very difficult position if they are identified as Viet Tan members. He said that any Viet Tan member who returns to Vietnam risked harm from the Vietnamese authorities, although it is difficult to know exactly what sort of harm will befall any individual. Similarly, Mr Do states in his letter of support that he believes the applicants’ involvement with Viet Tan, especially their recruiting work, represents a real and serious risk to their safety should they be returned to Vietnam.
[Mr A]’s evidence is consistent with independent country information. Kham Van Chau, a 70-year-old Australian man returning to Vietnam in November 2019, was arrested and convicted of terrorism by a Vietnamese court on the basis of his membership of Viet Tan. Mr Kham had been denied a visa to enter Vietnam to meet fellow pro-democracy advocates and was crossing into Vietnam via its land border with Cambodia carrying false documents when he was detained. He was sentenced to 12 years’ jail, described as effectively a ‘life sentence’ by Human Rights Watch’s Asia director:
Given the harsh and unforgiving conditions in Vietnam’s prisons, he will face huge challenges to survive his entire sentence. He has been incarcerated on bogus, politically motivated charges that demonstrate just how fearful Vietnam is about people exercising their rights and demanding genuine democracy. ‘He should be released immediately and unconditionally and allowed to return to his family in Australia.’[20]
[20] Australian retiree convicted of terrorism and jailed for 12 years in Vietnam | Vietnam | The Guardian; ‘Please, bring him back’: family fear Australian democracy activist will die in Vietnamese jail | Australian foreign policy | The Guardian; Penny Wong raises Chau Van Kham case with Vietnamese President after UN finding he was ‘forcibly disappeared’ - ABC News
As at the time of the Tribunal’s decision, Mr Kham remains imprisoned in Vietnam. The United Nations Working Group on Arbitrary Detention (WGAD) has criticised the case against Mr Kham Van Chau, saying that his connection to Viet Tan could not be considered grounds for arrest and he was being punished only for peacefully exercising the right to freedom of expression and association as provided for in the Universal Declaration of Human Rights.[21] Other dual nationals or overseas-based Viet Tan members who are or have been imprisoned on return to Vietnam include Nguyen Quoc Quan, an American based Vietnamese born human rights activist and member of Viet Tan’s Central Committee who was jailed and later deported from Vietnam; Pham Minh Hoang, French-Vietnamese dissident blogger and Viet Tan member jailed and later deported for publishing articles the Vietnamese authorities considered ‘blackened the image of the country’; Tran Thi Nga, a political activist imprisoned for her activism in land and labour rights and Nguyen Ngoc Nhu Quynh, co-founder of the Vietnamese Bloggers Network who was imprisoned and later released on condition she was exiled from Vietnam.[22]
[21] Membership of a political party ‘cannot be grounds for arrest’ UN group says — Radio Free Asia (rfa.org)
[22] See country information attached to submissions dated 20 January 2023
The Vietnam Human Rights Network reported that in 2021 and the first five months of 2022, the Vietnamese authorities used vaguely worded provisions of the 2015 Criminal Law to detain at least 48 dissidents and sentenced 72 dissidents to harsh penalties in what it described as criminalised political cases. It reported that basic principles of criminal procedure are violated at every possible stage: detention beyond the legal limit without indictment, no introduction of evidence or witnesses, and prevention of contact with lawyer and family. In many court sessions, lawyers are either disallowed or restricted in their defense; relatives cannot attend.[23]
[23] Report on Human Rights in Vietnam 2021 – 2022, Vietnam Human Rights Network, 24 June 2022 at
Human Rights Watch reported that Vietnam currently holds more than 160 people in prison for peacefully exercising their basic civil and political rights. During the first nine months of 2022, the courts convicted at least 27 people for voicing criticism of the government, and campaigning on human rights, environment, or democracy causes, and sentenced them to long prison sentences. They included citizen journalists, democracy activists and bloggers. HRW reports that the Vietnamese government routinely violates the right to freedom of movement and other basic rights by subjecting such persons to house arrest, harassment and other forms of detention and blocking them from domestic and international travel.[24]
[24] Human Rights Watch World Report 2023: Vietnam at World Report 2023: Vietnam | Human Rights Watch (hrw.org)

In light of the above country information, the Tribunal assesses the applicants’ membership of and activities with Viet Tan in Australia significantly increase the likelihood that they are already of adverse interest to the Vietnamese authorities or will become so if returned to Vietnam. The Tribunal accepts it is highly likely that Viet Tan’s [Social media 1] page Is monitored by the Vietnamese authorities and the applicants’ open support of that group will be known to the Vietnamese authorities. The Tribunal accepts that if the applicants are returned to Vietnam, there is a real chance they will face monitoring, harassment, arbitrary arrest and imprisonment and other forms of harm. The Tribunal is satisfied that harm constitutes ‘serious harm’ for the purposes of s 5J(4)(b) and involves serious and discriminatory conduct for the purposes of s 5J(4)(c). While their political opinions arise at least in part from their Catholic faith, the Tribunal considers that the essential and significant reason for the harm they fear is their political opinion (s 5J(4)(a)).
For these reasons the Tribunal finds that each of the applicant parents has a well-founded fear of persecution for reasons of their political opinion if returned to Vietnam now or in the reasonably foreseeable future. As the persecutor is the Vietnamese government, the Tribunal accepts that the real chance of persecution relates to all areas of Vietnam and effective state protection is not available to the applicants. They cannot be required to modify their behaviour to alter or conceal their political beliefs to avoid a real chance of persecution: s 5J(3)(iii). It follows that they meet the definition of a refugee set out in s 5H.
The applicant child
The applicant child is a [age]-year-old Vietnamese national born in Australia. It is submitted that as a result of being born in Australia, she does not have a Vietnamese birth certificate or a household registration. While her parents can initiate her registration by presenting the relevant papers to the local authorities, they face a real chance of arrest on return to Vietnam leaving them unable to present the documents required for their daughter’s registration in person to the local authorities. If unregistered, the applicant child will be unable to obtain routine health care or education.
DFAT confirms that without local registration, access to services such as public education and healthcare becomes difficult and a child cannot be registered without household registration documents and an identity card. DFAT also reports that applications for birth registration of a child born overseas can be processed through the relevant Vietnamese embassy or consulate.[25] However as DFAT also indicates that the Vietnamese government withholds official documents such as passports from known political activists and uses household registration requirements to restrict their movements, the Tribunal considers there is no certainty such processes will be successful in this case.
[25] DFAT Country Information Report Vietnam, 11 January 2022 at 5.38
For the reasons set out above, the Tribunal has accepted there to be a real chance the applicant parents will face monitoring, harassment, arbitrary arrest and imprisonment and other forms of harm if returned to Vietnam. Such circumstances would create a real chance of serious harm to the applicant daughter, including that she may be separated from her parents who are her sole care givers or detained alongside her mother.
In making that assessment the Tribunal notes that in 2016, four young children of a female Vietnamese asylum-seeker returned to Vietnam from Australia were placed in an orphanage when their mother was jailed for helping organise an illegal departure in the family fishing boat, the children’s father already being in jail for similar offences. The extended family of the children were reportedly unable to afford to care for them.[26]
[26] Kids ‘orphaned’ as Vietnam jails parents over asylum bid | The Australian; EXCLUSIVE: Fate of Vietnamese asylum seeker children hangs in the balance (independentaustralia.net)
In these circumstances the Tribunal accepts there to be a real chance the applicant child will face serious harm for reasons of her membership of the family unit of her parents. For these reasons the Tribunal finds that the applicant child has a well-founded fear of persecution for reasons of her membership of a particular social group comprising her family if she is returned to Vietnam now or in the reasonably foreseeable future. As the persecutor is the Vietnamese government, the real chance of persecution relates to all areas of Vietnam and effective state protection is not available to her. For these reasons she meets the definition of a refugee set out in s 5H.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION IN 1904858 ([FIRST-NAMED APPLICANT])
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
DECISION IN 2013178 ([SECOND-NAMED APPLICANT] AND [THIRD-NAMED APPLICANT])
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Alison Murphy

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.
…

< Nguyen Hun 2012, ‘Vinh: Catholics targeted by thugs and authorities. Dozens of faithful injured during’ [sic], AsiaNews.it, 3 July at VIETNAM Vinh: Catholics targeted by thugs and authorities. Dozens of faithful injured during (asianews.it);

[2023] AATA 733

1 February 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness