1905046 (Refugee)

1905046 (Refugee) [2023] AATA 4686 (14 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATIONS FOR REVIEW:               Applications for review of two separate decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa subclass XE-790 Safe Haven Enterprise Visa (‘SHEV’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBERS:  1905046 + 2108606
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Kate Chapple
DATE:14 December 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal:
a.    affirms the delegate’s decision 26 April 2018 to refuse to grant the applicant a SHEV (Tribunal review case number 1905046).
b.    sets aside the delegate’s decision dated 28 June 2021 to refuse to grant the applicant a SHEV (Tribunal review case number 2108606) and substitutes it with a decision that the associated SHEV application was not valid.

Statement made on 14 December 2023 at 1:34pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – arrival by sea – temporary safe haven visa and statutory bar – not ‘unauthorised maritime arrival’ and ‘fast track applicant’ as defined – first application valid, so second application invalid – religion – Roman Catholic – youth organiser, student for priesthood and participant in protests – attacked and threatened by thugs – friends arrested and summons issued for applicant – claimed association with high-profile activist – new claim of attendance at Viet Tan meetings in Australia – vague and inconsistent evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 5AAA(2), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 48A, 48B, 65, 91K, 423A(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
BACKGROUND

These are applications for review of two separate decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a SHEV under s 65 of the Act.
The applicant is a citizen of Vietnam.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a SHEV is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 15 October 2014. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a SHEV on 3 August 2017. A delegate of the Minister decided to refuse to grant this visa on 18 February 2019.
The applicant made a valid application for review of the first SHEV refusal decision on 4 March 2019 (case number 1905046).
The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.
On 22 October 2020, the Department wrote to the applicant confirming previous advice that the first SHEV application was invalid and inviting the applicant to make a second SHEV application within 7 days of the deemed date of receipt of the letter.
The applicant purported to make a second application for a SHEV on 4 November 2020. However, the applicant’s first SHEV application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The second SHEV was refused by the delegate on 28 June 2021. The applicant made an application for review of the second SHEV refusal decision on 1 July 2021 (case number 2108606). However, the second SHEV application is, and always was, barred under s 48A. Accordingly, the second SHEV application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second SHEV and substitute it with a decision that the second SHEV application is invalid.
EVIDENCE BEFORE THE TRIBUNAL
SHEV applications
SHEV application lodged 3 August 2017.
Applicant’s statement dated 3 August 2017.
SHEV application dated 4 November 2020.
Applicant’s statement dated 6 April 2021.
Catholic priest’s unsigned statement dated 24 June 2021.
Refugee Advice & Casework Service (‘RACS’) submission dated 24 June 2021.
Decision records relating to the delegates’ refusal decisions.
Departmental interview audio files.
Internal departmental records relating to the applicant.
Application for review case number 1905046
Application for review lodged 4 March 2019.
The Tribunal wrote to the applicant inviting him to attend a hearing on 12 December 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal confirmation that he intended to participate in the hearing with the assistance of an interpreter. The applicant did not submit any further statements or documents in support of his case.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted via video link on 12 December 2023, with the assistance of an interpreter (also via video link) in the Vietnamese and English languages. The applicant was unrepresented.
At the start of the hearing, the Tribunal summarised for the applicant the status of his applications for review as follows:
You made your first SHEV application to the department on 3 August 2017. The decision to refuse the SHEV was made on 18 February 2019. You then lodged an application for review of that refusal decision with the Tribunal on 4 March 2019.
For legal reasons, you were subsequently invited by the department to make a further SHEV application. You made your second SHEV application to the department on 4 November 2020. The decision to refuse that SHEV was made on 28 June 2021. You then lodged an application for review of that refusal decision with the Tribunal on 1 July 2021.
At the time of your second SHEV application, it was understood that you were in a category of applicants that were permitted to make a second application on the basis that your first SHEV application was invalid.
However, it has subsequently been determined that your first SHEV application was in fact valid, and on that basis you were never entitled under Australian law to make the second SHEV application.
Consequently your second SHEV application was and remains invalid, and on that basis the Tribunal does not have jurisdiction to review the related refusal decision. That is Tribunal case number 2108606.
Today’s hearing therefore is a review of your first SHEV application. That is Tribunal case number 1905046.
The Tribunal asked the applicant if he recalled and wished to rely on the following documents submitted as part of his SHEV applications. The applicant said it’s been a long time, he’s not sure, his memory isn’t good after his accident, and he doesn’t have the documents with him, but he wants to rely on the documents for the purposes of the hearing; he remembers the events, but not the dates. The Tribunal explained to the applicant that it was his obligation to make his own case before the Tribunal.
·     Applicant’s statement dated 3 August 2017.
·     Applicant’s statement dated 6 April 2021.
·     Catholic priest’s statement dated 24 June 2021.
·     Refugee Advice & Casework Service submission dated 24 June 2021.
The applicant gave evidence, summarised by the Tribunal as follows:
26.1.The applicant was born in [Year] in Nghe An province where he grew up with his parents and [siblings], of whom he is the second eldest. His parents were farmers; his family very poor. His mother and siblings still live in or near Nghe An province; his father has died.
26.2.His parents are devout Catholics and brought up him and his siblings in the Catholic faith. The applicant was baptised soon after birth; he has a certificate, but he’s not sure where. The applicant appeared not to understand the Tribunal’s questions about the sacrament of confirmation. He attended the local church, [Location 1], for mass every Saturday night, and from time to time, also attended on Sunday mornings. In the first part of the mass, the congregation recited prayers of benediction and rosary prayers, and in the second part, the priest delivered a sermon.
26.3.The applicant really wanted to be a priest because there was no other way to further his education, his family was too poor. When he was in grade 10, around the ages of 13 to 15, the applicant went to live with the local priest about half a kilometre from his home, and began to learn about being a priest. He stayed there for around three years while he continued to attend school. He helped to organise activities such as [Sport] games; this required the approval of the local authorities, however there weren’t any problems.
26.4.When the applicant finished year 12, he was sent to a Christian school in Ha Tinh province, about 100 kilometres from his home, to study to be a priest. He studied for two years then sat the entrance test, which he failed.
26.5.The applicant then attended [University] in Vinh city and studied English in two phases: [Years]; [Years]. While at university, the applicant was part of a Catholic student group called, [Group 1], which was the name of the local area. They gathered at his house every Saturday to discuss the teachings of Jesus and to provide support to any students needing help; they also organised and participated in [Sport] competitions with other student groups. The applicant lived in a house on the border of Nghe An province; it was owned by [a] church benefactor who, through the priest the applicant lived with, provided free accommodation to young Catholic students. The applicant’s university fees were paid for by the applicant’s spiritual father (not his real father, however it is not clear to the Tribunal whether the spiritual father is the priest he lived with or someone else); the applicant earned some income from private [work].
26.6.After [Group 1] had gathered at his house on a few occasions in 2001, the police came and arrested the applicant and others and took them to the local station. He made a statement and was let go at 1 or 2am. He doesn’t know why they were suddenly arrested. The police said they were forbidden to have gatherings because they cause problems.
26.7.The applicant then approached the priest to ask if the group could gather at the [Location 2] church instead. At the time, there were disputes ongoing between the church and the local authorities about land ownership; the [Location 2] land had been confiscated. Catholics gathered once a month for prayers on the confiscated land. The applicant and his group participated in these prayers. He and the others were recognised by police and interrogated. The applicant thinks this occurred in 2001, but he's not sure. After the police came, he and the group didn’t attend [Location 2] again.
26.8.The applicant met his wife in 2001; they were students together at university. He can’t remember when they married. They have [sons], aged [Ages]. They live together in Luong, Nghe An province. His wife works at the [Work area] at the [Workplace]; he doesn’t know about her wages. Since the applicant has been in Australia he has sent money back to his mother because she is very old, and to his wife because it’s very expensive to live. Sometimes it’s hundreds, other times, thousands; every month or every few months, it’s not regular.
26.9.In about 2002 or 2003, the applicant isn’t sure, as the land dispute escalated, the local priest organised for the group to go to another church to protest. The applicant and a friend participated in a pilgrimage. The police called it a disturbance; he was interrogated by police for encouraging people to participate.
26.10.At some time that isn’t clear to the Tribunal, possibly two years after his first attempt, the applicant resat the priesthood test, and failed again.
26.11.After the applicant left university, the applicant organised a group of former Catholic students to support those students who had been dealt with inhumanely. The group was called: [Group 2]. In 2005 or 2006, on behalf of the group, the applicant asked the local education department in Vinh to change the testing schedule because it conflicted with Christmas celebrations, but they refused.
26.12.Around 2007 or 2008, the applicant isn’t sure as he has memory problems, the applicant was riding his motorbike back from seeing one of the former student groups around 10pm. Three thugs all on the one motorbike ran into him. He was thrown onto the road. People found him with a broken arm and bloody head, and took him to hospital where he regained consciousness after three days. A friend told him that the thugs were hired by the police or the government. He wanted to take the matter to court, but he was told there was no point because nothing would be done about it; in a Communist regime, thugs helped by police do certain things with impunity. He was in hospital for a few months, then treated separately and privately.
26.13.In 2008 or 2009, the applicant met some thugs in a coffee shop in Vinh province. He doesn’t know if they were the same thugs who attacked him on the motorbike. They threatened him, told him not to participate in activities. He got very scared, and moved addresses often.
26.14.In July or August 2012, the applicant’s family received a letter or summons from police requesting the applicant to appear to be interrogated about something, he can’t remember what, something about organising a group. When he was studying the police knew where he lived, but in 2012, they didn’t know where he was living, so sent the summons to his parents’ house. The Tribunal asked the applicant several times to provide more details about what the police summons related to. In time, the applicant said it was about the bloody repression by the Vietnamese government of Catholic people at Con Cuong. He [participated in] a protest at Con Cuong about it in early July 2012, asking the government not to bully the Catholic people. Con Cuong was not a church, but a private residence Catholics used for masses. There were thousands of protesters and many police at the protest. Police beat protesters, but didn’t arrest them. The police knew he was there because he was part of a group of intellectuals the police were aware of; the police checked their activities.
26.15.The applicant doesn’t have a copy of the summons. When his father gave it to him, his father asked him what he wanted to do. The applicant told his father that if he presents himself to police, they will arrest him. He was very scared and after that changed addresses many times, every two to three days, to avoid police. He had 9 addresses between August 2012 and January or February 2013. The summons could have been misplaced during this time. The applicant never went to the police and they never located him.
26.16.After university, the applicant tried to find jobs, but he was always refused. The job application forms always asked for the applicant’s religion; if you identify as Catholic, you won’t be accepted. When he couldn’t get a job, he did private [work].
26.17.Many of the applicant’s friends have been arrested for participating in protests that he was also part of. This has made him very scared about what will happen to him.
26.18.In 2011, the applicant was living mostly in Vinh province by himself. Sometimes he lived with friends, but not frequently.
26.19.The applicant left Vietnam because many of his friends had been arrested and received harsh sentences. He was very scared. He didn’t go to the police when summoned; instead he escaped. He made the decision himself to leave because he was scared that his children would be ashamed of having a father in prison. He was also afraid of being shamed by his in-laws. His own parents and siblings told him to escape if he could.
26.20.Someone helped the applicant get out of Vietnam. He paid USD6000 to bribe officials at the airport so he could leave without any problems. He raised the money from friends and relatives, and selling goods.
26.21.He came to Australia because a friend who he lived with at the priest’s house had become a priest and moved to Australia some years prior. The applicant told the Tribunal his name. He presumes he is an Australian citizen. The applicant met him a few times when he was in Melbourne, but when he moved to Queensland and Darwin, they weren’t in contact often. He last spoke to him one to two years ago. The applicant gave his old lawyer the man’s telephone number, but he doesn’t know if they contacted him, or whether he gave a statement for his first or second SHEV application. He didn’t ask him to be a witness for his hearing; he didn’t think it was needed.
26.22.Since being in Australia, the applicant tried to learn [different] jobs, but couldn’t do it, so went to Darwin to [work]. The [workplace] used to organise a monthly mass, but now he attends church at [a town], about 12 minutes away from where he lives.
26.23.The applicant does not have contact with any of his group members in Vietnam; he talks only to his mother, wife, and son. He doesn’t want to contact others, he wants them to forget about him.
26.24.The Vietnamese government is very clever about tracking people who do not share their ideals, they keep watch, for example Viet Tan members. The applicant was invited to some Viet Tan meetings when he was in Perth and Melbourne; they were voting for leadership roles. He participated, but he felt scared. His wife told him the police visited her home in Vietnam and asked what he was doing. This was a long time ago. The Tribunal noted to the applicant that he had never previously raised this in his material. He said he didn’t think these things needed to be included in his application; he didn’t know it was important. The applicant hasn’t been to any Viet Tan meetings since moving to Darwin.
26.25.The applicant does not use social media. He is very scared of social media because it can be threatening.
26.26.The applicant is sure that if he returns to Vietnam, he will be arrested and jailed for not presenting for the summons, he’ll be declared a traitor, and there’ll be many more accusations. Someone he knows went back to Vietnam for a funeral and he was arrested. He doesn’t know where he would live; he wouldn’t be able to get through the airport. The cities are very dangerous. He didn’t do much work in Vietnam when he was younger and living there; now that he is older, it will be harder for him to find a job. He will always practise his Catholic faith; he had always hoped to become a priest.
Country information

The following are relevant extracts from the UNHCR 2010 Report on International Religious Freedom – Vietnam (covering the period 1 July 2009 to 30 June 2010):
27.1.Respect for religious freedom and practice improved in some regards during the reporting period. However, significant problems remained, including occasional harassment and excessive use of force by local government officials against religious groups in some locations, and delays in approving registrations of Protestant congregations.
27.2.In Nghe An Province, local officials sold a portion of the land on which the disputed ruins of the Cau Ram Church were located, to build an apartment complex. The site had been bombed in 1968, and the provincial government had seized the church in 1996 and converted it to a war memorial to "preserve and protect for future generations the memory of American War Crimes." In May 2010 several thousand Catholics celebrated Mass at the site, as a protest against the government sale of the land for development.
The DFAT Country Information Report for Vietnam dated 31 August 2015 states (inter alia) that:
28.1.[3.17] The government maintains a dedicated police force for monitoring the activities and networks of religious organisations in Vietnam. The force is responsible to the Ministry of Public Security and sets and administers policies for the enforcement of state law against non-registered religious groups who are perceived by the Government of Vietnam to threaten national stability.
28.2.[3.18] In practice, the authorities’ treatment of religious activity varies across Vietnam, particularly for unregistered organisations. Groups that are under surveillance for alleged separatist activities may find administrators more likely to apply more stringent measures, including surveillance and harassment of public religious gatherings.
28.3.[3.19] Broadly speaking, DFAT assesses that as long as religious practice is exercised within state-sanctioned boundaries and does not challenge the interests or authority of the Government of Vietnam—which can be broadly defined and include land use issues—religious adherence in Vietnam is tolerated, even for some religions not officially recognised by the government. There may, however, be restrictions on some activities and the freedom of individuals to travel outside of Vietnam to attend religious festivals and events. There are credible reports of restrictions on the activities of some unregistered groups, including allegations of violence and harassment, which are discussed in more detail in following sections. DFAT is not aware of credible claims of societal abuse or systemic discrimination based on religious practices. Authorities are, however, concerned about the potential for religious groups to be mobilised for political purposes.
28.4.[3.20] People who engage in religious activity which is perceived to actively oppose government policy or pose a threat to the state face a high risk of being subject to close monitoring and government action to curtail their activities. These groups can include those with an anti-government agenda that organise large numbers of people in public spaces or promote civil activism. For example, a Catholic organisation known as the Redemptorists (see below) has attracted attention from authorities for allegedly using religious institutions and instruction to oppose state policies and to raise concerns about corruption. While it is difficult to obtain accurate information on exact numbers, there is credible evidence of dozens of people serving prison sentences for political-religious activities.
28.5.[3.21] DFAT assesses that individuals who participate in unregistered religious organisations which are perceived by the state as being opposed to government policy are highly likely to be monitored, harassed, arrested, detained or prosecuted by authorities.
28.6.[3.22] The Catholic Church is registered in Vietnam and in recent years has had some restrictions on charitable activities lifted. A number of new church congregations were approved in 2013, mostly in the Central and Northwest Highlands areas in response to increased demand from the growing Catholic communities in the area, although many more registration requests are still pending.
28.7.[3.23] Members of independent Catholic groups opposed to government policies have been subject to harassment by authorities. While exact numbers are unavailable, reliable sources suggest that over 30 activists associated with Catholic churches have been arrested since 2011 (out of an estimated Catholic population of approximately 6.5 million). While some have been charged with ‘crimes against the State’, others are yet to be formally charged. According to the 2013 US State Department’s International Religious Freedom report, in July 2013 police forcibly removed a group of Catholics who had been praying in front of a church in Ho Chi Minh City, having travelled from other provinces to worship after land and property had allegedly been seized by local authorities. Several members of the group reportedly required hospitalisation after being beaten by police.
28.8.[3.24] Nonetheless, DFAT assesses that Catholics in Vietnam who worship quietly and in a manner that conforms to government policies and sensitivities are able to do so with a low risk of official interference.
It is not apparent that there have been any reports in recent years of Catholic youth groups being a concern to the Vietnamese authorities. Less recently, according to the Democratic Voice of Vietnam: “Three leading members of the coordinating committee of the Catholic college students in Vinh Diocese were arrested in August 2011 and charged with ‘conducting propaganda against the Socialist Republic of Vietnam’ according to Article 88 of the Criminal Code; and this was said to have occurred: “to stop Catholic college students from conducting after-school religious activities at a private home”.¹
More broadly, and although it is not apparent that those involved were part of any Catholic youth groups per se, there have been regular reports over the years of Catholic activists being charged with various offenses (relating to acting against the state) following involvement with the Viet Tan and/or other political activities, and it would appear that there may have been some instances in which Catholic activist with no apparent connection to the Viet Tan have nonetheless been accused of such an association. Some of these persons have been youths, notably (though less recently) the 14 convicted in 2013 at the People’s Court of Nghe An Province and who were accused of Viet Tan association; with one source² referring to this incident as: “a crackdown on Vietnamese Catholic youth activists”. Among the 14 convicted was Dang Xuan Dieu, who has referred to the trial (in a speech published by Viet Tan) as having “become known as the Vinh trial of Vietnamese Catholic youth”, and who has indicated that he was involved in establishing a centre (the John Paul II Centre to Protect Life in Nghe An) “to provide assistance to youth in the Vinh Diocese and, in particular, university students based in Nghe An and Ha Tinh Provinces”.³ The re-arrest of one of the 14 in January 2017, this being Nguyen Van Oai, saw the Viet Tan publish a statement of support which included the assertion: “We are the Catholic youths that were former prisoners of conscience who maintain our innocence and resist through civil disobedience the arbitrary probation Vietnamese authorities have placed upon us”.⁴
1 'Government Continues to Hamper Religious Activities in the Con Cuong Catholic Community, Nghe An Province', Democratic Voice of Vietnam (DVOV), 05 July 2012.
2 'Vietnamese Authorities Transfer Jailed Blogger Mother Mushroom to Remote Prison', Radio Free Afghanistan, 12 February 2018.
3 'Former prisoner of conscience Dang Xuan Dieu’s speech at the 9th Geneva Summit', Viet Tan, 21 February 2017.
4 'Statement Opposing the Police’s Unlawful Arrest of activist Nguyen Van Oai', Viet Tan, 20 January 2017.
DFAT has reported of Catholics in Vietnam that that: “In general, relationships between the Government and the Church are cordial”; although: “There have been Catholic political movements that attract negative attention from authorities”, and: “Examples include where Catholics are involved in political, human rights or environmental movements”; and: “DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment”; but: “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”.⁵
5 DFAT, “DFAT Country Information Report: Vietnam”, 11 January 2022.
In August 2011 it was reported that Eight Catholics from central Vietnam were arrested after protesting for land rights and circulating a petition to free prominent legal rights activist Cu Huy Ha Vu. It was related that: “They were arrested between July 30 and August 8 in Vinh province, banned political group Viet Tan said”; and: “The arrests represent a new wave of persecution by the newly appointed government, Viet Tan said”.⁶
6 'Vietnam detains Catholic activists', UCA News (UCAN), 11 August 2011.
USDOS reported of 2020 that: “Media sources continued to report tension and disputes between Catholics and authorities in the Vinh and Ha Tinh Dioceses in the central provinces of Nghe An and Ha Tinh, mostly over land disputes or relating to human and environmental rights advocacy activities”;⁷ and of 2019 that: Independent media sources continued to report tension and disputes – at times violent – between Catholics and authorities in the Vinh and Ha Tinh Dioceses in the central provinces of Nghe An and Ha Tinh; and relating (as already noted above) that: On [7 May 2019], Nghe An police arrested Catholic activist and public school music teacher Nguyen Nang Tinh on charges of “making, storing, and spreading information, materials, and items for the purpose of opposing the State”, and on 15 November 2019 Tinh was sentenced to 11 years in prison.⁸
7 '2020 Report on International Religious Freedom: Vietnam', US Department of State, 12 May 2021.
8 '2019 Report on International Religious Freedom - Vietnam', United States Department of State, 10 June 2020.
A number of sources have reported that an incident took place on 1 July 2012 at a Roman Catholic place of worship located in Trung Huong hamlet, Yen Khe commune, in Con Cuong District (with Con Cuong District being located in Nghe An Province; and being part of the Roman Catholic Diocese of Vinh).⁹ The US Commission on International Religious Freedom also refers to how on 3 July 2012 “a mob beat several of those worshipping in Con Cuong, at least one severely”;¹⁰ but this may be a misattribution to 3 July 2012 of events which more broadly are reported to have occurred on 1 July 2012.¹¹
Roman Catholic sources, and some other sources, generally refer to the place of worship in question as a “chapel” or a “mission” or a “mission chapel” (and in what follows the building will be referred to as a chapel for convenience).¹² But the US Commission on International Religious Freedom¹³ appears to be of the view that the building is a private home which was being employed for Catholic worship, and HRW35 likewise refers to: “the house of a Catholic follower in Yen Khe commune, Con Cuong district, Nghe An province”.
With regard to the events of 1 July 2012 at Con Cuong chapel it has been reported that some/many Con Cuong partitioners were detained/arrested at the Con Cuong chapel on 1 July 2012, and that some prosecutions followed in this regard, and that some persons were also summoned by police for questioning (in what might be construed as a response to protest activity which occurred on the day insofar as Con Cuong parishioners and neighbouring parishioners assembled in response to the 1 July 2012 incident).¹⁴ There are also reports of certain prominent Catholic activists being harassed by the authorities over subsequent days,¹⁵ and on 5 July 2012¹⁶ Democratic Voice of Vietnam reported that: “In recent days the Con Cuong government has sent its agents to each Catholic household in the district to intimidate people into signing an agreement not to attend Mass held at the chapel”.
On 15 July 2012 it was reported that: In spite of a massive police presence, and the cancellation of ferries, tens of thousands of Catholics in Vinh Diocese took to the streets…to protest against local government attacks on the Con Cuong parish community.¹⁷ But it is not apparent that any arrests were reported as having occurred during the protests of 15 July 2012.
9 'Report on Violations of Religious Freedoms in Vinh Diocese - Nghe An - Vietnam. To: Special Rapporteur of the United Nations on Freedoms of Religion or Belief', Democratic Voice of Vietnam, 31 July 2014.
10 'U.S. Commission on International Religious Freedom Annual Report Vietnam 2013', United States Commission on International Religious Freedom, United States Commission on International Religious Freedom, 01 January 2013.
11 'Father Nguyen Dinh Thuc: Report the incident that happened at Con Cuong on July 1, 2012', Diocese of Vinh, 14 July 2012; 'Bishop Paul Nguyen Thai Hop of Vinh on an Attack Against Catholics at Mass', Inside Passage, The, 13 July 2012; 'Vinh: Catholics targeted by thugs and authorities. Dozens of faithful injured during ', Asia News IT, 03 July 2012; 'Report on Violations of Religious Freedoms in Vinh Diocese - Nghe An - Vietnam. To: Special Rapporteur of the United Nations on Freedoms of Religion or Belief', Democratic Voice of Vietnam, 31 July 2014.
12 'Father Nguyen Dinh Thuc: Report the incident that happened at Con Cuong on July 1, 2012', Diocese of Vinh, 14 July 2012; 'Bishop Paul Nguyen Thai Hop of Vinh on an Attack Against Catholics at Mass', Inside Passage, The, 13 July 2012; 'Vinh: Catholics targeted by thugs and authorities. Dozens of faithful injured during ', Asia News IT, 03 July 2012; 'Report on Violations of Religious Freedoms in Vinh Diocese - Nghe An - Vietnam. To: Special Rapporteur of the United Nations on Freedoms of Religion or Belief', Democratic Voice of Vietnam, 31 July 2014.
13 'U.S. Commission on International Religious Freedom Annual Report Vietnam 2013', United States Commission on International Religious Freedom, United States Commission on International Religious Freedom, 01 January 2013.
14 'Make Rights a Priority on EU Visit', Human Rights Watch (HRW), 29 October 2012.
14 'Father Nguyen Dinh Thuc: Report the incident that happened at Con Cuong on July 1, 2012', Diocese of Vinh, 14 July 2012; 'Report on Violations of Religious Freedoms in Vinh Diocese - Nghe An - Vietnam. To: Special Rapporteur of the United Nations on Freedoms of Religion or Belief', Democratic Voice of Vietnam, 31 July 2014.
15 'Vietnam - mass protests after government crackdown on Catholic Church', Independent Catholic News (ICN), 15 July 2012.
16 'Government Continues to Hamper Religious Activities in the Con Cuong Catholic Community, Nghe An Province', Democratic Voice of Vietnam (DVOV), 05 July 2012.
17 'Vietnam - mass protests after government crackdown on Catholic Church', Independent Catholic News (ICN), 15 July 2012; 'Flash reports of Catholic prayer vigils throughout Nghe An', VRNs - Vietnamese Redemptorists’ News, 15 July 2012; 'Priests Protest Church Attacks ', Radio Free Asia (RFA), 20 July 2012.
The Department of Home Affairs Common Claims for Vietnam dated 22 June 2023 provide (inter alia) that:
34.1.The degree to which Vietnamese people can freely practice religion varies widely, particularly for the rural and indigenous population. Implementation of the LBR varies significantly across provinces,¹⁸ where by ‘different people of different religions in different areas will also have different experiences, depending on local authorities. Those in cities are less likely to experience official interference’.¹⁹
18 'Country Update: An Assessment of Vietnam's Law on Belief and Religion', United States Commission on International Religious Freedom (USCIRF), 21 November 2019, pp.1,3.
19 'DFAT Country Information Report - VIETNAM - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, p. 14.
34.2.Religious groups involved in human rights advocacy activities or reported to be critical of the government draw attention form the authorities. The Vietnamese government is suspicious of any organised group that may challenge its authority, and continues to closely monitor and disrupt the activities of unrecognised branches of various religious groups.²⁰ Violations have occurred as well as harassment, disruption of services, arbitrary detention,²¹ intimidation and intrusive monitoring, arrest, imprisonment and torture.²² DFAT assesses that those ‘associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism’.²³ Further noted in 2022 by DFAT, ‘[m]any incidents relate to religious groups that are politically active in local land or environmental disputes. It can be difficult to distinguish between religious and political claims. The distinction is not necessarily apparent in the everyday experiences of religious adherents or the authorities, either or both of whom may see religious activity as inherently political’.²⁴
20 ‘Report on Human Rights in Vietnam 2021-2022', Vietnam Human Rights Network, 24 June 2022, p. 53ff; 'Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, p.697; '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.25.
21 ‘Written statement* submitted by Christian Solidarity Worldwide, a non-governmental organization in special consultative status’, Christian Solidarity Worldwide, 17 June 2021 , para.3, p.2.
22 ‘Vietnam: General Briefing’, Christian Solidarity Worldwide, March 2021, p.1.
23 'DFAT Country Information Report - VIETNAM - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, p. 14.
24 ‘DFAT Country Information Report - VIETNAM - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, p. 14.
34.3.Most individuals who depart Vietnam illegally, for the purpose of seeking asylum, are unlikely to be subjected to relevant laws upon return. DFAT is unaware of any cases of relevant legal provisions being used against failed asylum seekers returned from Australia.²⁵ According to DFAT’s 2019 country report for Vietnam, returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of having made an application for protection.²⁶ DFAT’s 2022 Vietnam country report suggests that authorities on occasion question returnees from Australia upon their arrival in Vietnam, with interviews generally taking between one to two hours and conducted to obtain information about the facilitation of any illegal movement on their part.²⁷ DFAT is unaware of any cases in which returnees from Australia have been held overnight for such purposes.²⁸ In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and Vietnam’s Ministry of Public Security which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.²⁹
25 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.29, p.33.
26 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019, p.43.
27 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.31, p.33.
28 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.29, p.33.
29 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019, p.43.
34.4.Activists who return to Vietnam may face ongoing monitoring from authorities. According to DFAT the Vietnamese Government imposes limits on entry and exit for political activists and Government critics through refusing to issue passports.³⁰ The UK Home Office understands that activists who return to Vietnam after seeking asylum overseas may face monitoring, with high-level activists facing more monitoring than low-level activists.³¹ People of particular interest to authorities may be required to have regular conversations or ‘catch ups’ with officials.³²
30 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.25, p.32.
31 ‘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.31.
32 ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 09 September 2019, p.31.
CONSIDERATION OF CLAIMS AND EVIDENCE

The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken into account the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
In particular, the Tribunal notes the following guidelines:
38.1.[6] Evidence considered by the tribunal may include written submissions, an applicant’s oral evidence, oral evidence from other persons, information about conditions and laws in an applicant’s country of origin, expert evidence in the form of written reports or oral evidence and documentary evidence provided by an applicant or the Department of Immigration and Border Protection (the department). Applicants for protection visas are often unable to support claims by documentary or other proof.
38.2.[7] The tribunal is not bound by legal forms and technicalities or the rules of evidence. The tribunal considers all of the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety, not just in isolated parts. The tribunal assesses evidence by weighing up its probative value and relevance to an applicant’s claims. There is no requirement in law that evidence must be independently corroborated before it can be accepted by the tribunal.
38.3.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
38.4.[9] Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
38.5.[10] The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
38.6.[11] In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.
38.7.[27] Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it to assess whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.
38.8.[28] When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.
The Tribunal notes the applicant often did not answer the Tribunal’s questions directly and relevantly; rather, he gave extraneous information resulting in the Tribunal having to re-ask questions multiple times.
The Tribunal notes the applicant’s oral evidence provided considerably less detail than his written statements dated 3 August 2017 and 6 April 2021.
The Tribunal notes the applicant’s statement dated 6 April 2021 contains considerably more detail that his statement dated 3 August 2017. The Tribunal considers that this can reasonably be explained by the fact that the applicant had engaged a lawyer (of RACS) to represent him in relation to his second SHEV application.
The Tribunal notes the applicant did not mention in his oral evidence the name of the high profile Vietnamese Catholic activist, Dang Xuan Dieu, or having any personal association with him despite claiming such in his written statement dated 6 April 2021.
The Tribunal accepts the applicant’s evidence that he was involved in and suffered injuries from a motorbike incident in Vietnam resulting in a lengthy hospital stay and further treatment.
The Tribunal notes there is no medical evidence before the Tribunal regarding the applicant’s injuries or their continuing or residual effects on the applicant. The Tribunal notes the applicant’s evidence that the incident has caused him ongoing memory problems.
The Tribunal considers it is possible the applicant has ongoing memory problems as a result of the motorbike incident.
The Tribunal considers it is likely the lengthy period of time (that is, between 10 and 22 years) since the events the applicant relies on as the basis of his protection claims has to some extent adversely affected the applicant’s memory of those events.
The Tribunal considers the applicant’s oral evidence limited in detail and coherence, thereby diminishing the probative value of his prior written statements.
The Tribunal notes the Catholic priest’s statement dated 24 June 2021 is not signed.
The Tribunal notes the applicant’s evidence that he does not know whether the RACS lawyer contacted the Catholic priest for a statement.
The Tribunal notes the applicant did not request the Tribunal to take evidence from the Catholic priest.
The Tribunal notes the RACS submission dated 24 June 2021 refers to the Catholic priest’s statement.
While the applicant is no longer represented by RACS, the Tribunal is prepared to conclude, based on the RACS submission, that the Catholic priest did provide the statement dated 24 June 2021; and the Tribunal is prepared to accept the statement as corroboration of the following aspects of the applicant’s claims:
52.1.The applicant’s Catholicism throughout the period of his life in Vietnam as well as his ongoing Catholicism in Australia.
52.2.The applicant’s involvement in the university’s Catholic student groups, and through that involvement, having some form of contact with a group led by the high profile Vietnamese Catholic activist, Dang Xuan Dieu.
52.3.The applicant’s unsuccessful attempt to become a priest in Vietnam.
52.4.The applicant’s involvement in setting up [Group 2 – alternative name], however the Tribunal notes that in the applicant’s oral evidence, the applicant gave the name of the group as: [Group 2].
The Tribunal does not accept the Catholic’s priest’s statement as corroboration of the applicant’s personal acquaintance with Dang Xuan Dieu. The Tribunal considers it is likely the Catholic priest relied only on the applicant’s assertions when he stated, “I am aware that [the applicant] was also acquainted with Mr Dang Xuan Dieu during this time” as the Catholic priest was no longer in Vietnam at the time.
The Tribunal considers that given the adverse profile of Dang Xuan Dieu in Vietnam, having been jailed for his anti-government activism, had the applicant been personally acquainted or associated with Dang Xuan Dieu, it is likely he would have considered it significant enough to mention in his oral evidence.
The Tribunal accepts that:
55.1.The applicant was a practising Catholic in Vietnam, and remains so in Australia.
55.2.The applicant wanted to become a priest in Vietnam, however was unsuccessful in the entry exams.
55.3.The applicant was involved in Catholic student groups while at university, and through that involvement, had some form of contact with a group led by the Dang Xuan Dieu.
55.4.After finishing university, the applicant organised a group for former Catholic students in Vinh province.
Based on the country information, the Tribunal is prepared to accept that the applicant was questioned by police on one occasion in 2001 about the activities of the Catholic student group he was involved in.
The Tribunal notes the applicant’s evidence regarding the timing of and circumstances surrounding the confiscation of the [Location 2] church land is inconsistent with the country information.
The Tribunal considers there is no credible evidence before it to conclude that the applicant was interrogated by police for participating in prayers and a pilgrimage in relation to the confiscation of the [Location 2] church land.
The Tribunal considers there is no credible evidence before it to conclude that the motorbike incident was a targeted attack on the applicant by individuals acting on behalf of the Vietnamese authorities or police.
The Tribunal considers it is likely the motorbike incident was a random attack on the applicant.
The Tribunal considers the applicant’s evidence regarding his encounter with thugs in a coffee shop too vague and lacking in detail to be of any probative value.
Based on the country information, the Tribunal is prepared to accept that the applicant was somehow involved in the protests against the local government attacks on the Con Cuong parish community in July 2012. The Tribunal notes from the country information that tens of thousands of Catholics in Vinh Diocese took to the streets on 15 July 2012 and there was a massive police presence, however it’s not apparent that any arrests were reported as having occurred.
The Tribunal notes the applicant does not claim to have been at Con Cuong when the attacks occurred on 1 July 2012. The Tribunal therefore does not consider relevant in the applicant’s circumstances the country information regarding the arrest and detention of Con Cuong partitioners on that day, the prosecutions that followed, and the instances of some persons being summoned by police for questioning and certain prominent Catholic activists being harassed by authorities.
The Tribunal notes the applicant’s reluctant and confused evidence in relation to the letter or summons he claims the police sent to his parent’s house.
The Tribunal considers there is no credible evidence before it to conclude that the applicant was summoned by police for questioning in relation to the Con Cuong protests or for any other reason.
The Tribunal considers it is likely the applicant was and remains traumatised by the motorbike incident and the injuries he suffered.
The Tribunal considers the applicant genuinely but mistakenly believes that the motorbike incident was a targeted attack on him by the Vietnamese authorities or police for his involvement in Catholic student groups and activities, and it is likely this genuine but mistaken belief is the foundation of his fears about returning to Vietnam.
The Tribunal considers the applicant’s evidence regarding the bribe paid to Vietnamese airport officials, the amount, and how he raised the money for the bribe vague and lacking credibility. The Tribunal further considers that even if a bribe had been paid, there is no evidence before it that the bribe was necessary to avoid adverse attention from the Vietnamese authorities such as to prevent his departure from Vietnam.
The Tribunal does not consider the applicant’s Catholicism and attempts to join the priesthood, his low profile involvement in Catholic student groups and activities over the years 2001 to around 2005 or 2006, his questioning by police in 2001, and his participation in a mass protest in 2012 marked him or continues to mark him as a person likely to be of adverse interest to the Vietnamese authorities.
The Tribunal notes the applicant’s oral evidence that he attended some meetings of the Viet Tan in Perth and Melbourne. The Tribunal further notes the applicant’s written evidence that he was too afraid to join the Viet Tan because it might affect his family in Vietnam, and it would put his safety at more risk if he returned to Vietnam.
The Tribunal notes the applicant’s oral evidence that the police visited his wife in Vietnam and asked questions about what he was doing after he attended Viet Tan meetings in Australia.
The Tribunal considers this a new claim not previously raised; and, having given the applicant the opportunity to explain why he had not previously raised the claim, the Tribunal considers his response that he didn’t know it was important lacks credibility in light of the entirety of his evidence and is not a reasonable explanation as required by s 423A(2) of the Act.
The Tribunal does not consider the applicant’s limited attendance many years ago at Viet Tan meetings in Australia marks him as a person likely to be of adverse interest to the Vietnamese authorities.
The Tribunal notes the applicant’s evidence that he does not use social media.
The Tribunal considers there is no evidence before it that the applicant is being monitored by the Vietnamese authorities.
The Tribunal notes in particular the following recent country information:
76.1.It is not apparent that there have been any reports in recent years of Catholic youth groups being a concern to the Vietnamese authorities.
76.2.There have been regular reports over the years of Catholic activists being charged with various offences following actual or perceived involvement with the Viet Tan and/or other political activities, including Dang Xuan Dieu convicted in 2013.
76.3.There have been Catholic political movements that attract negative attention from authorities, for example where Catholics are involved in political, human rights or environmental movements.
76.4.DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment, but 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.
The Tribunal considers there is no credible evidence before it that:
77.1.The applicant was or was perceived by the Vietnamese authorities to be a Catholic activist involved in the Viet Tan and/or other political, human rights or environmental activities or movements.
77.2.The applicant was or was perceived by the Vietnamese authorities to be involved in or connected with the activities of Dang Xuan Dieu.
77.3.The applicant was, at the hands of the Vietnamese authorities, subjected to targeted serious harm for any reason or otherwise subjected to significant harm such as to engage Australia’s protection obligations.
The Tribunal notes the recent country information reports that most individuals who depart Vietnam illegally, for the purpose of seeking asylum, are unlikely to be subjected to relevant laws upon return. DFAT is unaware of any cases of relevant legal provisions being used against failed asylum seekers returned from Australia. Authorities on occasion question returnees from Australia upon their arrival in Vietnam, with interviews taking between one to two hours and conducted to obtain information about the facilitation of any illegal movement on their part. DFAT is unaware of any cases in which returnees from Australia have been held overnight for such purposes.
The Tribunal considers it is possible the applicant would be questioned for one to two hours upon his arrival in Vietnam to ascertain his involvement in any illegal movement. The Tribunal notes there is no evidence before it that the applicant has been involved in any illegal movement.
The Tribunal notes there is no country information indicating that Catholics in Vietnam who are not, or who are not perceived by the Vietnamese authorities to challenge the authority or interests of the CPV and its policies, are discriminated against in employment.
The Tribunal considers it is possible the applicant would experience difficulties finding employment if he returns to Vietnam, however it is likely those difficulties are experienced by Vietnamese men of his age and background as a whole.
The Tribunal notes the applicant’s evidence that he will always continue to practise Catholicism.
The Tribunal considers it is likely that if the applicant returns to Vietnam, he would continue to practise Catholicism as he did in the past. The Tribunal further considers that, given the applicant’s age, it is unlikely he would be involved in Catholic student groups, however it is possible he would involve himself in the activities of his local parish.
The Tribunal considers it is unlikely the applicant would be involved in activities that would, or would be perceived to challenge the authority or interests of the CPV and its policies, through Catholic and/or political activism or otherwise.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
86.1.The applicant is a citizen of Vietnam and a non-citizen in Australia.
86.2.The applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
86.3.If the applicant is returned to Vietnam, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
86.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISIONS
The Tribunal affirms the delegate’s decision dated 26 April 2018 to refuse to grant the applicant a SHEV (Tribunal review case number 1905046).
The Tribunal sets aside the delegate’s decision dated 15 February 2022 to refuse to grant the applicant a SHEV (Tribunal review case number 2202283) and substitutes it with a decision that the associated SHEV application was not valid.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.

[2023] AATA 4686

14 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Natural Justice