1905164 (Refugee)

[2023] AATA 459

1905164 (Refugee) [2023] AATA 459 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kate Khanh Hoang

CASE NUMBER:  1905164/2109961

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Nora Lamont

DATE:24 January 2023

PLACE OF DECISION:  Brisbane

DECISION:            The Tribunal remits the following matters for reconsideration:

a.  matter 1905164 Safe Haven Enterprise visa application made on 29 July 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

b.  matter 2109961 Safe Haven Enterprise visa application made on 09 October 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 24 January 2023 at 9:44am

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – illegal departure – police assault on church meeting – protests in Australia fear of arrests – social media postings – household registration – internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 65, 91, 195, 411, 499
Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 29 July 2016 and

   
   

   9 October 2020. The delegate refused to grant the visa on the basis that they found some details in the applicant’s claims were not credible.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’

   
   

   (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

   The applicant made a valid application for review on 29 July 2016 and 9 October 2020.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF Claims and evidence

10. The applicant attended a Tribunal Hearing on 9 December 2022 where he gave evidence and presented arguments. He was assisted in giving evidence by an interpreter in the Vietnamese and English language.

11. The applicant was represented in relation to his review and his representative attended the hearing via video link from NSW.

12. The applicant is [an age]-year-old male who claims to have been born in Vietnam and claims to be a Vietnamese national. The applicant arrived without a passport or any valid documentation when he arrived by boat in 2013. The Department found the applicant to be a Vietnamese citizen and the Tribunal has also assessed his claims against Vietnam as his country of reference.

13. There are no non-disclosure certificates on the applicant’s file.

14. This is a review of an application made for an XE-790 Safe Haven Enterprise Visa (SHEV) on 29 July 2016 and 9 October 2020.

15. The applicant’s migration history is as follows: [1]

    [1] [File numbers] 

06/06/2013	Attended arrival interview
10/02/2014	Some personal details of the applicant were included in an inadvertent release of information regarding persons held in immigration detention on 31/01/2014 (2014 data breach)
[January] 2015	s195A bar lifted, UJ449 and WE050 (BVE) visas granted, applicant released from detention
29/07/2016	Application for a SHEV lodged (first SHEV application)
23/03/2018	SHEV refused
11/05/2018	Review by Independent Assessment Authority (IAA) completed – refusal affirmed.7
04/06/2018	Judicial review in the Federal Circuit Court (FCC)
06/08/2018	Federal Court handed down the judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. The applicant is affected by this court judgment
04/12/2018	Judicial review result – Minister withdraw
15/02/2019	Following DBB16 outcome, applicant re-notified of refusal decision and advised of review rights with the Administrative Review Tribunal (AAT).9 No AAT review requested within statutory timeframes.
16/10/2020	Minister lifts s91L/48B bar
09/10/2020	Application for a SHEV lodged (second SHEV application)

1. The applicant’s claims have been consistent since he first arrived in 2013 and are summarised as follows: [2]

   ·His mother died when he was [age] years old leaving him an orphan.

   ·His neighbours took him in as he did not know his father and he called the neighbours Aunty and Uncle.

   ·He dropped out of school in [grade] as he needed to work in the rice fields with Aunty and Uncle.

   ·He is Catholic and baptised and had his confirmation in 2008. He was an alter boy at the church in his village.

   ·The authorities came into the village catholic church whilst the applicant was in there worshipping and beat the parishioners, arrested some and the applicant fled.

   ·He hid for over 9 months afraid he would be arrested. He did return home and got food and his Aunty and Uncle told him they would send him to Australia.

   ·Since he has been in Australia the applicant continues to practice his catholic faith and has attended protests against the Vietnamese government.

   ·If he is returned, he will be arrested for being Catholic, being on the list from the incident at the church, for his pollical opinion and for leaving the country illegally by boat.

   [2] [File number] & AAT Folio

   Tribunal Hearing

2. The applicant first arrived by boat in Darwin in April of 2013 as a minor and is now [age] years old. The applicant never knew his father and when he was [age] years old his mother died leaving him an orphan. His neighbours took him into their care, and he lived with them until he came to Australia. He had to help the neighbours in the rice fields and left school in [grade].

3. I asked the applicant if everything in all of his applications was true and correct and he said all his applications were true and RAILS had assisted him. He said he lives in [Suburb 1] and is [an occupation 1] for a [company]. He has been working with this company for the past 2 years and they work on [specified projects].

4. I asked him why he chose to come to Australia, and he said that his uncle and aunty (neighbours) told him about Australia, and he knew it was a free country. I asked him if his mother ever talked about his father, and he said she never said anything about him. I asked if she ever talked about other relatives? Did she talk on the phone to people? He said he didn’t know.

5. We discussed the applicant being a Catholic and he said he was baptised when he was [age] years old. I asked if he made his confirmation and he said he did in 2008 at the village church called [name]. He said he went to mass on Sundays and sometimes attended the church on Saturdays. He was an alter boy as well. He said his mother was religious as were the neighbours who took him into their care. He said the church was a basic country church there was no Catholic school or anything like that. He maintains his religion and attends [a named] church here in Australia.

6. I asked him if he would be celebrating Christmas and he said [Suburb 1] had a Vietnamese Catholic community and they would be having midnight mass. He said he made a lot of friends in the parish.

7. He said in July 2012 they held a vigil to pray for peace after the incident. The authorities stormed the church forcing everyone to disperse. He disagreed with having to leave so he remained in the church, and he was hit in the back. He said it was chaotic and then out of nowhere he was hit. He said it was both the police and the military. I asked if this had ever happened before, and he said no. He said people were being pushed into police vans. He took off and started running he ran away for 9 months. I asked him what he meant by 9 months and did he return to his neighbours. He said yes, he went back to the neighbours, but he lived on the edge of the village as he was so scared.

8. The applicant said his name was on a list. I asked how he knew he was on a list? He said people told him and he didn’t keep in contact with these people as he was scared of being arrested. I told the applicant I was unable to locate any documentation of this happening. He said they don’t publish these things as there is religious oppression.

9. He said his aunty and uncle helped him while he drifted around by giving him food and told him the police had come by looking for him. I asked him whose idea it was for him to come to Australia, and he said it was his aunty and uncles’ idea. They organised for him to go on the boat and his uncle said it cost $[amount] USD and he was told by his uncle he could repay him one day.

10. I asked him why they didn’t come themselves but sent him? He said because his life was in danger. I asked him if he sent money back to them and he said he did. I told him he sent $[amount] AUD back to his uncle and he said he did, he wanted to repay them and more. We discussed why the name of the person he sent the money to wasn’t the name of his uncle. He said his uncle instructed him to send it under that name. He said he kept sending money as they said they would send his birth certificate, but they never did so he stopped talking to them in 2017. He said that the Department thought it was his father or his uncle. He said he doesn’t know anything about his father.

11. The applicant said that he has attended protests here in Australia and travelled to Canberra for the protests with the Vietnamese community. He also attended a political rally in Queensland
    in 2017. It was a 30 April rally about the fall of Saigon. He said he went because he lived in Vietnam and witnessed the injustice and he wanted to participate.

12. He said he sometimes posts on social media like after the late Presidents death who was hated by the community. He said they actively monitor people’s Facebook pages and people could be arrested for posting. He said that they would have seen him in Canberra and they would detain him. He said they would incarcerate him, and he left illegally by boat. His auntie and uncle told the authorities that he was in Australia, and he can never go back.

13. I told him I was still processing why his uncle used a fake name when he sent him money.  He said he doesn’t have answer he is very disappointed, and he doesn’t feel like contacting them again as they cheated and scammed him.

14. I asked him what would happen to him if he went back, and he said he would be arrested.

15. I read the following information to the applicant from DFAT: [3]

    Catholics 3.22 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.

    3.30 In-country sources told DFAT Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination. 3.31 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. 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. See Political Opinion (actual or imputed). [4]

    [3] DFAT Country Information Report Vietnam 2022

    [4] Ibid

16. The applicant responded that in the countryside oppression occurs. I asked him if we had covered all his claims and he said that he has three different interviews, and no one believe it was true and what he said has been the truth. He said his education level is quite low and he asked me to look at this through his eyes.

    Country Information

17. DFAT reports the following country information: [5]

    [5] DFAT Country Information Report Vietnam 2022

    RELIGION

    3.16 Officially, Vietnam is an atheist state. Article 24 of the Constitution states, however, that all people have the right to freedom of belief and religion, including the right to follow any religion or to follow no religion; that all religions are equal before the law; and that no one has the right to infringe on the freedom of belief and religion or to take advantage of belief and religion to violate the law. These constitutional rights are conditional on law and The Penal Code (2015) establishes penalties for practices that, in the view of authorities, undermine peace, national independence and unity.

    3.17 According to the 2019 Annual Report of the United States Commission on International Religious Freedom (USCIRF), government-recognised religions/faiths in Vietnam numbered 43 religious organisations from 16 religious traditions, representing more than 25 million followers in total. These traditions included: Buddhism, Hoa Hao Buddhism (see Buddhists), Catholicism (see Catholics), Cao Dai (see Cao Daists), Protestantism (see Protestants), Islam, the Baha’i faith, Mormonism (Church of Jesus Christ of Latter-Day DFAT Country Information Report VIETNAM (December 2019) 20 Saints), Khmer Brahmanism, Hieu Nghia Ta Lon Buddhism, Vietnam Adventist Church; as well as Buu Son Ky Huong, Tinh Do Cu Si Phat Hoi, Tu An Hieu Nghia, Phat Duong Nam Tong Minh Su Dao, and Minh Ly Dao Tam Tong Mieu (the last five are all domestic practices); and officially atheist. Three additional groups – the Assemblies of God, Ta Lon Dutiful and Loyal Buddhism, and Vietnam Full Gospel Church – are ‘licensed for religious operation’ but are not recognised as official organisations. Differing slightly, the Vietnam Government’s National Report to the 2019 HRC UPR process noted its recognition of the legal status of 42 religious organisations affiliated with 15 religions. These statistical differences may be attributed to the Government recognising in addition one dharma practice (a set of spiritual practices); the Vietnam Adventist Church being included within the Protestant tradition; and the time-lag between applying for registration and licencing. As noted in 2.7, other religious groups present in Vietnam include small communities of Hindus, Falun Gong followers, Muslims, Jehovah’s Witnesses and a mostly foreign Jewish population.

    3.18 Some Buddhist, Protestant, Hoa Hao, and Cao Dai communities choose not to participate in officially recognised religious organisations and instead belong to independent organisations that also claim to represent the religion. There is a considerable difference in the treatment by authorities of official and independent religious groups. For the most part, religious followers belonging to officially recognised religious organisations are able to practise their faith without significant interference, regardless of which particular religion they may follow. Those associated with independent organisations, however, are less likely to be able to do so (as outlined in this section). There is also a difference in treatment according to location: whereas religious followers in urban, economically developed areas are generally able to exercise their religion or belief freely, religious communities in rural parts of some provinces are more likely to face restrictions and/or harassment. This is particularly the case for religious followers in ethnic minority areas, where ethnic, political, and religious issues frequently overlap (see also Race/Nationality).

    3.19 USCIRF has classified Vietnam as a ‘country of particular concern (CPC)’ since 2002, which defines it as ‘a country that commits systematic, ongoing, and egregious violations of religious freedom’. Human rights observers reported an overall decline in the situation for religious groups in 2017 and 2018, particularly for followers of independent religious groups. Religious leaders representing independent groups have reportedly faced various forms of official harassment, including physical assaults, arrests, prosecutions, monitoring, travel restrictions, property seizure or destruction, and denials of registration and/or other permissions. Followers of independent religious groups have reportedly been subjected to public criticism, forced renunciation of faith, detention, interrogation, torture, and imprisonment. International observers also reported an increase in acts of violence against religious groups (including registered groups) in 2017 and 2018 by police and plainclothes individuals, including some working closely with or representing authorities.

    3.20 A new Law on Belief and Religion (2018) came into effect in January 2018, superseding a number of existing regulations, decrees, policies and practices overseeing religion. The law nominally obliges the government to protect religious freedom, gives Vietnamese religious organisations the right to legal personhood, and has eased some operational bureaucracy for registered religious organisations, reducing considerably the waiting period for applications (from 23 years to five years). The new law also requires all religious groups to register with the Government Committee for Religious Affairs and to report on routine religious activities, including festivals and conferences. The implementing regulations, which came into force in June 2018, impose fines on organisations deemed to ‘abuse religion to infringe upon the interests of the state or engage in fabrication or slander’. Human rights organisations have raised concerns that these provisions are overly vague, and potentially enable authorities to arbitrarily punish religious groups.

    3.21 Civil society organisations report that some official religious groups have found it more difficult to obtain government approval to conduct routine activities since the new Law on Belief and Religion came into effect. In January 2018, for example, authorities in Quynh Ngoc Province cited the new law to declare a Catholic Mass illegal because the priest had not registered the meeting, while authorities in Quang Binh DFAT Country Information Report VIETNAM (December 2019) 21 Province banned a Catholic priest from making home visits to conduct prayer services, which he had been doing since 2014. By criminalising activities not officially approved in advance, the new law has had a particularly deleterious impact on independent groups. On a number of occasions in 2018, authorities used the new law to justify prohibiting informal religious activity that the previous legal framework had tolerated (if not endorsed). Local authorities have also reportedly used the new law as justification for seizing religious sites and temples associated with independent religious groups.

    3.22 DFAT understands that there have been instances in which national policies have not been efficiently communicated to and/or consistently implemented by local authorities, leading to negative treatment for religious groups. For example, multiple cases were reported in 2018 in which local authorities seized property from religious groups for economic development, without providing the groups adequate compensation. In some cases, central authorities intervened and mediated property disputes on behalf of religious groups.

    3.23 Local authorities in the Central Highlands have reportedly refused to issue identity cards, household registration and birth certificates to approximately 2,000 Protestant Montagnard and Hmong households (around 10,000 individuals), leaving them effectively stateless. In-country sources advise that, in many cases, the local authorities’ refusal to issue the documentation is in retaliation for individuals rejecting official requests to renounce their faith.

    3.24 DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from authorities, although they may still face discrimination from local and provincial authorities. Adherents associated with independent 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.

    Catholics

    3.32 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. Authorities do not, however, permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytisation.

    3.33 Unlike other religions, there are no independent Catholic organisations claiming to represent Vietnamese Catholics. There has, however, been a rise in the number of independent ‘house churches’ in locations where Catholic parishes have faced difficulties in registering with provincial authorities, due in part to inconsistent enforcement of national laws. These parishes are generally in remote areas and/or areas with majority ethnic minority populations, with the most problematic regions reportedly in the Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong Provinces), the Northwest Highlands, and Hoa Binh Province. Human rights observers report that these house churches face constant surveillance by authorities.

    3.34 The Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances. In the aftermath of the Formosa environmental disaster of 2016 (see Recent History), Catholic priests in Nghe An and Ha Tinh Provinces were active in organising demonstrations in response to pollution and high volumes of fish deaths, and assisted parishioners to file lawsuits against the government for financial compensation. Catholic priests were also among the most vocal critics of draft laws on cybersecurity and special economic zones in June 2018 (see Political Activists). For example, the Federation of Vietnamese Catholic Mass Media criticised the Cybersecurity Law’s lack of privacy protections, and claimed it had reduced online traffic to Catholic websites DFAT Country Information Report VIETNAM (December 2019) 23 (see also Media). Authorities responded by arresting several Catholic activists, while others reportedly went into hiding or fled the country.

    3.35 Throughout 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, human rights observers reported a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by both plainclothes individuals and members of the Red Flag Association, a highly organised pro-government militant group that has typically worked with or under the direction of local authorities. For example, a violent clash broke out in December 2017, between Catholic parishioners and plainclothes individuals regarding the construction of a new chapel in Vinh Diocese. State media reported that parishioners assaulted police, while social media reported plainclothes individuals assaulted parishioners under local authority directives. Human rights observers reported several other violent incidents involving Red Flag members throughout 2017 and 2018, including other attacks in Nghe An and Dong Nai Provinces. International observers reported that the Red Flag Association self-dissolved in 2018 and is no longer active.

    3.36 The Catholic community has also been significantly affected by ongoing incidents of land appropriation and destruction of property in a number of locations, including Hue, HCMC, Da Nang, and Hanoi. In January 2019, for example, HCMC authorities reportedly demolished at least 112 residential properties on land claimed by the Catholic Church.

    3.37 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    3.46 As noted in Political System, Article 4 of the Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, and there are very few formal avenues for political participation for non-members. The structure of Vietnamese society strongly favours those with CPV ties. After the Vietnam War, trusted CPV members and their families were awarded with prime positions, while Vietnamese previously allied to the US were punished and their children denied opportunities. The importance of CPV membership and loyalty for social and professional advancement endures in current Vietnam. For example, the CPV continues to prohibit membership if one’s parents (or those of a spouse) worked in the Saigon government or ‘armed forces of the enemy.’ Around three-quarters of the current government’s cabinet is from northern Vietnam, with the remainder from the southern and central provinces. The increasingly important private sector, however, is creating alternative pathways to social and professional advancement for non-party members.

    3.47 Opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. The Vietnam Reform Revolutionary Party (known as Viet Tan) is a US-based opposition group (also with an active branch in Australia) which advocates for democracy in Vietnam. It is considered a terrorist organisation by the Vietnam government. Members of other foreign-based opposition groups, such as the Brotherhood for Democracy, have also been accused of carrying out activities aimed at overthrowing the government. The Brotherhood for Democracy is reported to have funding links to Viet Tan (see Political Activists).

    3.48 Vietnam has made some steps towards greater openness and transparency, and authorities have tolerated criticism of government in some instances. There are limits to dissent, however, and no signs that the CPV is willing to loosen its monopoly on power. Individuals can incur long prison terms for breaching broad national security provisions. A range of high-profile arrests and trials over the recent years have attracted international criticism of Vietnam's one-party political system and its management of freedom of expression of political views and human rights (see Political Activists and Media). Political Activists

    3.49 The Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration. These rights are restricted, however, by a number of ‘national security’ provisions within the Penal Code, namely: Article 109 (‘overthrowing the State’); Article 117 (‘conducting propaganda against the State’); and Article 331 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’). These provisions take precedence over constitutionally enshrined rights in practice, and are commonly applied to activists. The penalties mandated by the provisions remain unchanged, ranging from prison sentences of between six months and 20 years, to life imprisonment or capital punishment (see Death Penalty). Official approval is required for all public gatherings, and authorities routinely deny permission for meetings or marches considered politically sensitive. Police and other security authorities routinely use excessive force to disperse unauthorised demonstrations (see Police).

    3.50 Despite legal restrictions and often-severe responses from authorities, citizens do continue to protest, generally in relation to single issue, livelihood-related issues, or occasionally in relation to anti-Chinese sentiment. Hundreds of residents from the central provinces protested regularly in the months following the 2016 Formosa disaster (see Recent History), with some protesters reportedly beaten and arrested by police. Police also reportedly stopped some protesters from marching from central Nghe An Province to Ha Tin Province to submit their compensation claims. Activists and their families in Nghe An Province reported an increased incidence of harassment and assault by local authorities in relation to the Formosa disaster protests. DFAT Country Information Report VIETNAM (December 2019) 26

    3.51 Large-scale protests occurred on an unprecedented scale in June 2018 in a series of demonstrations in major cities. Thousands reportedly demonstrated in HCMC, Hanoi, Nha Trang, Binh Thuan Province, and other areas against a proposed special economic zone, with some also protesting against a new restrictive cyber security law (see Media). Police in HCMC reportedly beat and detained around 180 people at a stadium, including individuals who were not activists, while civil society organisations reported that plainclothes police officers also beat protesters. By November 2018, at least 127 people were reported to have been arrested and convicted for their participation in the protests. Many protesters subsequently released by police claim to have been mistreated, harassed, assaulted, and detained in relation to the protests in HCMC.

    3.52 Low-level protests also occur periodically over land use and compulsory official land acquisition, occasionally involving violence. Under both the Constitution and the Land Law (2013), all land in Vietnam is formally owned by the State, which issues land use rights to individuals or organisations but retains the right to acquire it compulsorily at any time. The Housing Law and Real Estate Business Law (2014) stipulates that land can only be acquired by government if considered necessary for socioeconomic development that is in the public or national interest. The definition of ‘socioeconomic development’ is ambiguous, however, leading to numerous disputes over land use rights. In one such incident in April 2017, villagers in the Dong Tam commune on the outskirts of Hanoi reportedly detained 38 police officers for one week during a land dispute. The standoff ended after the Hanoi mayor committed to not filing criminal charges against protesters, and to investigating land management in Dong Tam and allegations of police injuring the village leader during the protests.

    3.53 Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include: - In February 2018, a prominent advocate for workers’ rights was sentenced to 14 years’ imprisonment in Nghe An Province for 'resisting persons in the performance of their official duties' (Article 330 of the Penal Code) and for crimes committed under Article 331. The activist sentenced had written about the impact of the Formosa disaster, highlighting the effects on local fishermen and assisting them in seeking justice and compensation; - In April 2018, an anti-corruption and land rights activist in Thai Binh Province was sentenced to thirteen years’ imprisonment, to be followed by five years’ probation, after being convicted of crimes committed under Article 79 after a trial that lasted only hours. The activist, a member of the Brotherhood for Democracy (see Political Opinion (Actual or imputed)), had published articles denouncing the authorities for corruption and abuses of human rights; - In August 2018, a human rights and environmental activist from Central Vietnam was convicted of crimes under Article 79 and sentenced to 20 years in prison and 5 years’ house arrest, the longest sentence recorded in years for national security crimes. The activist had joined campaigns in support of prisoners of conscience, had used social media to share information about human rights violations, and had campaigned for compensating fishermen affected by the Formosa disaster. During his trial, state media highlighted his affiliation with the Viet Tan organisation (see Political Opinion (Actual or imputed)). The sentence handed down was three years longer than that requested by the prosecutor, with the court adding more time to the sentence because the activist remained silent during his trial and did not admit any crimes. - In November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist. DFAT Country Information Report VIETNAM (December 2019) 27 - In November 2019, a prominent activist was taken into custody upon their arrival at Hanoi International Airport and was released after eight hours of questioning. The activist had left Vietnam in May 2016 to work for a Vietnamese civil society organisation, which campaigns for human rights in Vietnam from abroad.

    3.54 In a number of cases, authorities have released activists from prison and forcibly deported them from Vietnam. In May 2017, for example, authorities revoked the citizenship of a Viet Tan member and forcibly deported him to France. In June 2018, a Brotherhood for Democracy leader and his assistant were released from prison in Vietnam and deported to Germany, after having been sentenced in April 2018 to 15 and 9 years’ imprisonment respectively. Conversely, human rights observers report that in other cases authorities have confiscated the passports of activists in order to prevent them from travelling abroad, or have imposed restrictions on their domestic travel within Vietnam. Authorities have also subjected prominent activists to house arrest at sensitive times, including during state visits by foreign leaders. In July 2017, Germany publicly accused Vietnam of abducting an asylum-seeking senior Vietnamese official from Germany and forcibly returning him to Vietnam, after he had fled in 2016 amid accusations of economic mismanagement and had been dismissed from Vietnam’s National Assembly. He was later sentenced to life imprisonment.

    3.55 Human rights observers report that lawyers who represent political activists often face harassment from authorities to drop cases. Those who do not do so reportedly face restrictions on their ability to practise, which in some cases can lead to disbarring, arrests and detention. Many lawyers are therefore reluctant to accept these cases.

    3.56 DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation, and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.

1. Country information supports the applicant’s contention that Catholics, and Catholics who are antigovernment are at high risk from the authorities.

   Findings

2. The applicant has been consistent since his arrival at a young age in 2013. He has maintained the core of his claims and has not deviated from them. Given that the applicant was a very young minor when he arrived alone, I have given him the benefit of the doubt when it comes to any inconsistencies in his claims. I also note that the applicant has been through multiple interviews and maintained consistency throughout.  I accept the following claims:

   ·

   Despite having no documentation, after questioning the applicant I accept he is a Catholic baptised and confirmed and that he still practices his faith here in Australia.

   
   

   I accept based on the applicant’s oral evidence and country information that Catholics in rural locations throughout Vietnam are persecuted and Vietnam is an atheist state. 

   ·I accept that his mother died when he was [age] years old, he never knew his father and he went to live with the neighbours whom he called Aunty and Uncle. He came to Australia all by himself on a boat with only a birth certificate which the smugglers took from him. He has no family, and no one to care for him in Vietnam.

   ·I accept that the applicant was poor and uneducated. I accept that he did not understand process in Australia or even speak English when he arrived, and at the same time he was young and alone.

   ·I accept that the applicant has participated in antigovernment protests and posted online. I accept that this may cause him harm upon return to Vietnam based on his political opinion. He also cannot return given he has no household registration; relocation is difficult, and he had no documentation or family.

   ·I further accept that the applicant sent $[amount] to his Aunty and Uncle and that he felt he was scammed by them as he had asked them to provide him with documentation which they said they would, but they did not. As for the name change for his uncle, I do not believe it is actually his father or Uncle by blood but rather the neighbour and that he told the applicant to send the money using that name. Either way, the applicant has not sent any further money or made contact with them since 2017.

   Conclusion

3. The issues in this case are whether Australia has protection obligations with respect to the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

4. The Tribunal finds that the harm feared by the applicant is from government authorities and that it amounts to serious harm as described in s 5J(5). The Tribunal is further satisfied that the essential and significant reason for the harm feared is the applicant’s religion and his political opinion and that harm is systemic and discriminatory.

5. Given that the applicant fears the government overall, which exists nationally and throughout Vietnam and given current country information the Tribunal finds that there is no effective state protection available to the applicant from the harm feared. For these reasons the Tribunal is also satisfied that the real chance of persecution relates to all areas of Vietnam as required by

   
   

   s 5J(1)(c) of the Act. DFAT Country Information indicates relocation is not an option:

   5.23 DFAT assesses that the strong and effective Vietnamese public security network means that there are few options for internal relocation to seek protection from state authorities.

6. For these reasons the Tribunal finds that the applicant faces a well-founded fear of persecution on return to Vietnam for his religion as a Catholic and for his political anti-government opinion.

7. The Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s 5J of the Act. In accordance with s 5H(1)(a) of the Act the Tribunal is satisfied that the applicant is outside their country of nationality and owing to a well-founded fear of persecution, is unwilling to avail himself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H (2) apply to the applicant. The Tribunal finds therefore that for purposes of s 36(2)(a) of the Act, the applicant is a refugee.

8. As the Tribunal has found that the applicant is a refugee it has not gone on to consider the alternative criterion.

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

   DECISION

   The Tribunal remits the following matters for reconsideration:

   a.matter 1905164 Safe Haven Enterprise visa application made on 29 July 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

   b.matter 2109961 Safe Haven Enterprise visa application made on 9 October 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Nora Lamont
   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.

   …