1905177 (Refugee)

[2023] AATA 3990

1905177 (Refugee) [2023] AATA 3990 (16 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1905177 and 2118631

COUNTRY OF REFERENCE:                   Vietnam

CASE NUMBER:  2018016

COUNTRY OF REFERENCE:                   Vietnam

REPRESENTATIVE:  Ms Nhi Huynh (MARN: 1069190)

MEMBER:Paul Windsor

DATE:16 August 2023

PLACE OF DECISIONS:  Melbourne

DECISIONS:

CASE 1905177: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

CASE 2118631:  The Tribunal sets aside the decision to refuse the visa application and substitutes it with a decision that the visa application is invalid.

CASE 2018016

APPLICANT 1:  The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

APPLICANT 2:  The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b) of the Migration Act.

Statement made on 16 August 2023 at 2:27 pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – combined hearing of separate applications by husband and by wife and child – political opinion and religion – church youth group leader – monitoring by local authorities and harassment and abuse by police – two unlawful departure attempts – interrogated and threatened but not harmed – lawful departure and unlawful maritime arrival – association with organisations and individuals and protest and social media activity in Australia – some protest activity by wife, otherwise reliance on husband’s claims – country information – active monitoring by government – organisation classified as terrorist – one associate jailed in Vietnam – husband’s arrival at Ashmore and Cartier Islands – statutory bar does not apply – first application not invalid therefore second application invalid – decisions under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H(1)(a), 5J(1), 48A, 36(2)(a), (b), 65, 91K, 427(2)
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISIONS AND REASONS

APPLICATIONS FOR REVIEW

1. This statement of decisions and reasons is regarding applications for review of the following three decisions: a decision made by a delegate of the Minister for Immigration and Border Protection on 8 May 2017 (the first protection visa decision); and a decision made by a delegate of the Minister for Home Affairs on 17 November 2021 (the second protection visa decision) to refuse to grant [the husband] a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act); and a decision made by a delegate of the Minister for Home Affairs on 19 November 2020 to refuse to grant [the wife] and [the child] protection visas under s 65 of the Act.

   Procedural history

2. There is an extensive procedural history to these cases now before the Tribunal, as follows.

3. According to Departmental records, [the husband], who claims to be a citizen of Vietnam, arrived in Australia by sea without a valid visa at the Territory of Ashmore and Cartier Islands in April 2013, on a boat from [Country 1] codenamed [Codename].

4. [The husband] was granted a Class UJ 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.

5. Subsequently, the purported s 46A bar was lifted and on 21 June 2016 [the husband] was invited to make an application for a Class XD subclass 785 Temporary Protection visa or a Class XE subclass 790 Safe Haven Enterprise visa.  He was advised that, if he makes a valid application, it will be considered under the ‘fast track applicant’ (as defined in s 5(1)) assessment process.

6. [The husband] applied for a Temporary Protection visa on 14 July 2016 (the first protection visa application). A delegate of the Minister decided to refuse to grant this visa on 8 May 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied.  Initially, the refusal decision was referred to the Immigration Assessment Authority for review, in accordance with the ‘fast track reviewable decision’ (as defined in s 5(1)) process. 

7. On 6 August 2018, the Full Federal Court in DBB16 v MIBP (2018) 260 FCR 447 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 the Act). Accordingly, [the husband] is not a ‘fast track applicant’ and a decision refusing to grant him a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

8. On 19 February 2019, [the husband] was renotified of the decision to refuse him the Temporary Protection visa and informed of his right to seek merits review of that decision at the Administrative Appeals Tribunal.  An application for review of that decision was made to the Tribunal on 5 March 2019 (Case Number 1905177).  The applicant provided the Tribunal with a copy of the delegate’s decision record.

9. Subsequently, 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.

10. Believing that the first Protection visa was invalid, the Department wrote to the applicant on 5 June 2020 advising him that the s 48A bar had been lifted in his case and inviting him to apply for a Temporary Protection visa or a Safe Haven Enterprise visa.  The applicant purported to make an application for a Safe Haven Enterprise visa on 22 June 2020 (the second Protection visa application).

11. However, on 4 May 2021 the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, determined that s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Accordingly, the applicant’s first visa application was not invalid due to the operation of s 91K. This means that the s 48A bar was not lifted for the applicant because he was not within the class of persons specified in the then Minister’s s 48B determination.

12. The second Protection visa application was refused by a delegate on 17 November 2021. An application for review of that decision was made on 8 December 2021. The applicant provided the Tribunal with a copy of the delegate’s decision record. However, the second protection visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

13. [The husband] appeared before the Tribunal in a combined hearing for cases 1905177 and 2118631 (pursuant to s 427(2) of the Act) on 24 March 2023 where he gave evidence and presented arguments regarding the issues that arise in this matter. 

14. [The wife] came to Australia from Vietnam [in] June 2013 on a Student visa.  She met          [the husband] in Australia and they married on [Date].  Their daughter, [the child], was born in Australia on [Date].

15. [The wife] applied for a Class XA subclass 866 Protection visa on 27 September 2018.  She included [the child] in her application. The application was refused by a delegate of the Minister for Home Affairs on 19 November 2020 on the basis that they were not satisfied either applicant was a refugee or that complementary protection provisions applied.          [The wife] sought review of this decision on 16 December 2020.  She provided the Tribunal with a copy of the delegate’s decision record.

16. As the claims for protection submitted by [the wife] and [the child] rely to a significant extent on those of [the husband], with the consent of the applicants it was agreed that there would be a combined hearing and a single decision record covering all three review applications under consideration.

17. [Ms A] of [Organisation 1] and [Mr B] of the Viet Tan (Vietnam Reform Party) [City 1] Chapter also attended the hearing as witnesses and gave evidence in support of the applicants.

18. At the start of the hearing the Tribunal noted the extensive procedural history to these cases.  The Tribunal noted the same law (post 16 December 2014) applies in each of the cases. The Tribunal indicated, however, that, as was its understanding at the time of the hearing, both the Temporary Protection visa application and the Safe Haven Enterprise visa application made by [the husband] are valid applications.  As set out above, however, more recent legal advice confirms that this is not the case - while the first application for a Temporary Protection visa is a valid application, the second application for a Safe Haven Enterprise visa is, and always was, barred under s 48A and accordingly is invalid. Consequently, the Tribunal has no option other than to set aside the delegate’s refusal of the application for a Safe Haven Enterprise visa and substitute it with a decision that the application is invalid. The Tribunal has, however, taken into consideration all evidence and submissions on the invalid visa application file as well as the valid visa application file, in considering the decision to refuse [the husband]’s valid Temporary Protection visa application.

19. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

20. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

21. To meet the criteria for a protection visa, applicants must engage Australia’s protection obligations as follows.

22. 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.

23. 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.

24. 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).

25. 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.

26. 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

27. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims

28. In his Temporary Protection visa application of 14 July 2016, [the husband] indicated he was born on [Date] in [Village 1], [District 1] in Nghe An province, Vietnam.  He stated he was a Vietnamese citizen at birth. He indicated he is a Catholic.  He stated he had never married or been in a de facto relationship.  He indicated he departed Vietnam legally [in] March 2013 from [Airport] using a Vietnamese passport, and travelled to [Country 1] to get on a boat to Australia.  He indicated he arrived in [Australia] by boat [in] April 2013 without a visa. He indicated that he previously sought to travel from [Country 1] to Australia (in May 2012) but was caught by [Country 1] police.[1]

    [1] See Departmental File [Reference 1].

29. [The husband] provided little detail in his application regarding why he claimed protection, commenting that he left Vietnam to protect himself from harm, that he is strongly against the government because of its mistreatment of its citizens and considers terrible things would happen to him if he returned.  He indicated he suffered constant threats from officials who abuse their power; that he repeatedly tried to escape from Vietnam which is enough for severe punishment if he returns; and that he moved to Saigon to wait for another chance to escape.  He indicated he would provide more details later.[2] 

    [2] Ibid.

30. [The husband] subsequently provided a statement dated 12 April 2017 in support of his Temporary Protection visa application.[3]  Relevant matters raised in this statement are summarised as follows:

    [3] Ibid.

    ·He grew up in a devout Catholic family in a small rural town called [Town] in Nghe An province.  His parents are farmers.

    ·He has [brothers and sisters].  His brothers are currently seeking refuge in [Countries 2 and 3].

    ·He left Vietnam because he was under constant surveillance by the local authorities.  He has an adverse profile with the local communist authorities because he was the leader of a church youth group comprising approximately 200 followers; he was involved with disseminating information about discriminatory treatment of Catholic people in Vietnam and; he already tried to flee Vietnam on two previous occasions (when he was [Ages 1 and 2]).

    ·His grandfather and father worked closely with their local priest.  His father was nominated as the Catholic community elder for their region with over 2000 followers.  He served for 25 years and still volunteers today.

    ·He has heard how the Communist government stole Catholic church land after the war in 1975 and continues to control their religious freedoms up until this day.

    ·The police would often stop him on the road and ask him where he had been and where he was going.  He was interrogated both at home and on the streets and warned that his actions were inappropriate and that he would be imprisoned.  He was constantly watched by the officials.  He believes this was about his printing and distributing to his youth group information about the treatment of Catholics.

    ·He was [Age 1] when he first left Vietnam.  He wanted to go to [Country 3].  He got a tourist visa to [Country 4] but was travelling on a fake [Country 5] passport.  He was arrested, held in a detention camp for 3 months and then deported back to Vietnam. The second time he fled on a boat from [City 2] but it was intercepted by [Country 1] officials [in] May 2012.  He was awaiting paper work to apply to the UN for refugee status but after waiting for 3 months he decided to return to Vietnam because the conditions were very bad.  When he returned the authorities did not do any wrong things to him and indicated they were happy to have him back.  After he returned home, however, he was summoned for questioning.  He was interrogated and threatened that if he attempted to flee again he would be charged and imprisoned on his return. He had to lie and show he was apologetic.  He and his family were constantly pressured after that and he was monitored everywhere he went.  He fears the officials will take the view that he fled to conduct propaganda against the state and that he opposes the people’s administration.

    ·From February 2011, he worked within the area of Vinh [doing Job task 1] and earned a reasonably high income.  In December 2011, however, he had to move to Saigon and live with a friend because of the harassment and constant abuse from the police in Vinh and in his hometown.  They charged him for road offences he did not commit.

    ·He lived in Saigon for about a year keeping a low profile.  He did not seek household registration as he did not want to give away his whereabouts.  He worked as a labourer in a small factory making [Products].

    ·After he came to Australia he was released into the community in October 2014.  He met [Mrs B], who is a well-known volunteer for the Vietnamese community.  She assisted him and he became an active member of [Organisation 1].  He has participated in their campaign against the Vietnamese Communist Government, sharing information about the government’s ill-treatment of Catholic people.

    ·Because of his involvement with [Organisation 1], the communist authorities will view him with increased hostility.  He will be seen as a traitor and will be at more risk of being tortured in prison.  His parents will be forced to pay large bribes to officials to let him out.

    ·He fears if he returns to Vietnam he and his family will be ostracised by friends and neighbours because they will fear retribution by the government if they associate with him.  He fears he will have to relocate like he did in the past.  He will not be able to register a place of residence because, if he does, he will be located by the officials.  This will mean he can’t live normally because he wont be able to apply for and obtain relevant and necessary documents.  It will be like being stateless.

    ·Unlike in Vietnam, in Australia he can speak freely about his views and opinions regarding the treatment of Catholics by the Vietnamese government.

    ·If he returned he would have to show the officials that he no longer holds anti-government views.  He will have to pay a bigger bribe to any official he wishes to seek help from.

    ·He fears he will be imprisoned and sent to an education camp where he will be ill-treated and beaten.

    ·He has heard that the police in Vietnam arrange for people like gangsters to harm peaceful protesters and make it seem like an accident.

1. The applicant attended an interview with the delegate on 13 April 2017.  In her decision record, the delegate notes that, after his arrival in Australia, the applicant was interviewed by Immigration officers on 24 April 2013.  As part of that interview he was asked why he departed Vietnam and in response said the Government of Vietnam does not respect human rights and that there is corruption in Vietnam and you need money to progress in Vietnamese Society.  She states he indicated that he had not been persecuted or harmed in Vietnam but as a driver had experienced harassment in the form of having to pay money to the police despite not breaking any laws.  She also indicates the applicant stated that he observed Catholic people had been persecuted in Vietnam and as a Catholic himself, he was unable to assist.  The delegate indicated that, on the basis of those statements, the applicant initially was ‘screened out’ of the protection process.  On 15 August 2013, however, he made a verbal statement to staff at the immigration detention centre where he was being held, raising additional claims.  This statement was documented and placed on the Departmental file.[4] 

   [4] Ibid.

2. In the statement of 15 August 2013 the applicant indicated he came to Australia to escape Catholic religious persecution and has fears for his safety as he had previously attempted to escape Vietnam illegally.  He indicated that when he returned to Vietnam he was interrogated about his suspected involvement in church activities - distributing flyers about fairness, equality and the rights of Catholic people. He indicated he denied it all and then they started questioning him about attempting to flee the country.  He indicated he then received many anonymous calls from a blocked number threatening his life and his parents’ lives if he did not stop everything with the church, stop distributing flyers and never talk about the police beatings of other people he was aware of.

3. The delegate indicated that, at the interview with her on 13 April 2017, [the husband] stated he feared returning to Vietnam because of his position as Youth Group leader at his local church; his previous involvement in the distribution of information relating to the treatment of Catholics in Vietnam; and because he departed Vietnam on more than one occasion.  The delegate’s decision record also indicates that [the husband] raised at the interview concerns regarding the Departmental data breach in February 2014, when the biographical details of approximately 10,000 people who were in immigration detention at that time were inadvertently released on the internet.

4. The Tribunal notes that there is a copy of a decision record dated 20 June 2017 from the Immigration Assessment Authority (IAA) on the Departmental file.[5]  As this relates to an invalid legal process (the ‘fast track reviewable decision’ process) the Tribunal did not have regard to the IAA decision. 

   [5] Ibid.

5. Additional information in [the husband]’s invalid Safe Haven Enterprise visa application of 22 June 2020 indicated he is ethnic Kinh and that he married [the wife] on [Date] and they have a daughter, [the child], born [Date].  In his claims for protection,        [the husband] stated that he left Vietnam because of the combined effect of his Catholic faith and his opposition to the communist government.  He referred to his previous protection visa application and his statement of 12 April 2017 provided in support of that application.[6]

   [6] See Departmental file [Reference 2].

6. [The husband] submitted a range of supporting documents including copies of photographs of himself at [an Organisation 1] event, at 3 protests in Australia in 2018, and at a vigil; copies of two [Social media] posts; a copy of a photo of himself with [Mr C] [in] January 2018; and copies of letters of support from two [Organisation 1] presidents and two Catholic priests.  He also submitted a copy of a letter from [Mr D] of the [City 1] of the Viet Tan (Vietnam Reform Party). The letter states that [the husband] is a supporter of the Viet Tan and its human rights and democracy activism and has attended a number of fund raising functions and events organised by the party.

7. In her Protection visa application made on 27 September 2018, [the wife] indicated she was born on [Date] in [Village 2], [District 2] in Nghe An province.  She stated she is ethnic Kinh, a Catholic and married [the husband] on [Date].  She indicated she was pregnant with an expected date of birth of [Date].  She indicated she departed Vietnam legally [in] June 2013 and entered Australia on a Student visa.[7] [The wife]’s daughter, [the child], was added to the application following her birth on [Date].

   [7] See Departmental file [References 3 and 2].

8. In her application [the wife] indicated she left Vietnam and came to Australia to study.  She stated that she did not experience harm in Vietnam.  She stated that her husband is a religious and political activist who opposes the Government of Vietnam, and she fears for her safety and the safety of her child if she returns to Vietnam because she fears she will be imprisoned, interrogated about her husband’s whereabouts and his activities in Australia, and harmed.[8]

   Pre-hearing submissions

   [8] Ibid.

9. The representative made pre-hearing submissions in relation to [the wife] and [the child] on 17 March 2023,[9] and for [the husband] on 23 March 2023.[10]

   [9] See Tribunal file 2018016.

   [10] See Tribunal file 2118631.

10. The submissions for [the husband] comprised a further statement by him, dated 7 February 2023; a statement by the representative, dated 23 March 2023; and a range of supporting documents (some of which had been submitted previously to the Department). These include copies of photos of [the husband] at protests in Australia; excerpts from his [Social media] account; copies of emails and a letter of support from [Organisation 1] and [an Organisation 1] submission to a parliamentary inquiry from July 2017; a letter of support from [Ms B] and copies of photos of her ‘activism’ activities; and copies of a selection of photos of [Ms E] at Vietnamese community events.

11. Relevant additional matters raised in [the husband]’s statement of 7 February 2023 are summarised as follows:

    ·In 2009 he was voted to be the person in charge of the youth committee in his local parish.  He subsequently organised a candlelight vigil to pray for those parishes that were being supressed by the Communist Party party and for the prisoners of conscience.  They dropped flyers to inform the young and other people about the bad things that the Communist Party and government had done. As a consequence he was summoned many times by the police.  He was assaulted, threatened and harassed at work and in his life causing him to leave his home town and go to live in Saigon.

    ·In Saigon he still took part in protests against the government.  The police came to his family home many times looking for him, and threatened his parents.

    ·In Australia he participates in Vietnamese community activities.  He continues to fight for human rights in Vietnam by sharing articles, photos and videos about the wrong doing and violent behaviour of the police and the Communist government.

    ·He has participated in rallies with the Viet Tan (Vietnam Revolutionary Party) and people who used to live in Vietnam.  They oppose the Vietnamese Communist Party because they suppress people and jail human rights activists.  They are against the cyber security law, the special economic zones and the Formosa Corporation in Ha Tinh.  [In] April 2022 he participated in a demonstration with the Vietnamese community, with people who used to live in Vietnam.  He livestreamed the demonstration on his [Social media].

    ·Since meeting [Ms B] he has participated in every [Organisation 1] activity and has met and got to know many people.

    ·He participated in three demonstrations in 2018.  At a demonstration at [Venue] protesting against the Vietnamese Communist Party and government, he was interviewed by [Ms E] expressing his views regarding the Vietnamese government and the interview was livestreamed on [Social media].

    ·After two years of the pandemic he was able to join the demonstration at the [Venue] in [City 3] [in] April 2022.

    ·He also participates in fund-raising events run by the Vietnamese community and the Viet Tan and frequently shares information about ‘the rotten communist regime’.

    ·On the trip to Australia he got to know [Mr B], who is a member of the Viet Tan.  He has now met him many times and goes to his house to talk with him.  [Mr B] invited him to come and meet [Mr F], a [City 4]-based Viet Tan member who was visiting [City 1] [in] March 2018, to talk about political matters.  Since then, he is often invited to attend Viet Tan seminars to develop methods and policy to fight against the wrong-doing of the Vietnamese Communist Party.  He shares their desire to fight for freedom and wants to be ‘a friend’ of the party.

    ·Through attending Viet Tan fundraising events to support jailed political activists and other activities including eating pho prepared by the Viet Tan on [Specified days], he met [Mr D], the representative of the Viet Tan in [City 1].

    ·[In] April 2018 he took part in the demonstration in [City 3] organised by the Vietnamese community together with the Viet Tan.  He was able to meet and talk to with [Mr G], who is a member of the Viet Tan and is currently in jail in Vietnam after being charged with conspiracy to overturn the Vietnamese government.

    ·He has been invited by [Mr B] to attend a seminar organised by the Viet Tan [in] April 2023, at which the [Official position] of the Viet Tan, [Mr H] from [Country 4] will speak.

    ·He has decided to join the Viet Tan through [Mr B] and his application is being considered.  He feels that he wishes to follow their idealism and seek freedom of speech and freedom of religion for people in Vietnam. He opposes the Vietnamese Communist Party because he doesn’t want a dictatorship regime suppressing innocent people and religions; appropriating people’s land; and jailing political activists, freedom fighters, prisoners of conscience and human rights activists.  He wants Vietnam to be a free and democratic country with freedom of speech and religion.

    ·The Viet Tan is classified as a terrorist organisation by the Vietnamese government.

    ·He now has a second child, who is [Number] months old.  He is very worried about how his wife and children would live if he was deported to Vietnam and put in jail.  He is afraid his wife could also be jailed as an accomplice.

12. Relevant matters from the representative’s submission are summarised as follows:

    ·It would be unfair to [the husband] to use information in [the husband]’s Entry Interview (held on 24 April 2013) to find inconsistencies in his claims for protection, as the information was obtained with the assistance of Vietnamese interpreters and there can be misinterpretation (a copy of the Departmental document recording the Entry Interview was provided to the Tribunal by the representative).

    ·Information in a statutory declaration made by [the husband] on 13 July 2016 also should not be relied upon as it was provided in the context of his application for a Bridging E visa.

    ·[The husband]’s statement of 12 April 2017 was provided for the purpose of assessment of his protection claims.  At the time of making this statement, however, he did not have access to the record of his Entry Interview so this statement has unknowingly omitted some of the matters mentioned at his Entry Interview.

    ·The representative has attached copies of correspondence exchanged with the Department and sent to the IAA highlighting difficulties she had taking [the husband]’s instructions prior to his interview with the department on 13 April 2017 and submits that any omission of information, facts and/or claims should not be used as a basis for finding inconsistencies in his claims.  She also notes both his interviews with the Department were by video-link even though he requested they be in-person.  She further comments that the interview of 13 April 2017 did not go well due to deficiencies in the interpreting.

    ·It is noted that while [the husband] was charged with [Offence] in Australia that charge was later withdrawn. She states that he does not want to make any claims in relation to that matter.

    ·In relation to the Departmental data breach, the representative states [the husband] believes that, because the Vietnamese authorities know he sought asylum in Australia, he would be identified at the airport on arrival, interrogated and questioned about his activities in Australia.  It is submitted that the Vietnamese authorities would eventually discover his anti-government activities in Australia from his phone contact list, text messages, emails and social media.

    ·She submits, however, that his anti-government activities in Australia would already be known to the Vietnamese authorities due to them being published through online media, by [Organisation 1], the Viet Tan, [News source], [the husband] himself or by his friends and people he is linked to on social media.

    ·The representative states that [the husband] does not wish to be assessed in relation to the harm he has faced in Vietnam.  She states this is because he cannot recall the ‘mini details’ of what occurred, due to the passage of time.

    ·The representative summarises the anti-Government activities [the husband] has been involved in in Australia and the activists he is linked to or has associated with, including people from [Organisation 1] and the Viet Tan.  She notes he was photographed with [Mr G], who was subsequently sentenced to [imprisonment] in Vietnam for engaging in terrorist activities and financing terrorism.  She assets that it is possible the Vietnamese authorities have gained access to this photograph and that he, ‘no doubt’ has been exposed to the Vietnamese authorities during protests at [a venue] in [City 3] where photos of those in attendance, which includes [Organisation 1] and Viet Tan members, would have been taken and stored.

    ·While conceding that [the husband]’s activism profile is nowhere near that of [Mr G] and some others present at such protests, the representative comments that, given his profile and links to activists in [Organisation 1] and Viet Tan, there is more than a low possibility that he could be charged and sentenced to a term of imprisonment of 3 to 4 years which, given prison conditions in Vietnam as reported by DFAT, would amount to serious harm to [the husband].

    ·The representative noted that in the decision record for [the wife], the delegate cited country information which indicates that the Vietnamese government has declared that anyone involved with the Viet Tan is considered to be an accomplice in terrorism.

    ·The representative also submitted that a photograph of [the husband] with [Mr C] taken [in] January 2018 and an article published by [News source] in relation to [Mr C]’s speech [in] January 2018 could indicate to the Vietnamese authorities that [the husband] has a mentor who would lead him on his return to Vietnam in campaigning for human rights and democracy.

    ·The representative comments that [the husband] has recently been able to access his old [Social media] where there is evidence of his posting and sharing of politically sensitive material.  Screenshots of relevant material were attached.

    ·The representative also noted the actions of Vietnamese authorities in jailing a  number of well-known bloggers in an attempt to curb online criticism of the government.

    ·The representative comments: ‘Central to the delegate’s decision is that the delegate had disregarded [the husband]’s political activities in Australia’ and then found he ‘does not have the religious or political profile that would be of interest to the Vietnamese authorities’.  She asserts that [the husband]’s political activism in Australia is genuine and therefore he has a profile of interest to the Vietnamese authorities as submitted.

13. The submissions for [the wife] comprised a statement by her, dated 9 February 2023; a statement by the representative, dated 17 March 2023; and a range of supporting documents (some of which had been submitted previously to the Department).[11]  These include copies of photos of [the wife] (with [the husband]) at a demonstration in [City 1] [in] September 2018 opposing China’s Belt and Road initiatives, and [Social media] posts and [a News source] report regarding that demonstration; copies of photos of [the husband] at protests in Australia; screenshots of [the husband’s] [Social media] and [Ms E]’s [Social media]; copies of an ABC News report on culture shock among migrants to Australia; a selection of photos of [Ms E] at community events and a selection of her [Social media] posts; screenshots of [the husband]’s ‘politically active’ [Social media] friends; a copy of a letter dated 26 September 2018 from [Organisation 1] to the then Prime Minister; a copy of the July 2017 [Organisation 1] submission to a parliamentary inquiry into the status of the human right of freedom of belief; copies of photos of [Ms A] at protests and events; copy of an article regarding an announcement by the Vietnamese Ministry of Public Security on 5 January 2021 that the organisation ‘Vietnam Dynasty’ had been declared a terrorist organisation; and a press article regarding the ‘Kbiz Vietnamese community’ simultaneously attacking and boycotting Australian born singer Hanni Pham due to her parents and grandparents being deemed to be ‘reactionaries’ because family members had taken photos of themselves under the ‘yellow flag’ of the former Republic of Vietnam (South Vietnam). 

    [11] See Tribunal file 2018016

14. Relevant additional matters raised in [the wife]’s statement of 9 February 2023 are summarised as follows:

    ·She came to Australia to further her studies in [Subject] but after more than two years her family in Vietnam went bankrupt and she had to quit study in order to work.

    ·While working in a [Workplace 1] in Australia she met many Vietnamese who came to Australia before she was born.  They told her about the problems, including arrest and confiscation of assets, they faced after the North took control of the South in 1975 and how they were forced to flee and come to countries like Australia.  It was a truth she had never been taught about the Communist Party of Vietnam while she was living there.

    ·She also met her husband at this time, and he told her about his and his friend’s attempts to flee Vietnam, risking their lives on a boat and putting his life in God’s hands.  She indicated he told her about the discrimination and suppression of Catholics in Vietnam, which she was not previously aware of.

    ·She took part in two demonstrations with her husband [in] April 2018 and  [September] 2018 and protests regarding cyber security.

    ·Her mother was threatened by village police for taking part in a protest about corruption and stealing money meant for land compensation.  Her parents were also pressured by her father’s uncle (a member of the village authority) at the behest of the government.

    ·They now have two children, [the child] and [Child 2].  They do not want to have to return to Vietnam where they will be subjected to suppression and accusations from the Vietnamese Communist Government. 

    ·She fears that her husband will be arrested, charged and jailed for no reason.  She also fears she will be charged and jailed for being an accomplice of her husband in opposing the government.

1. Relevant additional matters from the representative’s submission are summarised as follows:

   ·[The wife] and her daughter refer to and rely on [the husband]’s case before the Tribunal.

   ·It is accepted that, while [the wife] participated in two demonstrations with [the husband] in 2018, she is not ‘highly actively engaged in political protests’.  It is noted, however, that the demonstrations she attended in 2018 were not low profile.  The demonstration [in] September 2018 was publicised by her husband and [Ms E] on [Social media] and reported by [News source]. [the wife] appears in a video posted by [Ms E] ([Number] followers) and in her husband’s [Social media] post in relation to the demonstrations ([Number] [Social media] friends).

   ·[Ms E] was the [Official position] of [Organisation 2] which appeared before a parliamentary hearing [in] February 2012.  It is asserted that she is a political and human rights activist, opposes the Communist Party of Vietnam Government and that her role in the campaign for human rights and democracy in Vietnam is as significant as that of [Mr G].

   ·[The wife] attends the Viet Tan’s monthly fund-raising events with her husband and his friends, including politically active friends, have also become her friends.

   ·She contends that, contrary to the delegate’s findings, country information indicates that the Vietnamese government does routinely monitor anti-government activities abroad and that many protests are reported in Australian online media such as the ABC. The case of [Mr G] is cited as an example of the Vietnamese government monitoring anti-government activity abroad.

   ·The representative also cites DFAT advice that ‘It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when…but the possibility of a low-level activist being arrested cannot be discounted’.

   ·[The wife] also fears her children would suffer discrimination akin to that suffered by the K-pop singer, Hanni Pham, because her children would be boycotted and discriminated against at school because of their parents.

   Evidence from the hearing

2. [The husband] confirmed he is one of [siblings] (and had [brothers] and [sisters]).  He indicated [one] brother has passed away and his other [brothers] are all living outside Vietnam.  He said [some] are living in Europe as refugees and the third is in [Country 2] where he has a partner visa.  When asked, [the husband] said his brothers left Vietnam after he came to Australia.

3. [The husband] indicated all his sisters are married and live in Nghe An province.  He said his father passed away four years ago and his mother, who is now 73 years old, lives with his twin sister.

4. When asked about his education and work history in Vietnam, [the husband] said he dropped out of school in 2008 during the middle of Year 11.  Consistent with the claims in his statement of 12 April 2017 he said he sought to go to [Country 3] to seek refugee status there but was detained in [Country 4] and returned to Vietnam. 

5. When asked why he sought to go to [Country 3] in 2008, [the husband] said at that time he was starting to have an awareness of the true nature of the Communist Party of Vietnam (CPV) government – that it was a dictator state.  He commented that, even if someone got a qualification they may not get a good job unless they are a member of the ‘elite class’, which requires that they be a family member of someone who is a member of the CPV.  He said he thought this unfair and was looking for a society that is more free and just.

6. When asked what work he did in Vietnam, [the husband] said when he was returned to Vietnam in 2008 he did a [Job task 1] course and began working as [an Occupation 1] in Vinh city (the capital and biggest city of Nghe An province).  He said he did this until November 2011 when he started to be harassed.  When asked why he was harassed, [the husband] said in 2009 he was elected head of his local Catholic Youth Group.  He suggested he became known to the authorities because he was printing leaflets, making banners and organising candlelight vigils for those being harassed and persecuted by the authorities due to their Catholic religion.  He said he was being monitored by the local authorities and harassed because of his activities.

7. The Tribunal asked [the husband] what the authorities were doing to him.  He said when he was driving his car he would be stopped, fined without a valid reason and his customers would be harassed.  He added that the authorities also came to his home and harassed him and his family.

8. [The husband] confirmed that he moved to Saigon (Ho Chi Minh City) in December 2011.  When asked why he went there, he said it was to escape the harassment and being interrogated by the police.  When asked why he chose to go to Saigon, he said he had friends there.  Consistent with his statement of 12 April 2017, he said he stayed there until he joined a boat in May 2012 that departed from *Vung Tau (96 km from Ho Chi Minh City) to [Country 1].  He indicated the boat was intercepted by the [Country 1] Navy and eventually he was returned to Vietnam.

9. [The husband] indicated that when he was returned to Vietnam (in November 2012) he went back to live with his family in Nghe An province.  He said that, after 15 days, he was summoned to report to the police in his village.  He indicated that he reported as requested and was asked why he had ‘fled’ Vietnam by boat and was threatened that he would be arrested and jailed if he continued his activity against the government or tried to ‘escape’ again.  When asked, he said he was questioned for more than an hour and then released.  He said after his release the police had been ‘lurking’ near his home to see where he was and went to his family home and asked where he was.  He said they spoke with his father because he was in hiding as he was too scared to speak with them.  He indicated that, after that, he went to Saigon again.

10. The Tribunal asked [the husband] why the authorities would have lurked near the family home if he had reported to them when asked to do so.  He said they were gathering evidence because they believed he was involved in a political group or organisation because he was actively involved in the church youth group and they did not trust him.  He said he was in Nghe An for one to one and a half months before he went to Saigon again. He said when he returned to Saigon he worked in a [Workplace 2] assisting with [Job task 2].

11. [The husband] indicated that, in Australia, he has worked in a [Workplace 1], in [a] division of a [company] and is now working as [an Occupation 2] doing things like [Job tasks 3].

12. When asked about his Catholic faith, [the husband] said he worshipped in [Town] parish under [Fr I] (later corrected to [Fr II]) .  He said he became the head of the parish youth group in October 2009 after being elected their representative in a vote of the youth group members coordinated by [Fr II].  When asked, he said he was elected because of their family tradition of service, following the contributions made by his grandfather and father, who had dedicated his life to serving the church for 25 years or more.  He said he has strong faith in his religion.  [The husband] indicated his role as head of the youth group involved organising prayer sessions, candlelight vigils, printing leaflets and preparing banners and praying for prisoners of conscience and victims of the government’s crimes.

13. The Tribunal noted that his representative has provided the Tribunal with a copy of the Department’s written record of his Entry Interview conducted on 24 April 2013 and asked why he hadn’t mentioned at that time what he has told the Tribunal today.  The Tribunal observed that, while he touched on the persecution of Catholics in Vietnam, he did so in a very general way and did not raise any of the specific matters he has raised subsequently or at the hearing.  By way of example, the Tribunal noted that, when he was asked if anything had happened to him recently, he responded ‘no, not much’ and indicated that as a driver he was stopped often and was always asked for money.  When he was asked directly if he ever suffered persecution he indicated he had not and commented that as he does not have a lot of education he has not been able to do a lot to help Catholics suffering persecution.  The Tribunal asked why he did not mention involvement with the youth group; printing pamphlets; arranging prayer sessions; being harassed by police; being fearful and running away as he has at the hearing, and why he did not state that he considers he was being persecuted by the police because of his activities in support of his Catholic faith. The applicant responded indicating that the question asked of him at the entry interview was not very clear to him at the time so he did not declare ‘it’ clearly, even though he was in the youth group.

14. The Tribunal observed that the delegates accepted he was involved with a Catholic youth group but did not accept he had a leadership role or undertook protest activities as he now claims. The applicant responded that the reason for this may be because he was asked to list the protests he was involved in and the dates of those protests but he could not remember that detail. The Tribunal further observed that the second delegate commented that she did not accept he was a Catholic youth group leader in Vietnam partly because he stated he was living with friends in Vietnam for part of the relevant time period.  The applicant responded indicating that he was elected in 2009 for a five year term from 2009-2014. He said he was being harassed by the local police in Nghe An so he went to Saigon (in December 2011) but he kept in touch with his assistant/vice chair.  He added that they could not elect a new chair as the parish priest was absent.

15. The Tribunal observed that the second delegate found it implausible that, if he attended 4 or 5 demonstrations in Vietnam as claimed at the Entry Interview, he would not have raised this in his written statement of 12 April 2017.  She noted that, at the interview with her, he had claimed to be an organiser of demonstrations but had not been able to provide more specific details about the protests he claims to have attended.  The applicant commented that he was still confused when he arrived in Australia but, as time went by, he was better able to think about what he should mention.  He said when he first arrived he was also fearful about what information he should declare because he thought the information might be compromised.  He commented that once he got a representative he was clearer about what he needed to declare.

16. The Tribunal also observed that, as raised by the second delegate in her decision record,     s 5J(6) of the Act requires that conduct engaged in by a person in Australia must be disregarded unless the decision maker is satisfied that the conduct was engaged in otherwise than for the purpose of strengthening the person’s claims to be a refugee.  The Tribunal notes that the second delegate considered his activities in Australia were undertaken solely to strengthen his claims to be a refugee and therefore she disregarded them.  [The husband] maintained that his activities in Australia are a continuation of his activities in Vietnam to protest against and criticise the CPV government.

17. When asked about his activities in Australia, [the husband] said he was first involved in a protest in [City 3] on [Date] (in relation to [an Event]).  He indicated he attended three protests in 2018, in [City 3] and in [City 1].  The Tribunal observed that the second delegate found his protests activities were limited and commented that he did nothing after he arrived in Australia in 2013 but only in 2018, considered that he was not readily identifiable in the [Social media] postings in 2018, and had done nothing since 2019.  [The husband] commented that, following his arrival in March 2013 he was not released from immigration detention until October 2014.  He said after his release [Ms A] introduced him to the ‘free’ Vietnamese community in [City 1] and he became involved in their activities, although he has not recorded all the dates and times.  He commented that in August 2015 he was accused of involvement in growing cannabis and consequently his bridging visa was cancelled and he was placed in criminal and immigration detention.  He was released in November 2017 after the charges against him were dropped and he was granted a further bridging visa.

18. The Tribunal observed that the second delegate also stated in her decision record that she did not accept that he had supported the Viet Tan political party since 2018 and had attended Viet Tan fund-raising events.  [The husband] said while he is not a member of the Viet Tan he is a sympathiser and supporter.  He said his witness, [Mr B] can give evidence regarding his involvement with the Viet Tan.

19. The Tribunal asked [the husband] why, if he has been involved with the Viet Tan since 2018 and attended their fund raising events, he hadn’t joined the party at that time.  [The husband] said before deciding to join any political group he needed to carefully research them.  He said he had done that and came to the decision to join and now his membership application is being considered.  When asked, he said he has been attending their fundraising events because he has some idea about them and knows they are fighting to make Vietnam a better society and country.  He added that the impact of COVID-19 lockdowns meant that they were not able to meet for an extended period.  He indicated that when lockdowns ceased he immediately contacted [Mr B] and expressed his interest in being a member of the Viet Tan.

20. The representative commented that it was made clear to [the husband] that as he is not a member he cannot participate in sensitive Viet Tan events but he can participate in their monthly fundraising events.  She commented that [Ms A] can comment on these as she attends and sees [the husband] there.

21. In relation to the Departmental data breach the Tribunal commented that information identifying approximately 10,000 people who were in immigration detention in February 2014 was inadvertently released on the Departmental website for approximately one week.  This included details of the names and dates of birth of people who were in immigration detention but did not include any information regarding whether people had sought protection or the nature of any claims they may have made for protection.  The Tribunal acknowledged that it is possible the Vietnamese authorities became aware of the information but, while it would indicate to them that a person was in immigration detention in Australia and therefore did not have a valid visa at that time, it would not indicate anything beyond that.  [The husband] and his representative indicated they did not have any comments they wished to make in relation to the data breach.

22. The Tribunal further observed that the Vietnamese authorities may assume that people who are returned to Vietnam involuntarily from Australia are failed asylum seekers.  The Tribunal noted that the representative has submitted a copy of the current DFAT Country Information Report on Vietnam (issued 11 January 2022) to the Tribunal.  This discusses the treatment of returnees to Vietnam (at sections 5.25-5.35) and indicates that, while Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés, DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia. 

23. DFAT comments that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.  DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures. DFAT comments that being a failed asylum seeker is not generally stigmatised and assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals.

24. When invited to comment on this information, [the husband] said it may be true that returnees are not held overnight.  He added, however, that while they do not detain the person while the Australian government is observing the process, after the person is released the authorities come to their house and demand they come for an interview.  He said they can make life very difficult for you once you resettle.

25. When the Tribunal spoke with [the wife] it observed that, when she made her Protection visa application she stated that she came to Australia to study and had not experienced any persecution in Vietnam. The Tribunal commented that she is now saying she is concerned that she would be imprisoned and interrogated due to her husband’s political and religious activism and the government would not protect her and her child.  The Tribunal observed that in her recent statement (dated 9 February 2023) she has commented that she was involved in two demonstrations, on 30 April 2018 and 2 September 2018.

26. [The wife] said she participated in a demonstration on 2 September 2018 but after that she was pregnant (with [the child]) with so was not involved in other protests.  She said it was a protest about the creation of Special Economic Zones in Vietnam in cooperation with China, the dispute with China over ownership of Islands in the South China Sea and the law which allows Chinese to lease land in Vietnam for 99 years.

27. The Tribunal asked [the wife] what her concerns are should she have to return to Vietnam.  She said her concerns mostly relate to her husband because he is a political activist both online on [Social media] and on the street in demonstrations.  She said she is 100 per cent sure that if he returned he would be questioned, arrested and interrogated about his activities.  She said she might be arrested as well but if he was arrested her life would be very difficult and she and the children would suffer discrimination.  When asked, she said if one person in a family is imprisoned then people shun you and your children and they would be alienated and subjected to discrimination at school.  She added that she would be helpless without her husband as she needs him to take care of her and their children.  She said in Vietnam people are subjected to brain washing and have less freedom and much less enjoyment of life that in Australia.

28. In her oral evidence to the Tribunal, [Ms A] indicated she is a member of the ‘free Vietnamese community’ of Victoria.  She commented that, in a recent meeting with the chair of [Organisation 1] in Victoria she discussed the issue of [the husband]’s first interview with the Department after his arrival in Australia in 2013.  She said they agreed that Vietnamese protection visa applicants indicate that they do not disclose the ‘whole truth’ of their experiences at the initial interview because they are fearful for the safety of their families back in Vietnam.  She commented that in Vietnam, if a person is in conflict with a neighbour or the authorities, they can easily assign some offence to you and then expect you to admit to that.

1. By way of example, [Ms A] related a personal experience from when she was living in Vietnam.  She said she was active in a church youth group after the fall of Saigon in 1975 and they used to organise camps every month or 3 months at which youths would undertake activities, such as sending morse code and finding hidden treasure.  She indicated that people who were against the group reported them to the local authorities and she was arrested and accused of working for the CIA.

2. She related a second experience from when she returned to Vietnam as part of ‘world trip’ with her family ten years ago.  She said a woman crashed her motorcycle into her son, who is [Redacted].  She said the local police arrived very quickly and seized his passport.  She said the woman told her she was a friend of local policeman.  She said she was advised that she should leave Vietnam but when she tried to get her son’s passport back a very low ranking policeman at the police station told her she would need a very large sum of money (she said ‘a few houses worth’) to get it back.  She indicated she was able to get her son’s passport back through the intervention of a long-term friend but her friend told her they kept his passport because she had been accused of returning to Vietnam to overturn the government.  She said her children were only [Age] and [Age] years old at the time but her friend commented that ‘if you want to live life in Vietnam you need to be under a big umbrella’.  She commented that in Vietnam if you become the target of someone then it becomes impossible to live your life as the authorities control everyone, including through their neighbours.

3. When asked, [Ms A] indicated she met [the husband] in 2014 when he was first released from immigration detention.  She said that, as a member of the free Vietnamese community, she went to meet the over 100 people who were released.  She told them where they could get temporary accommodation, organised short English courses for them ‘to protect them from being targeted by local criminals’ and gave them her number so they could call her if they ever needed help.  She said she treated them like nephews.

4. The Tribunal asked her what she knew of [the husband]’s protest activities.  She said she was enrolling people to participate in protests and sending busloads to [City 3].  She said she saw him at protests 2-3 times.  She added that she has met him on many other occasions because she is a supporter of the Viet Tan and when they open something she attends to support them.  She said she has seen [the husband] at their events.  For example, she said she saw him at one of their events at the Shrine of Remembrance where they were commemorating their ancestors.

5. [Ms A] commented that the Viet Tan used to accept new young members readily but recently they have become more cautious about who they accept. 

6. The representative requested that the Tribunal ask [Ms A] whether she believes [the husband]’s political and religious activities in Australia are genuinely from his heart.  When this was put to [Ms A] she said she believes [the husband]’s activities in Australia are genuinely from the bottom of his heart and indicated she believes his concerns regarding his safety in Vietnam are genuine.  She added that is why she came to the hearing.

7. In his oral evidence to the Tribunal, [Mr B] stated that he is a Viet Tan member and currently holds the second position (vice-chair) in the Victorian Chapter.  He said he got to know  because they came to Australia on the same boat in 2013 and were in the same immigration detention centre.

8. He commented that when they are first in the immigration detention centre after several weeks at sea where they have been in great danger they are all confused and find it difficult to remember at the first interview all the details of what they want to say.  He added that they also trust no-one because they have come from a communist society and do not know if promises to keep matters private and secret          are true, and worry that the information they provide will be compromised and disclosed.

9. [Mr B] said he can verify that [the husband] was a very active member of the Catholic youth group in Vietnam.  He said if a person wants to be elected they do not have to be highly educated, what is important is that they have enthusiasm and ‘socialising skills’.

10. [Mr B] said, as a Viet Tan member, he can verify that [the husband] is an active sympathiser with and supporter of the Viet Tan party.  He commented that [the husband] is actively involved in activities like signing petitions, fund-raising and discussion sessions among supporters of the party.  He said [the husband] applied for membership in 2020 but they needed more time to consider his membership application carefully.  He commented that [the husband]’s work and family obligations as well as COVID-19 related lockdowns all impacted on the time available for him to attend sessions and undertake training.  He commented that, nevertheless, both [the husband] and [the wife] were actively involved whenever there was any call for assistance from the party.  He said the Viet Tan leadership has now discussed his application for membership and he believes it will soon be approved.

11. When asked, [Mr B] said he became involved with the Viet Tan in 2009, when he was still in Vietnam (as a non-official member) and officially became a member when he arrived in Australia.  He said he became [Official position] of the [City 1] Chapter 18 months ago and will serve a 3 year term.

12. [Mr B] expressed the hope that the Tribunal will make a finding in favour of the applicants, commenting that if they return to Vietnam they would be in danger and ‘horrible things’ could happen to them due to [the husband]’s involvement in demonstrations and his online activities.  He commented that in Vietnam there are 10,000 secret service people monitoring online activities and he believes [the husband] would be arrested as his face has appeared online and the Vietnamese authorities would need to investigate to determine the extent of his activities with Viet Tan party members overseas to find out what he was up to.  His fate would be unknown but he could be subjected to torture and could be killed.  He added that the Vietnamese authorities can do whatever they want.

13. [Mr B] observed that the Viet Tan is classified as a terrorist organisation in Vietnam and therefore anyone associating with or cooperating with the Viet Tan is treated as a terrorist and subjected to the Vietnamese penal code as such.

14. When asked if he had anything he wished to add, [the husband] commented that he can assure the Tribunal his activity in Australia is not about increasing his profile, commenting that he had already submitted his image showing him with the Viet Tan and a print-out of 300 pages of what is already published on his [Social media].  He added that people have been arrested because they are Viet Tan members and there are many prisoners of conscience in Vietnam because they published their view on social media, even if they are not members of any political party, but because they have been accused of being against the CPV government.

15. The representative made a brief oral statement submitting that [the husband]’s fear of harm is genuine and that the case is about his activities in Australia.  She asserted that, in his case, it is not about inconsistencies in his evidence but omissions and he has disclosed further information as he recalls it. She asserted that his activities in Australia should not be disregarded due to omissions in his previous evidence.  She asserted that his activities in Australia may be limited but that are of a high enough profile to give rise to a real risk that he will suffer significant harm if returned to Vietnam.

16. The representative requested and was given a further week to provide any updates to her submissions.

    Post-hearing submission

17. On 3 April 2023 the representative made a post-hearing submission dated 31 March 2023.[12]  This clarified the work [the husband] had done in Saigon; the name of his parish priest in Vietnam; the bases for his fear of harm in Vietnam; and whether he is a sympathiser or supporter of the Viet Tan.  It was asserted that [the husband] is at risk of harm if he was to return to Vietnam because of his links to and associations with the Viet Tan and members of the Viet Tan, many of whom are his political activist friends.  It was further reiterated that [the husband]’s activities in Australia are a genuine result of his long held political and religious views and are not for the purpose of strengthening his protection claims.  The representative also referred the Tribunal to the findings in the Tribunal’s (differently constituted) decision record for Case 2014524.

    [12] See Tribunal file 1905177.

18. On 8 May 2023 further (annotated) copies of [Social media] posts critical of the CPV government were submitted.[13]

    [13] See Tribunal file 1905177.

    Assessment

    Identity

19. On the basis of the identity documents provided to the Department,[14] and noting the findings of the delegates in this regard, the Tribunal accepts that [the applicants] are citizens of Vietnam and that their identities are as claimed. The Tribunal accepts that Vietnam is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [14] See the relevant Departmental files.

20. The issue in these cases is whether there is a real chance, if the applicants return to Vietnam now or in the reasonably foreseeable future, that one or more of them they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Vietnam, there is a real risk that one of more of them will suffer significant harm.

21. in relation to cases number 1905177 and 2018016, for the following reasons the Tribunal has concluded that the matters should be remitted for reconsideration.  In relation to case number 2118631, as the Safe Haven Enterprise visa application made on 22 June 2020 is invalid, the Tribunal has no option other than to set aside the delegate’s refusal of that visa application and substitute it with a decision that the visa application is invalid.

    Credibility

22. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

23. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

24. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

25. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

    Findings in relation to claims for protection

26. The Tribunal accepts that [the husband] grew up in a devout Catholic family in Nghe An province. The Tribunal accepts that his grandfather and father worked closely with their local priest and that his father served as an elder in the church for 25 years.

27. The Tribunal finds that the applicant has consistently expressed concerns that Catholics in Vietnam suffer persecution. The record of his entry interview held on 24 April 2013 indicates that he stated ‘…because I am Catholic coming here I will be a free person’ and ‘…lately Catholic people have been persecuted a lot in Vietnam’.  He also stated that his father is on the management board of the Catholic Parish.

100.   In its current Country Information report on Vietnam,[15] DFAT indicates that, while Vietnam is officially an atheist state, Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion. DFAT notes that, in practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers.

101.   DFAT states that the extent of difficulty that a religious group could expect to face from authorities (for example, refusal of registration, questioning or disruption of activities) can depend on where they are located. Many claims of Government interference are at the hands of local and provincial authorities rather than national authorities. Attitudes and policies can differ between authorities. Many incidents relate to religious groups that are politically active in local land or environmental disputes. DFAT states that 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.

[15] DFAT Country Information Report, Vietnam, 11 January 2022, Sections 3.13-3.31.

1. DFAT comments that the 2020 US Department of State International Religious Freedom report estimates, based on census data, that 14 per cent of Vietnamese have some religious faith, with 6 per cent of the population Catholic.  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.

103.   DFAT notes that there have been Catholic political movements that attract negative attention from authorities and that the distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.  Land disputes have been reported, including the seizure of Catholic land and buildings. A particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished and the land sold. Appropriated land might be sold to the private sector for development. Conversely, much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades.

104.   DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. However, 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.

105.   The Tribunal notes that there was significant protest activity involving Catholic parishioners in Nghe An province in the early 2010s.  Reporting indicates that one incident involved ‘violent local government-backed attacks on a church’ in rural Con Cuong on 1 July 2012.  Bishop Nguyen Thai Hop of the Vinh Diocese was reported as stating: ‘We are now re-evaluating the situation. It hasn’t been just at Con Cuong; Con Cuong is just like the last drop in an overflowing glass of water. There are some more points that maybe in time we will sit down and discuss with a higher level of the government in order to evaluate the situation’.  It was reported that, in a letter dated 10 July 2012 sent to all cardinals and bishops in Vietnam, the diocese of Vinh reported: ‘Recently, Catholics in the diocese of Vinh who reside in the North West region of the Nghe An Province have been repeatedly persecuted for their faith. The attack on Sunday 1 July was the peak of a series of harassments against Catholics in the region. On that day, the local government mobilised large groups of police, army, militiamen, and thugs to disturb, and to physically attack priests and the faithful. They seized the chapel of Con Cuong, desecrated the Eucharist Host, and smashed a statue of the Virgin Mary.’  The incident resulted in widespread protests in Vinh diocese on 15 July 2012 with tens of thousands of Catholics taking to the streets to demand an end to the ongoing persecution by the local government despite armoured vehicles and riot police despatched to contain the protest.[16]

[16] ‘Priests Protest Church Attacks’, Radio Free Asia, 20 July 2012,

106.   In this context, the Tribunal accepts that the applicant, while in immigration detention in [Country 1] in July 2012, took part in a candlelight vigil held by Vietnamese Catholic detainees in support of the affected parishioners in Con Cuong. The Tribunal considers this is evidence of the applicant’s ongoing interest in and supports for the right to freedom of religion for Vietnamese Catholics.

107.   While [the husband]’s family background suggests it is plausible that the applicant was elected as leader of a parish youth group in 2009, after considering the available evidence the Tribunal does not accept this is the case.  In reaching this conclusion the Tribunal gives weight to [the husband]’s statements documented in the record of his Entry Interview that, as he does not have a lot of education, he ‘…hasn’t been able to do a lot to help religious or Catholic people’.  When asked if he or any members of his family had been involved with any political group or organisation, he indicated his father was on the management board of the Catholic Parish, but did not state he was the leader of the youth group.  The Tribunal is not convinced that his failure to mention he was the leader the Catholic youth group at this time was an omission (rather than an inconsistency) either because he failed to recall he had held this role or because he was afraid to mention it for fear it would be passed back to the authorities in Vietnam.  The Tribunal also found unconvincing [the husband]’s response when queried about how he could have undertaken this role at his local parish in Nghe An from October 2009 until he departed Vietnam in March 2013 when he went to Saigon in December 2011 and subsequently went to [Country 1] and only returned to Nghe An for approximately one month in November 2012 before returning to Saigon.  [The husband] said he kept in touch with his assistant and that they could not elect a replacement for him because the parish priest was absent.  The Tribunal finds it difficult to accept that [the husband] could have continued the role effectively from Saigon and Immigration detention in [Country 1] or that the relevant parish priest would have been absent for the entirety of the period in question.

108.   Notwithstanding this, the Tribunal accept [the husband]’s other evidence indicating he was active in the church as an altar boy and in the choir.  The Tribunal also accepts it is possible he was a member of his parish youth group.  Given the tensions between the Catholic community and local authorities in Nghe An province in the early 2010s, the Tribunal also accepts it is possible [the husband] participated in some protests at that time, as indicated in the record of his Entry Interview (he stated he has ‘participated in demonstrations, not to fight against the government but for religious reasons’). The Tribunal accepts that he may not be able to recall the precise dates of such events.  The Tribunal does not accept, however, that [the husband] was the leader of a Catholic youth group and was responsible for printing and distributing flyers regarding the plight of Vietnamese Catholics or that he had a role in organising protest activities while he was in Vietnam.  Accordingly, the Tribunal does not accept that [the husband] was monitored, questioned by police, threatened and instructed to cease his activities as claimed.

109.   The Tribunal finds that, while [the husband] has sometimes struggled to articulate his concerns, he has consistently stated that he opposes the CPV government of Vietnam.  At the entry arrival interview he stated he left Vietnam because the government does not do what it says, the human rights are low, he wants to be a free person, and the government ‘put down people’.  The Tribunal also accepts that the applicant attempted to flee Vietnam on two occasions before leaving in March 2013 and successfully making it to Australia.  He first left in May 2008 when he was 17 years of age.  As noted in paragraph 49 above, when asked why he sought to go to [Country 3] at that time, the applicant commented that it was because he was starting to get an awareness of the true nature of the CPV government of Vietnam -  that it was a dictator state, and he wanted to live somewhere that was more free and just.  He indicated he felt that only those who were members of the CVP or their family could succeed in Vietnam.

110.   [The husband] also has consistently made strong statements regarding the incidence of corruption in Vietnam, which the Tribunal considers is linked to his statements indicating that he does not like the CVP government because it does not do what it says.  In his entry interview he spoke about the need to pay bribes to arrange a good job, even if highly educated, and his experiences as [an Occupation 1] constantly being stopped and asked for money, even though he had not broken any laws.  The Tribunal finds that the applicant’s experiences and comments are consistent with DFAT’s advice that corruption is a key concern of everyday Vietnamese people.[17] DFAT comments that, despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services.

[17] DFAT Country Information Report, Vietnam, 11 January 2022, sections 2.10-2.11.

111.   The Tribunal accepts, in a general sense, the applicant’s statement that he left Vietnam because of the combined effect of his catholic faith and his opposition to the communist government (see para 35 above).

112.   In considering [the husband]’s activities in Australia, the Tribunal accepts his evidence that, after his arrival in Australia, he spent a considerable period of time in immigration and criminal detention (due to being arrested and charged in relation to the cultivation of cannabis - charges that subsequently were dropped).  He was first released into the community on 15 October 2014 but was re-detained seven and a half months later, on 27 May 2015, and was not released again until 24 November 2017.  The applicant stated, and the Tribunal accepts, that he first participated in protest activity in Australia in April 2015, when he attended [an event] with members of the ‘free’ [Organisation 1].  That he did not participate in protest activity again until 2018 is explicable because he was in detention and not free to do so.  The Tribunal accepts that he attended three protests in 2018.  The Tribunal also accepts that he attended a further protest in 2022, again marking [an Event], after such activities resumed following the extended period of disruption caused by COVID-19 related lockdowns and restrictions from March 2020 through to the end of 2021.

113.   Noting the letter of support of 6 February 2023 and her oral evidence at the hearing, the Tribunal accepts the evidence of [Ms A] that the applicant was supported by [Organisation 1] and Ms Cuc Nguyen personally when he was released from detention and has participated in [Organisation 1] events which, while including cultural events, also include peaceful demonstrations and human rights protests.  The Tribunal notes that the flag of the former Republic of Vietnam is prominently displayed at these events, that attendees describe themselves as members of the ‘free’ Vietnamese community and accepts that members of the Viet Tan attend such events.  The Tribunal also accepts that persons such as [Ms A] and [Ms E], with whom the applicant has associated in Australia, have significant public profiles as activists within the local Vietnamese community.

114.   The second delegate found that any political activities [the husband] may have undertaken in Australia were done solely to strengthen his protection claims and, accordingly, disregarded these activities pursuant to s 5J(6) of the Act.  The delegate did not accept that [the husband] has supported the Viet Tan party since 2018 and did not give any weight to the letter of support of 16 October 2021 from [Mr D], the representative of the Viet Tan [City 1] Chapter. The Tribunal does not share this view.  The Tribunal considers that [the husband]’s political activities in Australia are consistent with his long held views in support of religious freedom and opposing the CPV government of Vietnam.

115.   Considering all the available evidence, including the oral evidence given at the hearing by [Mr B], the current [Official position] of the [City 1] Chapter of the Viet Tan, the Tribunal accepts that [the husband] has been an active supporter of the Viet Tan since 2018, has applied for membership of the Viet Tan, and that this membership is likely to be approved shortly.

116.   [Mr B] indicated that he first met [the husband] in 2013 because they came to Australia on the same boat from [Country 1] and were in the same immigration detention centre.  The Tribunal accepts this and accepts his evidence that [the husband] has been actively involved with the Viet Tan including in fund-raising activities and discussion sessions.  The Tribunal accepts that, through his association with [Mr B], [the husband] has met [Mr D] and other Viet Tan figures including [Mr F] of the [City 4] Chapter.  The Tribunal accepts that Viet Tan figures have attended the protests that [the husband] has attended and that material has been posted on social media in relation to these activities.  The Tribunal also accepts that [the husband] has posted and shared on social media material that would be considered politically sensitive by the Vietnamese authorities.

117.   The Tribunal accepts that, through his involvement with the Viet Tan, [the husband] met and was photographed with [Mr G], a Viet Tan member, who until recently had been imprisoned in Vietnam after being convicted in November 2019 of ‘engaging in terrorist activities to oppose the government’ and sentenced to 12 years.[18]

[18] DFAT Country Information Report, Vietnam, 13 December 2019, section 3.53.

118.   DFAT has indicated that opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. DFAT states that 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.[19]  In October 2016, The Guardian reported that the Vietnamese government had declared the Viet Tan a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished.[20]

[19] DFAT Country Information Report, Vietnam, 13 December 2019, section 3.47.

[20] ‘Vietnam declares US-based activist group is a terrorist organization’, The Guardian, 8 October 2016, Vietnam declares US-based activist group is a terrorist organization | Vietnam | The Guardian

119.   The current DFAT report indicates that Vietnam is a one-party state and opposition parties are effectively illegal.[21] DFAT comments that threats to CPV legitimacy are seen as threats to the state and are not tolerated. The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Human rights, environmental or land-use protests and calls for democracy are sensitive.  Protests that are allowed are subject to close police monitoring. Activists report physical and electronic surveillance.

[21] DFAT Country Information Report, Vietnam, 15 January 2022, sections 3.49-3.57 and 3.61-3.64.

120.   DFAT states that, while street protests occur, much protest has now moved to online platforms and that social media, especially [Social media], has become a popular option for expressing opinion.  Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.

121.   DFAT comments that it is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.

122.   DFAT indicates that legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. [Social media], one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.

123.   DFAT comments that low-level social media users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities.  DFAT states it is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people.

124.   The Tribunal found [the husband]’s evidence regarding his Catholic faith and his attitude towards the CPV government of Vietnam to be genuine and heartfelt.  The Tribunal considers that there is a very real possibility that the Vietnamese authorities are aware of his activities and associations in Australia or would become aware of them through questioning of him and investigation of his activities on his return to Vietnam.  The Tribunal considers that the fact that [the husband], if returned to Vietnam, would be returning for the third time as a failed asylum seeker, but this time after a significant time period away in a western country, would likely result in him being questioned in some detail regarding his activities in Australia.  The Tribunal also considers that, should he be returned to Vietnam, it is likely that [the husband] would continue to engage in protest activity against the policies and actions of the CPV, including by posting and sharing anti-CPV material and comments on social media.  Considering the relevant country information and [the husband]’s personal circumstances, including his association with and activities in support of the Viet Tan in Australia and the material he has posted on or been associated with on social media, the Tribunal finds that it cannot assess that the chance that he would suffer serious harm in Vietnam as a consequence of his protest activity against the CPV, driven by his religious beliefs and his political opinions, is remote.  Accordingly, the Tribunal finds that there is a real chance that [the husband] would suffer persecution involving serious harm due to his religion and his political opinions, should he be returned to Vietnam.

125.   The Tribunal also finds that it cannot assess that the chance that [the wife] would also suffer serious harm in Vietnam as a consequence of her association with [the husband] and, albeit much more limited, protest activity and association with members and supporters of the Viet Tan, is remote.  Accordingly, the Tribunal finds that there is a real chance that [the wife] would suffer persecution involving serious harm due to her religion and political opinions, should she be returned to Vietnam.

126.   The Tribunal is satisfied that the real chance of serious harm [the husband] and [the wife] will face if they are returned to Vietnam will be a result of systematic and discriminatory conduct in that it will be done to them selectively and intentionally.  The Tribunal finds that the essential and significant reason for the serious harm [the husband] and [the wife] face is their Catholic religion and political opinions of opposition to the CPV government of Vietnam.

Availability of State protection

127.   As the harm that [the husband] and fear is from state agents (the CPV government and its authorities), the Tribunal finds that State protection is not available to them.

Relocation

128.   In the circumstances of this case, where the harm feared is from state actors, the Tribunal finds that [the husband] and [the wife] cannot remove the real risk of serious harm they face by relocating to another area of Vietnam away from their home area in Nghe An province.

Third country protection

129. There is no evidence before the Tribunal to suggest that either [the husband] or [the wife] has a right to enter and reside in a third country for the purposes of s 36(3) of the Act. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, [the husband] and [the wife] are refugees.

CONCLUSIONS

130. For the reasons given above, the Tribunal is satisfied that [the husband] and [the wife] are persons in respect of whom Australia has protection obligations under s 36(2)(a).

[The child] - Member of the same family unit

131. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. For protection cases, the expression is defined in cl 1.12(4) of the Regulations to include a dependent child of the family head or the spouse of the family head.

132. The Tribunal finds that [the child] is a dependent child of [the wife], the spouse of the family head. As a consequence of the finding above in relation to [the wife], [the child] therefore meets the requirements under s 36(2)(b) for the grant of a protection visa in the same class as that held by [the wife] (Class XA). The Tribunal also finds that there is no evidence before the Tribunal to suggest that [the child] has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

DECISIONS

133. Case 1905177: The Tribunal remits the matter for reconsideration with the direction that [the husband] satisfies s 36(2)(a) of the Migration Act.

134.   Case 2118631: The Tribunal sets aside the decision to refuse the visa application and substitutes it with a decision that the visa application is invalid.

135. Case 2018016 [the wife]: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

136. Case 2018016 [the child]: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b) of the Migration Act.

Paul Windsor
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.

…

‘Vietnam: mass protests after government crackdown on Catholic Church’, ICN, 15 July 2012,

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Citations

1905177 (Refugee) [2023] AATA 3990

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MICMSMA v CBW20 [2021] FCAFC 63

MICMSMA v CBW20 [2021] FCAFC 63

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

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