1907315 (Refugee)

1907315 (Refugee) [2023] AATA 4598 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Khanh Hoang
CASE NUMBER: 1907315 and 2016079

COUNTRY OF REFERENCE: Vietnam
MEMBER:Peter Katsambanis
DATE:6 November 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal:
a.affirms the decision not to grant the applicant protection visas in matter 1907315 (Safe Haven Enterprise visa application made on 26 April 2017); and
b.sets aside the decision in matter 2016079 to refuse the applicant’s Safe Haven Enterprise visa application made on 5 June 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 06 November 2023 at 3:37pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – opposition to the government – police corruption – particular social group – failed asylum seeker – illegal departure – motor vehicle accident – political activities in Australia – fear of physical assault – fear of detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 65, 9a, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of separate decisions made by a delegate of the Minister for Home Affairs on 24 May 2018 and 8 October 2020 respectively to refuse to grant the applicant a subclass XE-790 Safe Haven Enterprise visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of Vietnam.
According to Department of Home Affairs records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 15 October 2014. At the time, this was thought to trigger a statutory bar in s 91K of the Act which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Safe Haven Enterprise visa on 26 April 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. 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. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 5 June 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The first application for a Safe Haven Enterprise visa made on 26 April 2017 was refused by the delegate on 24 May 2018. The delegate refused to grant this visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. An application for review of that decision was made on 27 March 2019. The Tribunal case number for this first application is 1907315.
The second visa application made on 5 June 2020 was refused by a delegate on 8 October 2020. An application for review of that decision was made on 30 October 2020. The Tribunal case number for this second application is 2016079. However, the second 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.
The applicant appeared before the Tribunal on 21 February 2023 and on 9 August 2023 to give evidence and present arguments. Both Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by an Australian legal practitioner.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance that if the applicant returns to Vietnam he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
First application for a Safe Haven Enterprise visa
In his application lodged with the Department on 26 April 2017, the applicant stated that he was born in [a town in] Bo Trach, Quang Binh, Vietnam on [date]. He is of Kinh ethnicity and has no religion. He listed his occupation as Transport Driver.
The applicant claimed that he was married in Vietnam [in] December 2003 to [his wife]. He has [number] children, [genders and years of birth]. His parents are deceased, but his stepmother is still alive. He has [specified family members] who were all living in Vietnam at the time of application.
The applicant claimed that he travelled to Australia by boat. He departed Vietnam [in] March 2013 and arrived in Australia [in] April 2013. He claimed that he entered Australia as an unlawful maritime arrival. As discussed above, the CBW20 case subsequently established that arrivals such as the applicant were not unlawful maritime arrivals. The applicant claimed that prior to coming to Australia he had not travelled to any other country in the past [number] years.
The applicant listed the same residential address in [a town in] Quang Binh as his place of residence from birth until January 2013. He then listed several addresses where he had lived since his arrival in Australia.
The applicant claimed that he had worked as a bus driver in [his town] from 2000 to 2003, as a bus driver in [a town in], Hanoi from 2003 to 2009 and as [an occupation 1] selling [products 1] at a market in [a location in] from January 2009 to January 2013.
In his application, the applicant claimed that he was seeking protection in Australia so that he did not have to return to Vietnam. He claimed that he left Vietnam because of the government’s corruption, which left him struggling to support himself and his family. He stated that he worked as a driver when he was in Vietnam and was often harassed by the police. He claimed that the police were known to be very corrupt. In the past, many people paid them for favours and now they expect payment from everyone. Otherwise, they will make life difficult for those who don’t pay them. They will continue to make life difficult until the person gives in and pays them money.
The applicant claimed he experienced that kind of corruption himself. While he was working, the police would often stop him and arbitrarily fine him. This happened at least 13 times then he stopped counting. He eventually had to stop working as a driver because all the fines made it difficult for him to earn enough money to support his family.
The applicant claimed that one incident impacted him more than the others, which led him to leave Vietnam. He claimed that on [a day in] September 2010 he was involved in a motor vehicle accident. The victim’s family and the applicant entered into an agreement pursuant to which the applicant would pay the victim’s family [amount] Vietnamese Dong as compensation. The investigation into the crash finished [in] November 2011 but the police still used the incident to fine the applicant and say that more money was needed to compensate the victim, although the applicant knew that the police would just keep the money for themselves. The applicant told them that he did not want to pay the fines. They told him that he must pay the fines and threatened to hurt him. He believed that the threats were real and left the country because he feared for his safety and for the safety of his family.
The applicant stated that if he returned to Vietnam, the Vietnamese government would imprison him for escaping from the country illegally. He claimed that during his time in detention in Australia a number of events happened, which he feared would give the government a stronger claim to imprison him indefinitely. He was interrogated by the Vietnamese authorities (who he believed were the secret police) while he was in detention in Australia. Following the interrogation, he found out that his family in Vietnam had been questioned by the police. In addition, his personal information was inadvertently leaked by the Department (then knows as the Department of Immigration and Border Protection) in February 2014. He also feared that the local authorities knew of his escape and would be waiting to detain him as soon as he returned.
The applicant claimed that due to his experience of government corruption in Vietnam he had been actively involved in the Vietnamese community in Australia to raise awareness about the corruption of the Vietnamese government and how it personally affected him. He believed that if he returned to Vietnam, the Vietnamese government would consider his activities in Australia as a crime against the state. As a result, he believed the Vietnamese government would imprison him as a political prisoner indefinitely and take every opportunity to torture him and possibly leave him to die in prison.
The applicant claimed that whilst he was living in Vietnam, he experienced harm in terms of significant economic hardship directly caused by the Vietnamese authorities because the Vietnamese police made him pay arbitrary fines to the point where he could not sustain a living. He eventually found employment as [an occupation 1]. However, the local authorities continued to harass and fine him while he was driving. The authorities also threatened to hurt him. At this point, he felt that there was a threat to his liberty and that he did not have the capacity to earn a livelihood or have the capacity to subsist.
The applicant claimed that he did not seek help from the authorities in Vietnam because the police, the Vietnamese government and its agencies were corrupt. If he was to complain about the arbitrary fines from the police, they were more likely to consider it as a complaint against the state and possibly fine him or imprison him. He did not move to any other part of the country because in order to move to another part of the country he would need to obtain permission from the authorities, which he did not have.
The applicant claimed that he believed he would be imprisoned indefinitely for leaving the country illegally and for participating in political activities in Australia. He believed that it is likely that he would be tortured or even killed by the authorities whilst in prison. He repeated his claims that while living in Australia he had been very vocal against the Vietnamese government and its Communist regime and corruption. He claimed the authorities in Vietnam were widely known to be corrupt and brutal. He claimed that he had attended rallies in Australia calling for government accountability in Vietnam.
The applicant stated that speaking out against the government was a serious crime in Vietnam that often results in imprisonment. He added that because he had escaped from the country illegally, he had committed a crime and claimed that the authorities did not assist people who have committed crimes. He claimed that he could not obtain permission from the authorities to leave his local area because he had escaped illegally from Vietnam but even if he did obtain permission, he would still be monitored by the authorities through the national ID system.
The applicant provided the Department with the following documents:
·Certificates of appreciation from [Community Organisation 1] dated 28 February 2016 and 26 February 2017 thanking the applicant for his participation in Tet new year celebrations in 2016 and 2017 respectively.
·An award of excellence jointly presented to the applicant by [Community Organisation 2] and [Community Organisation 1] on 6 March 2016 for his contribution as a volunteer to [a community project].
·A letter for support dated 26 March 2017 from [Leader A], president of [Community Organisation 1], stating that the applicant was ‘trustworthy, full of voluntary spirit, good character and charming personality’. The letter also states that the applicant was involved with this organisation in activities ‘such as New Year festivals, historical anniversary/social/political events’.
·Four photographs of the applicant together with other people taken at events of [Community Organisation 1]. In one photograph, the applicant is pictured holding a small poster stating, ‘[Slogan]’. In another photograph the person next to the applicant is holding a small poster with the words ‘[slogan]’.
·A summons dated [in] September 2013 provided to the applicant’s wife requesting her to appear at the police station in [a named] ward [later in] September 2013.
·A handwritten document with no visible stamps or official imprints that an accompanying English translation refers to as being minutes of an agreement made at the police station at [a named] District on [a day in] November 2011 between the applicant, [name] as representative of the [Business 1] and representatives of the family of [Person A]. The agreement discussed a traffic accident on [a day in] September 2011 between an automobile driven by the applicant and a motorcycle driven by [Person A]. The minutes state that the family of the victim requested that [Business 1] and the applicant support the applicant’s medication and hospital expenses. [Business 1] and the applicant voluntarily provided support in the form of [amount] Vietnamese Dong and 50% of the insurance paid to the owner of the automobile driven by the applicant by the insurance company. The minutes state that the offer was accepted, and the agreement was signed by all relevant parties.
·Untranslated copies of what are claimed to be the applicant’s Vietnamese birth certificate, driver’s licence and family register.
First Interview with delegate
The applicant was interviewed by the delegate of the Minister in relation to this application on 20 March 2018.
As outlined in the decision record, at this interview the applicant expanded on his claims and stated that police would normally stop bus and truck drivers on the roads on a regular basis but people driving cars would not be stopped very often. He claimed that he was stopped ‘almost every day’ and that it was normally buses carrying tourists, rather than buses carrying local people, that were stopped by police. He confirmed that he drove a tourist bus for a private company called ‘[Business 2]’. The decision record notes that the applicant claimed that he would sometimes pay 200,000 Dong, sometimes 500,000 Dong and sometimes 1 million Dong at these checkpoints. The decision record also notes that when the applicant was asked to clarify why it was drivers like him who drove tourist buses that were targeted for such bribes by the police, rather than drivers of local buses, the applicant provided a somewhat contradictory response claiming that ‘they also stop the local buses as well’.

The applicant claimed that if he refused to pay bribes to police, they could stop him there for an hour, take away his paperwork or take his documents. If you paid the money, you could go straight away but otherwise, they would give you a hard time and keep you there for up to an hour. He confirmed that after being made to wait for an hour, the drivers would be allowed to continue on their journey. He added that if he was late for a destination, the bus company that he worked for could reduce his wages as punishment.
When asked if he had informed his employer about the actions of police at these checkpoints, the decision record notes that the applicant stated that his employer had told him to be flexible when dealing with the police because the employer would not be reimbursing the applicant any of the money he paid in bribes to the police unless the police found a fault with the vehicle and provided a report about such a fault to the applicant. The applicant also confirmed that he paid the bribes requested by police at these checkpoints on the majority of occasions when he was asked to do so.
The decision record notes that at the interview the applicant claimed that after he was interviewed by a Vietnamese delegation in detention in Australia, the police in Vietnam visited his wife and enquired about his whereabouts. The wife told the authorities that the applicant was working away from home. He further claimed that after this visit, his wife was summoned to attend the police station [in] September 2013 where she was further questioned about the applicant’s whereabouts.
The applicant claimed that he was involved with [Community Organisation 1]. He assisted this organisation with community festivals and also with [occupation 2] work. He claimed that he had held a banner at several protests in Perth that had been organised to protest against the Vietnamese government’s reaction to a toxic oil spill off the coast of Vietnam. He indicated that he had not been involved in any other protests apart from those protests relating to this environmental damage.
The applicant also expressed fears that the Department’s data breach in January 2014 may create further problems for him with the authorities if he returned to Vietnam.
Post-interview submission
In a submission dated 27 March 2018, the applicant’s representative stated that the victim in the motor vehicle accident was the [relative] of a police officer and that the applicant believed that the police constantly harassed him, causing him to fear for his and his family’s safety, because he injured someone who was related to the police.
Second application for a Safe Haven Enterprise visa
In his second visa application made on 5 June 2020, the applicant provided personal details and made claims that were practically identical to the claims he had made in his first SHEV application.
In support of this application, the applicant provided the Department with several identity documents he had obtained in Australia and documents which he had previously provided in support of his first SHEV application.
Second interview with delegate
The applicant was interviewed by a delegate in relation to the second SHEV application on 7 September 2020.
The decision record notes that at this interview the applicant claimed that he had been issued with a passport in Vietnam many years ago, but that passport had now expired.
It is noted in the decision record that the applicant claimed he was unemployed in the period from 2009 to 2013 and would help his wife sell things in her [products 1] store during this time. He claimed that his wife did not pay him any wages. He also claimed that he worked as a bus driver from 2000 to 2003 for [Person B] in Dong Hoi city and he worked as a bus driver for [Person C] from 2003 to 2009 driving the route between Hanoi and Quang Binh province.
At this interview, the applicant claimed that he had verbally complained about the bribes police would ask him to pay when he was driving his bus and these complaints had caused him further problems. He had later submitted a written complaint to a higher level in [Province 1] but stated that he had no copy of this complaint.
The applicant claimed that the vehicle accident for which he was liable to pay [amount] Vietnamese Dong in compensation had occurred whilst he was driving a tourist bus from Hanoi to Quang Binh province. However, the police would not release his documents including his driver’s licence unless he paid a further [amount] Vietnamese Dong to them. He could not afford to pay this money, so he became unemployed.
The decision record notes that when the applicant was asked to explain the inconsistency between his claim that he had stopped working as a bus driver in 2009 and his claim that he was involved in a motor vehicle accident in his employment as a bus driver in September 2010, the applicant stated that he would work for the [Business 1] on call. He claimed that when he refused to pay the additional sum to the police, they refused to release his documents and threatened to imprison him and charge him with interfering with justice. He claimed that the police had told him that the victim in the accident was the [relative] of a police officer.
The applicant claimed he had been involved in further political activities in Australia in 2018 and 2019, but no activities had been organised in 2020 due to the Covid pandemic. He claimed he would attend and put-up signs at protests and community festivals. The signs were opposed to the Communist Party. He claimed he last did this at a festival in [a location in] Perth in 2019.
The applicant claimed that because he was interviewed by Vietnamese authorities whilst in detention in Australia and because his personal information had been inadvertently leaked by the Department in 2014, he feared that he would be identified by Vietnamese authorities as having departed illegally so he would be at risk of harm from these authorities. He also claimed that apart from summoning his wife to the police station, the police had also visited his wife on many occasions seeking his whereabouts.
Documents provided to Tribunal
On 16 February 2023, the applicant’s representative provided the Tribunal with the following additional documents that had not been provided to the Department:
·An updated letter of support from [Leader A], president of [Community Organisation 1], discussing the applicant’s involvement in this organisation and highlighting one incident where the applicant repaired a machine that the organisation needed for a festival.
·A further certificate of appreciation presented to the applicant by [Community Organisation 1] for his assistance at events held in February 2018.
·An undated ‘thank you’ note which appears to have been presented to the applicant from work colleagues in Australia.
·A confirmation of employment letter from the applicant’s employer in Australia.
·Four photographs of the applicant submitted under the title ‘political activities’ with no further explanation. Two of the photographs show the applicant with other people at what appear to be Vietnamese community events. The South Vietnam flag is evident in both these photographs. The other two photographs show the applicant, along with other people, campaigning in an Australian federal election. From the name of the candidate appearing in the photographs it appears that these photographs were taken during the 2019 federal election campaign.
This information was resubmitted to the Tribunal on 31 March 2023.
Also submitted to the Tribunal on 3 April 2023 were the following documents not previously provided to the Department or the Tribunal:
·A translated document from the Police of [Province 1] dated [in] November 2010 and titled ‘Decision to Temporarily Seize Evidences, Means of Administrative Violations in Order and Safety of Road Traffic’. This documents states that the vehicle registration certificate and vehicle insurance policy of a vehicle, as well as the driver’s licence of the applicant would be temporarily held at a police station [between dates in] November 2010 as the vehicle had been involved in a traffic accident. There is no indication on this document of the type of vehicle that this matter relates to.
·A translation of the applicant’s Vietnamese birth certificate and household registration book.
·A copy of a ‘laissez passer’ issued to the applicant by Vietnamese authorities [in] August 2013.
·A copy of the biodata page of a Vietnamese passport in the applicant’s name issued [in] February 2004, which expired [in] 2009.
Submission to Tribunal
In a submission dated 3 April 2023, the applicant and his representative provided a summary of the applicant’s employment history and claims for protection, as had been requested at the case management hearing held on 21 February 2023.
In this submission, the applicant claimed that he had worked as a truck driver from 1995 to 2000 for a company called ‘[Business 3]’. From 2000 to 2003 he worked as a bus driver for a person named ‘[Person B variant]’ and then from 2003 to 2009 he worked as a bus driver for a private tour company called ‘[Business 2]’ run by a person called ‘[Person C]’. The applicant claimed that in 2010 and 2011 he worked as a bus driver for [Business 1] on a casual basis.
The applicant restated his previous claims regarding having been forced to pay bribes to police at checkpoints in Vietnam during his employment as a bus driver. He claimed that the need to make these regular bribe payments caused him significant financial hardship and it was difficult for him to earn enough money to subsist and financially support his family. He stated that it is common in Vietnam for local authorities to expect bribes from citizens, so he feared reporting these activities in case he was considered as going against the State and then subject to further fines or detention.
The applicant claimed that he eventually became hesitant to work as a bus driver, so he stopped working for the ‘[Business 2]’ company in 2009 and helped his wife at her [products 1] store.
In relation to the vehicle accident [in] September 2010, the applicant claimed that on that day he was driving a bus for the [Business 1] company from Hanoi to Quang Binh province when he was involved in an accident with a motorbike. The female rider of the motorbike was injured and taken to hospital. The police who arrived at the accident scene asked the applicant to drive the bus to [a named] police station for further investigation. The applicant was detained by the police and the police also held onto the bus as well as the registration papers, the insurance certificate for the bus and the applicant’s driver’s licence. The [Business 1] company bailed him out and he was released from the police station.
The applicant claimed that he subsequently contacted the injured victim, and they reached a settlement in exchange for the payment of [amount] Dong. The victim wrote a release statement, and the applicant took this statement to the police to request return of the bus. At the police station, the police requested a further [amount] Dong to be paid to the victim’s family within 15 days. The applicant disagreed and believed this was an excuse by the police to obtain a bribe to release the bus. The applicant could not afford this money as his father had [a medical condition] and was in hospital. The police threatened to refer him to the crime department and to charge him with a criminal offence if he did not pay this money by [a day in] November 2010.
The applicant claimed that sometime after [November] 2010, the police called him and told him that if he did not turn up to the station, they would issue a summons and a wanted notice, so the applicant went into hiding at his father-in-law’s house and at his father’s house. He claimed the police continued to search for him, but they could not locate his whereabouts and he remained in hiding until the day he escaped to Australia.
In this submission, the applicant also discussed his involvement with [Community Organisation 1], which he joined after he arrived in Australia. In 2016 he became more actively involved with this group as a ‘handyman’ and helped them with community festivals as well as fixing machines and performing [occupation 2] work. He became an active member and started participating in political activities such as street rallies and fundraising events with the purpose of criticising the Vietnamese Communist government and their corrupt political agenda that threatens the livelihood of their citizens.
The applicant claimed that he helped prepare political banners, and the Australian and Republic of Vietnam (South Vietnam) flags were flown at these events. He claimed that he assisted at these events with labour and was the man behind the scenes.
The applicant claimed that the Vietnamese government does not allow people to comment or disclose information that criticises their actions and he has publicly supported activities in Australia that are deemed critical of the Vietnamese government so he was concerned that he would be arrested upon return to Vietnam.
The applicant stated that he had been interviewed by Vietnamese authorities whilst in detention in Australia, so the Vietnamese police have a record of his name and are aware that he is an asylum seeker. The police even contacted his wife in Vietnam after this interview. He is afraid that he would be arrested on return to Vietnam as a failed asylum seeker.
The applicant claimed that he feared the police would charge him with a criminal offence for the accident in 2010 because he did not agree to pay the bribe they demanded. He feared he would be detained and arrested, and he would be unfairly tried because he did not cause the accident and had resisted paying corruption money to the Vietnamese police. He also feared arrest in Vietnam because he had attended events and activities in Australia that were deemed as being opposed to the Vietnamese government.
Tribunal Hearings
The first Tribunal hearing held on 21 February 2023 was a case management hearing that was held to discuss issues relating to how the matter would proceed given that the applicant had two review applications before the Tribunal that dealt with identical or almost identical fact circumstances, claims and evidence.
At this hearing, the applicant and his representative agreed that the Tribunal would deal with the two review applications jointly, would treat all information and evidence submitted as relating to both applications, would hold joint hearings and would publish one joint decision at the end of the process.
The applicant and the representative also agreed to submit a summary of the applicant claims and any further documents or other information the applicant sought to rely on prior to the next Tribunal hearing. This information was submitted on 31 March 2023 and 3 April 2023.
At the second Tribunal hearing held on 9 August 2023 the applicant claimed that he had been born in Quanh Binh and had lived in this area before he came to Australia. His parents were deceased, but his stepmother was still alive. His father had been [an occupation 3] and his mother had been a farmer. His mother died when the applicant was very young.
The applicant claimed that he was one of [number] siblings. [Gender distribution.] All of his siblings were still alive and living in the Quanh Binh area. The applicant stated that he had been married in 2003 and had [number] children, [genders and years of birth]. [They] were currently living in the family home with his wife.
The applicant claimed that his wife worked selling goods. He added that when he first arrived in Australia, his wife had a small shop but later on the government resumed the shop and she subsequently [started another business]. When asked if he knew the reason why the government resumed the shop, the applicant stated that he did not understand the reasons why this had happened because he was in Australia at the time. He claimed that this happened around 2017.
The applicant claimed that when he married his wife in 2003, the couple continued to live with his parents for a few months before moving to their own place. When asked where he was living before he came to Australia, the applicant stated that he was living in Quanh Binh in a house that he jointly owned with his wife. He confirmed that his wife and family had continued to live in this house after he came to Australia.
The applicant stated that he was in regular communication with his family and would usually speak to them by telephone around once a week on Saturday or Sunday when he was free. He also confirmed that he would regularly send money to his family from Australia.
When asked if he had ever travelled outside Vietnam before he came to Australia, the applicant stated that he had not done so. He added that he did not go to other countries, but he would transport people to the border.
When asked what work he had performed in Vietnam before coming to Australia, the applicant stated that he was a driver. He claimed that in 1995 he started driving trucks. In 2000 he transferred to driving tourist buses and he did that job for nearly 10 years. He claimed that he stopped driving tourist buses in 2010 after an accident because the police took his papers away. He claimed that this accident happened [in] September 2010 and the police wouldn’t let him drive after that.
The applicant claimed that after he stopped driving buses in 2010, he looked after his dad who had [a medical condition]. He added that he lived either at his parents’ house or his in-laws house because the police were looking for him.
It was pointed out to the applicant that earlier in the hearing he had stated that he had lived at his own family home, which he owned jointly with his wife, before he came to Australia. The applicant responded that he lived in his own home, but he tried to escape from the police who were looking for him after the accident.
The applicant was asked what problems he had in Vietnam before he came to Australia. He responded that he was trying to escape police, so he had to escape from Vietnam. He claimed that he did not cooperate with the police to resolve the accident matter that occurred in September 2010. He added that he did not cooperate because he did not have the money to bribe the police.
When asked if he had experienced any other problems in the past in Vietnam apart from the problems arising from this motor vehicle accident, the applicant claimed that he used to drive a bus between Hanoi and Quanh Binh. In 2008 and 2009 the travel industry expanded rapidly and there were many more tour buses than before. Initially his job was good and stable but after 2007 there was far more competition. Also, the police put pressure on people to pay money to them and the applicant did not cooperate with the police. When asked to explain in what way he did not cooperate with the police, the applicant stated that he was against paying illegal money to police. He confirmed that he was claiming that he refused to pay bribes to police at checkpoints on the road when working as a bus driver. He claimed that when he refused to make these payments the police would make it difficult for him. His bus would then run late, and he would be deducted money from his salary. He would also have arguments with his company because his boss did not support him.
It was pointed out to the applicant that his claim at the hearing that he refused to pay these bribes demanded by police at regular checkpoints whilst he was driving his bus was somewhat inconsistent with claims he had previously made to the Tribunal and the Department that he would usually pay these bribes from his own funds, which made it increasingly uneconomical for him to continue driving buses. The applicant was asked which of these two versions of events that he had provided over time was the correct version. The applicant responded that he refused to pay the bribes, so the police often created difficulties for him. He added that he opposed what the police were doing and never paid the bribes they asked for. He claimed that he frequently argued on the road with the police, which would make his bus late for its destination.

The applicant confirmed that he arrived in Australia by boat [in] April 2013 and did not have a valid visa on his arrival.
On three occasions at the hearing the applicant was asked if he had used the services of people smugglers to get to Australia. On each occasion the applicant refused to directly engage with the question, instead stating on each occasion that his brother-in-law had helped him to escape from Vietnam and had helped to pay for the process to get to Australia. He confirmed that his wife’s brother paid the sum of US$10,000 to facilitate the applicant’s passage to Australia. The applicant confirmed that since he arrived in Australia, he had repaid this money to his brother-in-law.
The applicant confirmed that he did not use a valid Vietnamese passport to leave Vietnam and that he left Vietnam illegally without going through an immigration checkpoint.
The applicant stated to the Tribunal that he had previously held a Vietnamese passport, but this passport had now expired. When asked where he travelled using this expired passport, the applicant stated that he used the passport at the border to [two specified countries] but added that he did not actually go to these countries. The Tribunal asked the applicant why he needed a passport if he did not go into these countries. He stated that you needed a passport at the border. He elaborated that at the time he was issued with this passport he was driving a truck and he needed a passport to cross the border into [two specified countries], where he would load his truck with goods from a nearby warehouse and then bring the goods back into Vietnam. He then confirmed his claim that he needed his passport in order to enable him to perform his work as a truck driver.
The Tribunal pointed out to the applicant that the expired passport that he had previously provided to the Department indicated that this passport had been issued to the applicant in 2004 and had expired in 2009. The applicant was asked to confirm if this was the passport that he used to facilitate his work as a truck driver.
At this point in the hearing the applicant looked at a document on his mobile telephone and confirmed to the Tribunal that this passport had been issued in 2004 and expired in 2009. He then stated to the Tribunal that he used this passport to transport tourists to [two specified countries].
The Tribunal pointed up to the applicant that after he had looked at the document on his telephone, he had changed his evidence to the Tribunal. The applicant responded that the passport had expired a long time ago which was why his previous answer was wrong.
The Tribunal stated to the applicant that it was concerned that he had changed his claims as soon as he realised the dates on this expired passport did not correspond with the dates that he had previously claimed he had been driving trucks or buses respectively. The applicant responded that he could not remember the dates that the passport had been issued.
The Tribunal accepted that the applicant may not necessarily remember the dates on which a passport had been issued to him. However, it pointed out to the applicant that it would expect him to remember the reasons for which he needed to use this passport and it would also expect that he would be able to provide consistent evidence over time about these reasons. Instead, the applicant had appeared to change his claims at the hearing as soon as he realised his earlier evidence did not match the dates he had claimed to be working in certain jobs. On this basis, the Tribunal asked the applicant why it should accept that he had been a witness of truth in relation to these claims. The applicant responded that the Tribunal should accept his evidence because he could not remember the dates and he was very anxious.
The applicant stated that he came to Australia rather than some other country because at the time his brother-in-law knew of a pathway to Australia. He claimed that he did not have any relatives in Australia. He stated that he had been working on a [farm] in [Town 1], since 2015. He was currently living in [Town 2] and would drive to this farm every day. He shared the property where he lived with a female friend.
The applicant was asked to outline what activities he had been involved in since he came to Australia. He responded that he would help the community. When asked which community he would assist, the applicant stated that he would help [Community Organisation 1]. He claimed that when this group held fairs, he would help repair things and set things up. He would also help with meetings and demonstrations.
When asked which demonstrations he had been involved in, the applicant stated that he would help [Community Organisation 1] by attending their meetings and helping them to hang posters and backgrounds. He claimed that this group included a person called [name] and a doctor. He added that the president of this group was called [Leader A variant]. When the Tribunal pointed out to the applicant that the documents he had previously provided to the Tribunal indicated that the president’s name was actually [Leader A], the applicant agreed this was the case but added that [part of this name] were the first names of this man. The Tribunal pointed out to the applicant that this was not how this man had written his name on the documents that the applicant had previously provided to the Tribunal.
The applicant was asked to highlight the last time he had been involved in any activities of this group. He responded that last year (being 2022) he took part in a fair which was held at a school in [Town 2]. When asked if he had attended the organisation’s Tet festival activities in 2023, the applicant responded that he always helped when the community asked him to assist. When again asked if he attended any events held by this organisation in 2023, the applicant stated that [Leader A] had not sent him any emails this year.
The applicant was asked to outline in his own words what he feared about returning to Vietnam now or in the reasonably foreseeable future. He responded that he was anxious, and he could not sleep lately because he was very worried. When asked why he was worried, the applicant responded that he was worried that if he returned to Vietnam the government would arrest him because he did not cooperate with police to resolve many issues and because he came illegally to Australia. He also added that in Australia he had helped the Viet Tan party.
On the basis of this response, the applicant was asked how he had been involved with the organisation known as Viet Tan. He responded that he had helped [Leader A] and other people in [Community Organisation 1]. He added that these people were involved in these activities.
It was pointed out to the applicant that on the basis of the documentation provided to the tribunal, [Leader A’s] group was [Community Organisation 1] and was not the Viet Tan. It also did not appear from this documentation that [Community Organisation 1] was involved with the Viet Tan in any way. The applicant responded that [Leader A] organised these festivals and the Viet Tan party collected for charity at these events.
When asked how he was personally involved with the Viet Tan, the applicant responded that he helped them to make banners.
It was pointed out to the applicant that in all his previous evidence, including evidence he had provided earlier at the hearing, he had claimed that he would assist [Community Organisation 1] to make banners and had not previously claimed that he had ever assisted the Viet Tan in any way. The applicant responded that the Viet Tan were also part of the community, and they were usually present at festivities.
The applicant was asked why he had not made any mention of his involvement with the Viet Tan in the statement he had provided to the Tribunal in April 2023 if he was in fact involved with this group in any way. He responded that he would help the Viet Tan make banners and added that he would help in the background.

100. It was pointed out to the applicant that in all his previous claims to both the Department and the Tribunal he had never previously mentioned any involvement with the Viet Tan. On this basis, the Tribunal asked the applicant why it should accept that he was a witness of truth at the hearing in relation to these new claims. The applicant responded that he did what they delegated to him, and he usually worked in the background.
101. The applicant was asked if he had any other fears about returning to Vietnam. He responded that he was afraid the police would arrest him because the Vietnamese agents had investigated him whilst he was in the detention centre in Australia.
102. When asked if he had any other issues that he wished to directly raise with the Tribunal, the applicant responded that he had no other issues he wished to discuss.
103. In relation to his work history in Vietnam, it was pointed out to the applicant that in both his visa applications that he had made to the Department he had claimed that he was employed as a bus driver at two separate companies from 2000 to 2009 and that he was then employed as [an occupation 1] from 2009 to 2013. Based on the delegate’s decision record, he had initially made similar claims at the commencement of the interview with the delegate held on 7 September 2020. At this interview he had initially claimed that he drove buses until 2009 and then he became unemployed, so he helped his wife to sell things in her [products 1] store from 2009 onwards. It was pointed out to the applicant that he had made no mention at all that he had worked casually driving buses for the [Business 1] company in 2010 and 2011 until it was pointed out to him at this interview with the delegate that there was an obvious inconsistency between his claim to have been involved in a traffic accident whilst driving a bus in September 2010 and his previous claims that he had stopped driving buses in 2009.
104. The Tribunal pointed out to the applicant that he had repeated his claim that he was driving buses for [Business 1] in 2010 and 2011 in the submission he had provided to the Tribunal in April 2023. However, earlier in the hearing the applicant had claimed he stopped working for this company after the accident [in] September 2010.
105. The applicant was asked why he had not stated in either of the applications that he had lodged with the Department that he had driven buses casually in 2010 and 2011 if he had in fact been performing this work at the time. The applicant responded that in 2009 he stopped working for the company in Hanoi to help his wife. [Business 1] was a new company, and they did not have many clients so the applicant could only drive a few trips a year for them. They would call him if they had some work for him and without this work he had to stay home. He added that he had no contract with this company as he wasn’t an official employee. The applicant claimed that he never drove for this company again after the accident that occurred [in] September 2010 because the police did not allow him to drive after this accident.
106. On the basis of this response, the applicant was asked why he had stated in his written statement to the Tribunal in April 2023 that he was driving for this company on a casual basis in 2010 and 2011 if in fact he stopped driving for this company after [the day in] September 2010. The applicant responded that the period lies between 2010 and 2011 so he put it in his claims. The Tribunal pointed out to the applicant that September 2010 is not in the year 2011 and on this basis the Tribunal asked the applicant why he claimed in his statement submitted in April 2023 that he had been working for this company in 2011 if in fact he had not done so. The applicant responded that it was in the interval between 2010 and 2011.
107. The Tribunal pointed out to the applicant that the fact that he had not provided consistent evidence over time about his work history and had only provided claims about driving buses casually in 2010 and possibly 2011 when inconsistencies in his evidence had been pointed out to him may lead the Tribunal to find that he had not been a witness of truth in relation to these claims. It may also lead the Tribunal to find that he was never a bus driver as claimed and that he was never involved in a traffic accident in September 2010 as claimed. In response, the applicant stated that he was telling the truth. He added that he did work for the [Business 1] company in 2010 and 2011 but had to stop working in September 2010 because the police took his papers.
108. It was pointed out to the applicant that if the Tribunal found that he was never a driver as claimed it may also find that he never suffered any of the harm he claimed to have suffered in the past in Vietnam from the police including demands for bribes at regular checkpoints and demands for a further bribe to settle the traffic accident matter. The applicant responded that these things happened in Vietnam, and he never told lies. He added that he may not have been very good at presenting his story.
109. The applicant confirmed his previous claims that he was involved in a motor vehicle accident with a female motorbike rider [in] September 2010 whilst he was driving a bus and that he had to pay [amount] Vietnamese Dong (approximately AU$[amount]) in compensation to the victim of this accident. The Tribunal asked the applicant when he signed an agreement to pay this money. He responded that he gave the money to the family, and they gave him a receipt for the payment. He claimed that this happened at the hospital because the family was in the hospital at the time. He added that this payment and receipt were finalised around two weeks after the accident occurred.
110. The applicant confirmed that the handwritten document he had previously provided to the Department and the Tribunal was the receipt that he was referring to in relation to this matter. On this basis, the applicant was asked why the translation of this handwritten document indicated that the traffic accident occurred on [a day in] September 2011. In response the applicant claimed that he put things on this document that were according to the documents the police had given him.
111. When asked to highlight which police document indicated that the accident had occurred on [a day in] September 2011, the applicant produced a copy of the police document dated [in] November 2010 which he had previously provided to the Tribunal and the Department. The Tribunal pointed out to the applicant that on this document the date of the accident was recorded as [the day in] September 2010. In response, the applicant claimed that it took a few days after the accident for the investigation to commence.
112. It was pointed out to the applicant that in the handwritten document the year that the accident occurred is incorrectly recorded and he was asked to provide an explanation for this discrepancy. The applicant responded that after the accident police kept his car for a few days and he used the date that the record was made. He added that the company he was driving for sponsored him out and helped to make the record and stated that he used the date the record was made.
113. It was again pointed out to the applicant that this handwritten record or document clearly stated that the accident happened on [a day in] September 2011. The applicant responded that he was in shock because he was preparing for deportation papers, and he was panicking.
114. Given that this handwritten document had no stamps or other official imprints on it and given that there was an incorrect date for the accident recorded on this document, the Tribunal asked the applicant why it should accept that this is a genuine document and why it should accept that this agreement was ever made as claimed. The applicant responded that it was confirmation saying that the family received this money as compensation. He added that he brought the paperwork to the police, and they returned his papers to him.
115. The applicant confirmed his previous claims that after he had been interviewed by Vietnamese officials in detention in Australia, police in Vietnam visited his wife and summoned her to the police station for an interview. The applicant was asked what the police asked his wife during these interactions. He responded that they asked her identity details, the applicant’s identity details and where the applicant was living at the time. He claimed that his wife did not tell them that the applicant was in Australia because she was worried.
116. The applicant was asked how many times the police had either visited or summoned his wife for an interview. The applicant responded that they sent a summons to get her to the police station to interview her about him. He claimed that after his wife was summoned to the police station, the police investigated the house as well. The applicant also claimed that the police had stopped by the house and casually asked his wife about the applicant, but the wife told them that he had not returned. He could not remember when this interaction took place and added that it was too long ago. The applicant stated that it had been a long time since the police had enquired with his wife about his whereabouts.
117. The Tribunal stated to the applicant that is accepted that the police may have interviewed his wife in relation to the applicant’s whereabouts after the Vietnamese authorities found out that he was in Australia. However, almost 10 years had passed since that time. On this basis, the applicant was asked why this would present a problem for him if he returned to Vietnam now or in the reasonably foreseeable future. He responded that he feared that the police would follow up his case and he did not know what would happen if he returned.
118. The applicant accepted that he had departed Vietnam illegally without a passport and without going through an immigration checkpoint. He also accepted that by doing this, he had broken the law of Vietnam that required citizens to leave the country legally using a passport and going through proper immigration points. On this basis, the Tribunal stated to the applicant that country information from the Department of Foreign Affairs and Trade (DFAT) suggested that if he returned to Vietnam, he may be liable to pay an administrative fine for this breach of the law. He was asked why this type of fine would cause any particular problem for him. The applicant responded that they would increase the penalties for him because he had a car accident and because he opposed the police. He had breached the law in Vietnam and had escaped to go overseas so they would fine him. He had also helped [Community Organisation 1] and the Viet Tan in Australia, so he feared the secret police may have taken photos of him whilst he was in Australia.
119. It was pointed out to the applicant that the country information from the Australian authorities suggested that it was a relatively common thing for people who had departed Vietnam illegally and then returned to be issued with an administrative fine upon return, to pay the fine and then get on with their lives without any further harm. On this basis, he was asked why he could not do the same thing when he returned to Vietnam. The applicant responded that he had already breached the law by not resolving the motor vehicle accident. He confirmed his claims that he feared further action from the authorities in Vietnam because he had not resolved this motor vehicle accident before he left Vietnam rather than any fear relating to his illegal departure from Vietnam.
120. In relation to the applicant being a failed asylum seeker, the Tribunal referred the applicant to country information from the DFAT that indicated there was no evidence that the Vietnamese government used criminal penalties against failed asylum seekers, including those who depart illegally. This information indicated that failed asylum seekers may be detained on arrival in Vietnam and interviewed or questioned but this questioning was primarily related to obtaining information about illegal people smugglers. Unless the person was accused of being a people smuggler, they were then released into the community. The information indicated that at the very worst, people who had left the country illegally through the aid of people smugglers would be subject to an administrative fine, as previously discussed with the applicant.

121. On this basis, it was pointed out to the applicant that this information would indicate that if he returned to Vietnam, he would not face any serious harm because he was a failed asylum seeker or because he departed the country illegally in 2013. The applicant responded that he was worried about returning to Vietnam because he had escaped overseas, and he had been involved in various activities in Australia helping the Viet Tan and [Community Organisation 1]. He added that the Communists in Vietnam were against these things and that is what he was worried about.
122. The Tribunal discussed country information from the DFAT with the applicant that indicated that political activists who publicly criticise the Vietnamese government are at moderate risk of official discrimination in Vietnam. The Tribunal stated that it accepted that the applicant had attended some events organised by [Community Organisation 1] but on the basis of the information provided to the Tribunal it did not appear that the applicant was an organiser or key figure in that organisation and there was no evidence before the Tribunal that indicated that the applicant had ever made or published any public comments in any forum whatsoever that criticised the Vietnamese government. There was also no evidence before the Tribunal that the applicant intended to do so in the future. On the basis of this country information and the applicant’s lack of public criticism of the Vietnamese government it would appear that he would not be at risk of serious harm if he returned to Vietnam because of his activities in Australia. In response, the applicant stated that he held up banners opposing the Vietnamese government. When it was pointed out to the applicant that the only banners that the Tribunal had seen the applicant holding related to an environmental issue rather than any direct criticism of the Vietnamese government, the applicant stated that the issue affected the environment and the ocean. It was also pointed out to the applicant that the photographs he had provided showing him holding up banners appeared to have been taken inside a building where no member of the public, other than members of his own organisation, appeared to be present. The applicant responded that the photos were taken in a hall in [Suburb 1].
123. The Tribunal stated to the applicant that it accepted that a departmental data breach in February 2014 had exposed some of the applicant’s details online for a few hours. It also accepted that during this time it was possible for anyone, including Vietnamese authorities, to access this information. However, in the applicant’s case the Vietnamese authorities already knew that he had left Vietnam illegally and that he was seeking asylum in Australia because they had already interviewed him in detention. Therefore, in the applicant’s case the data breach did not appear to provide the Vietnamese authorities with any additional information that they did not already have about the applicant. In response, the applicant stated that it was his view that the Secret Service of Vietnam look at community activities in Australia which makes it dangerous for him if he returned to Vietnam. The applicant’s representative agreed with the Tribunal that in the applicant’s personal circumstances there was no information that could have been contained in the data breach that would have provided the Vietnamese authorities with any information they did not already possess about the applicant and his whereabouts.
124. The Tribunal pointed out to the applicant that country information from DFAT suggested that document fraud was common in Vietnam and that it was common to obtain what appear to be genuine documents through fraudulent means. This document fraud was facilitated by the general corruption that persisted within Vietnamese society. Given this country information and given the concerns the Tribunal had previously expressed about the handwritten agreement provided by the applicant, the Tribunal asked the applicant why it should accept that the documents he had provided over time such as the police document indicating the confiscation of the applicant’s driver’s licence and vehicle documentation in November 2010 were genuine and were not fraudulent. In response, the applicant stated that the police document included the signatures of people in charge, and he would be guilty of a serious crime if these people suspected that he had fraudulently obtained their signatures. He claimed that the penalty for making false documents was very serious, which proved that this document could not be fake.
125. The Tribunal asked the applicant if he had anything else he wished to discuss with the Tribunal before the end of the hearing. In response, the applicant asked whether he could continue to work after the hearing or whether he had to stop work. It was pointed out to the applicant that the Tribunal was not involved in the issuing or processing of visas or in determining work rights, and that he should consult his representative or the Department about his work rights in Australia.
126. The representative indicated that she had no further information she wished to provide the Tribunal and stated that she believed all of the grounds for the application had been covered.
FINDINGS AND REASONS
Tribunal Case Number 1907315
127. For the following reasons, the Tribunal has concluded that the decision under review in Tribunal Case Number 1907315 should be affirmed.
128. There is no issue as to identity or nationality. Although the applicant arrived in Australia without a valid passport, over time he has produced copies of his Vietnamese birth certificate, driver’s licence and family register, Accordingly, the Tribunal accepts the applicant’s identity as claimed. The Tribunal also accepts that the applicant is a national of Vietnam and has assessed his claims accordingly.
129. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
130. The applicant has claimed that whilst living in the past in Vietnam he was subjected to demands for arbitrary fines or bribes from the police whilst he was employed as a bus driver in Vietnam and that the payment of these fines or bribes caused him economic hardship that threatened his capacity to subsist until he was forced to give up bus driving. He has also claimed that he was involved in a motor vehicle collision in his employment as a bus driver and that the police demanded the payment of a large bribe from him following this collision. As he could not pay the fine, the police threatened to charge him with a criminal offence so he went into hiding until he could escape from Vietnam and come to Australia.
131. The applicant has provided inconsistent and contradictory evidence over time about when he was employed as a bus driver in Vietnam. In both application forms lodged with the Department, the applicant claimed that he had been employed as a bus driver for two different companies in Vietnam from 2000 until 2009 and had then been employed as [an occupation 1] from 2009 until 2013, when he left Vietnam. However, in both applications made to the Department he also claimed that he had been involved in a motor vehicle collision in September 2010 whilst he in the course of his employment as a bus driver.
132. At the second interview with the delegate, the applicant initially confirmed his claims that he had worked as a bus driver from 2000 until 2009. He also stated that from 2009 until 2013 he was unemployed but would help out his wife in her [products 1] store from time to time. However, when confronted with the contradiction between his claims that he only worked as a bus driver until 2009 with his other claim that he was involved in a collision whilst driving a bus in September 2010, the decision record notes that the applicant changed his claims and stated that in 2010 he was working for a company called [Business 1] on an on-call basis.
133. In a written statement provided to the Tribunal on 3 April 2023, the applicant claimed that he had worked as a bus driver from 2000 to 2009 and had then worked for [Business 1] as a bus driver in 2010 and 2011 on a casual basis.
134. However, at the hearing, the applicant provided further inconsistent evidence about when he worked as a bus driver. He stated that he had originally been a truck driver but had switched to driving passenger buses around 2000. He confirmed his previous claims that he had worked as a bus driver from 2000 to 2009 and had then continued to do some driving on a casual or on-call basis for [Business 1]. However, he stated clearly at the hearing that he never again worked for [Business 1] after the alleged collision in September 2010 because the police had confiscated his paperwork and rescinded his right to drive buses.
135. At the hearing, the applicant also claimed that he had once needed a Vietnamese passport to facilitate his previous work as a truck driver where he would collect goods from warehouses located in border areas of [two specified countries] and would then transport these goods into Vietnam. His passport facilitated his passage through the border crossing between these countries. After checking the copy of an expired passport on his mobile phone during the hearing, the applicant confirmed that the copy of an expired passport he had provided to the Tribunal was the passport he had used for these purposes. This passport was issued to the applicant [in] 2004 and expired [in] 2009.
136. It was pointed out to the applicant at the hearing that the dates on this expired passport and his claims that he used this passport in his work as a truck driver created a direct inconsistency and contradiction with his previous claims that he was working as a bus driver for the entirety of the period when the passport was valid. The applicant then changed his evidence and stated that he was using the passport to transport passengers in his capacity as a bus driver. When the Tribunal expressed its concerns that the applicant had appeared to change his evidence at the hearing after the failings of such evidence were pointed out to him, the applicant indicated that he should not be expected to remember the dates on which a passport was issued as it was so long ago (which is not an issue that the Tribunal disputes) but provided no coherent explanation as to why he could not provide consistent evidence about whether he needed to use this passport in his employment as a truck driver or as a bus driver.
137. The Tribunal would expect that the applicant would be able to provide consistent evidence over time about when he worked as a bus driver as this is information that he would be aware of from his own personal knowledge. This includes evidence about whether the applicant was employed on a casual or on-call basis for [Business 1] in 2010 and 2011. The Tribunal would also expect that the applicant would be able to provide consistent evidence over time about the reason why he needed to use his expired passport, and particularly whether he used it in connection to work as a bus driver or as a truck driver, as this is also information that he would be aware of from his own personal knowledge.
138. Given that the applicant has not provided consistent evidence over time about when he worked as a bus driver or about the reason he needed to use his expired passport, but instead provided inconsistent and sometimes contradictory evidence in relation to these matters, the Tribunal finds that the applicant has not been a witness of truth in relation to these matters and that his evidence in this regard lacks credibility. Accordingly, the Tribunal has placed no weight on the applicants claims over time that he was ever employed as a bus driver or that he ever suffered any harm in the past in Vietnam due to his employment as a bus driver.
139. The applicant has provided two documents in support of his claims that he was involved in a motor vehicle collision in September 2010. However, none of these documents state that a bus was involved in this collision instead using terms such as automobile and vehicle. Accordingly, given that no reference is made to a bus in these documents, the Tribunal has placed no weight on these documents when determining whether the applicant was ever a bus driver or whether he was driving a bus when the alleged collision occurred.
140. On the evidence before it, and particularly on the inconsistent and contradictory evidence over time about when he worked as a bus driver and what he needed to use his expired passport for, the Tribunal does not accept that the applicant was ever employed as a bus driver in the past in Vietnam as claimed. Accordingly, the Tribunal finds that the applicant was never employed as a bus driver in the past in Vietnam as claimed.
141. Based on this finding, the Tribunal finds that the applicant was never subject to demands for the payment of arbitrary fines or bribes by police in his alleged capacity as a bus driver in Vietnam, that the need to make such payments never caused him any economic problems or threatened his capacity to subsist and that he never gave up his alleged employment as a bus driver to avoid the ongoing impact of these demands.
142. In relation to the alleged motor vehicle accident in September 2010, the Tribunal has considered the documents provided by the applicant over time to support his claim that this accident occurred.
143. The handwritten document that purports to be an agreement or settlement between the perpetrator and the victim of this collision contains no visible stamps or other official imprints. At the hearing, the applicant stated that he had personally prepared this document as a settlement agreement and presented it to the victim and her family when the victim was still in hospital to obtain their agreement and consent. Given that the applicant personally prepared this document, the Tribunal would expect that he would insert the correct date of the collision rather than some different date. The applicant has consistently claimed that the collision occurred in September 2010. However, the written document states clearly that the incident occurred on [a day in] September 2011. The Tribunal does not consider the explanations provided by the applicant at the hearing are plausible or accurate as they appeared to be created on the spot to cover up the failings in his evidence rather than provided as a true explanation for the discrepancy. At the hearing, the applicant initially claimed that he used the date on the police document about the incident that he had also provided to the Tribunal. When it was pointed out to him that the date of the accident that was recorded on the police document was [the day in] September 2010 rather than [the day in] September 2011, the applicant stated that it took the police a few days to investigate the incident. This offers no explanation in the discrepancy between the years 2010 and 2011. He then suggested that the date the agreement was made had been used and that he really did make the payment recorded in the agreement, which appeared to be responses calculated to cover up the failings in his previous evidence about this document. Accordingly, the Tribunal has placed no weight on this document when considering the applicant’s claims.
144. The document dated [in] November 2010 which purports to be a police documents evidencing the alleged collision in September 2010 and the events surrounding this aftermath of the collision. The Tribunal has considered this document in the context of findings that the applicant has not been a witness of truth in relation to his claims that he was a bus driver in Vietnam and in the context of country information about the prevalence of document fraud in Vietnam.
145. In its latest country information report on Vietnam, the Department of Foreign Affairs and Trade (DFAT) reports that document fraud is common in Vietnam and that fraudulently obtained genuine documents are a common phenomenon:
Document fraud is common in Vietnam. DFAT understands from sources that fraudulently obtained genuine documents are more common than documents that were fake in the first place. This is sometimes facilitated through corruption, but could also depend on where the document is issued and the skill and experience of the issuing officer.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 2022, 11 January 2022, p 35, para 5.42.

146. The same report suggests it is easier to obtain and use fraudulent paper-based documents (such as the document produced by the applicant) than electronic cards and documents that can be checked against a data base.[2] There is also an ongoing problem with documented that are doctored, which is explained in the report as follows:
Another common form of fraud is to doctor documents using applications like Photoshop that are then uploaded onto online systems. Fraudulent documents of this type are easily detected, especially when the original is later presented and it does not match the doctored copy uploaded to the system.[3]
[2] Ibid, p 35, para 5.43.
[3] Ibid, p 35, para 5.44.

147. The Tribunal has considered the applicant’s explanation at the hearing that he would not provide a doctored or fraudulent report because it would expose him to the risk of prosecution in Vietnam. However, the Tribunal does not accept this explanation as the applicant has provided this document to Australian authorities rather than Vietnamese authorities and because the country information about the prevalence of document fraud in Vietnam makes it clear that the risk of prosecution does not appear to be a sufficient deterrent to prevent document fraud from being a common problem.
148. Given the country information from DFAT suggesting that paper documents such as the one provided by the applicant can be easily obtained through fraudulent means and can also be manipulated using various applications, and given the finding that the applicant has not been a witness of truth in relation to his claims that he was a bus driver in Vietnam, the Tribunal does not accept that this police report is a genuine document that genuinely evidences a police report made about this alleged motor vehicle collision. The Tribunal has therefore not placed any weight on this document when considering the applicant’s claims about this alleged incident.
149. Based on the evidence before it, the Tribunal is not satisfied that the applicant was ever involved in a motor vehicle collision in or around September 2010, either as a bus driver or otherwise. Accordingly, the Tribunal finds that the applicant was not involved in a motor vehicle collision in or around September 2010, either as a bus driver or otherwise and the Tribunal further finds that the applicant did not suffer any of the claimed harm he claims to have suffered as a result of this alleged collision, including alleged demands from the police for payment of further funds or bribes, any threat to harm the applicant if he did not pay these funds or bribes, any threat to charge the applicant with a criminal offence or any need for the applicant to go into hiding before he came to Australia to avoid capture by the police. Having found that the alleged motor vehicle collision never occurred as claimed, the Tribunal also finds that the police in Vietnam have no ongoing interest in the applicant in relation to this alleged incident.
150. The applicant has not made any other claims about having suffered any other harm in the past in Vietnam.
151. The applicant has claimed that if he returned to Vietnam now or in the reasonably foreseeable future, he fears harm for reasons of the police wanting to pursue him in relation to the alleged motor vehicle collision in or around September 2010, for reasons of departing Vietnam illegally, for reasons of being a failed asylum seeker in Australia and for reasons of his claimed political activities in Australia in opposition to the Vietnamese government.

152. The Tribunal has already found that the applicant was not involved in a motor vehicle collision in or around September 2010, either as a bus driver or otherwise and the Tribunal has further found that the police in Vietnam have no ongoing interest in the applicant in relation to this alleged incident. Based on these findings, the Tribunal is not satisfied that if the applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance he would suffer any harm for reasons of the police wanting to pursue him in relation to the alleged motor vehicle collision in or around September 2010.
153. The applicant arrived in Australia as an undocumented arrival. On this basis, the Tribunal accepts that the applicant departed Vietnam without using a passport and without going through an official border checkpoint or crossing. Therefore, the Tribunal accepts that the applicant departed Vietnam illegally.
154. The applicant was interviewed by Vietnamese authorities whilst in immigration detention in Australia. The Tribunal therefore accepts that the Vietnamese authorities are aware of the applicant’s illegal departure from Vietnam, his presence in Australia and are most likely to either know or suspect that he has made claims for protection in Australia. Accordingly, the Tribunal accepts that on return to Vietnam, the local authorities would be aware that the applicant had departed Vietnam illegally and that, without any Australian documentation, he would be a failed asylum seeker from Australia.
155. The Tribunal also accepts that the applicant was also subject to a data breach by the Department whilst in Australia. This data breach resulted in the personal details of the applicant being available online for a brief period of time and they could be accessed by anyone, including Vietnamese authorities, during this time. However, in the applicant’s circumstances, the Vietnamese authorities were already aware that he was in Australia, that he had departed Vietnam illegally and that he was seeking protection in Australia. In this context, as accepted by both the applicant and his representative at the hearing, even if the Vietnamese authorities had accessed this online information, they would not have obtained any further information about him apart from the information that they already had obtained from their interview whilst the applicant was in detention.
156. Given that the applicant would be returning to Vietnam where the authorities would be aware that he departed Vietnam illegally and that he was a failed asylum seeker in Australia, the Tribunal has considered relevant country information about the treatment of people who illegally departed Vietnam. The latest DFAT report states as follows:
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.[4]
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 2022, 11 January 2022, p 33, para 5.29.

157. The DFAT report states that the Vietnamese authorities do detain people are returning to Vietnam after being involved in people smuggling, but that those who employed the services of people smugglers would at worst only be subject to administrative fines:
In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.[5]
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 2022, 11 January 2022, p 33, para 5.30.

158. DFAT does suggest that returnees from Australia are sometimes questioned on arrival in Vietnam, but describes the focus as being on obtaining information about people smugglers and that they are not aware of returnees from Australia being held overnight in these circumstances:
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.[6]
[6] Ibid, p 33, para 5.31.

159. The same report also states that:
Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.[7]
[7] Ibd, p 33, paras 5.34 – 5.35.

160. When this information was discussed with the applicant at the hearing, he did not take issue or seek to challenge the accuracy of this information, but he did seek to distinguish his own circumstances by claiming the local authorities in Vietnam had an ongoing interest in him because of his involvement in the alleged motor vehicle in September 2010 and because the local police had questioned his wife after they interviewed him in immigration detention.
161. The Tribunal has already found that the was not involved in a motor vehicle collision in or around September 2010, either as a bus driver or otherwise and the Tribunal has further found that the police in Vietnam have no ongoing interest in the applicant in relation to this alleged incident. Based on these findings, the Tribunal considers that this alleged incident would have no bearing on the treatment of the applicant on return to Vietnam.
162. The Tribunal accepts that the local police in Vietnam did visit the applicant’s wife on a number of occasions and summoned her to the local police station on one occasion around the time that the Vietnamese authorities interviewed the applicant in immigration detention in Australia. However, as the applicant pointed out at the hearing, these interactions between his wife and the local police happened a long time ago and his wife had not been bothered by local police since that time. Accordingly, based on this evidence from the applicant, the Tribunal is not satisfied that the local police or local authorities in Vietnam have any ongoing interest in the applicant and his family members because of the way the applicant departed Vietnam or because of his status in Australia.
163. Based on the country information referred to above, the Tribunal does accept that if the applicant returned to Vietnam there is a likelihood that he may be detained and questioned by the local authorities for reasons of being a person who departed Vietnam illegally and for reasons of being a failed asylum seeker in Vietnam. However, the country information makes it clear that such detention would be for a short period of time for questioning, with the authorities focusing on finding out information about people smuggling operations. The country information suggests that people who are the perpetrators of people smuggling would be treated differently but the applicant is only a victim of people smuggling and there is no information before the Tribunal to suggest he either is a people smuggler or that he would be perceived to be a people smuggler by anyone including the Vietnamese authorities. Accordingly, the Tribunal finds that after a short period of questioning on return to Vietnam, the applicant would be released without being harmed.
164. Based on the country information referred to above, the Tribunal accepts that on return to Vietnam that the applicant would be subject to an administrative fine for his illegal departure from the country. At the hearing the applicant indicated that he was aware this would be the case. However, the applicant did not make any claim and there is no information before the Tribunal that the payment of such fine would cause him any economic hardship that would threaten his capacity to subsist.
165. On the information before it, although the Tribunal accepts that the applicant may be detained and questioned for some time after return to Vietnam and that he would be subject to an administrative fine, the Tribunal is not satisfied that if the applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reasons of departing Vietnam illegally or for being a failed asylum seeker in Australia.
166. The applicant has claimed that he has been politically active in Australia by attending events that express opposition to the Vietnamese government. Over time, he has claimed that he is a member of [Community Organisation 1] and the Viet Tan.
167. The Tribunal accepts that the Vietnamese government considers the Viet Tan to be terrorist organisation and treats its high-profile or active members accordingly[8]. However, the applicant made no claims that he is a member of this group until the hearing. As pointed out to the applicant at the second hearing, he had every opportunity to state that he was a member of this group in all of his previous interactions with the Department and the Tribunal, including in his submission made on 3 April 2023. The Tribunal has placed significant weight on the fact that the applicant did not make claims to be a member of the Viet Tan until the second Tribunal hearing.
[8] The Guardian, Vietnam declares US-based activist group is a terrorist organization | Vietnam | The Guardian, 8 October 2016, accessed 2 November 2011.
168. As discussed with the applicant at the hearing, the photographs he submitted showing his participation at [Community Organisation 1] events provide no indication that the Viet Tan was present at such events or that they were events held or organised by the Viet Tan. Although it is plausible that some member of the Viet Tan may have attended such events and collected funds for charity as claimed by the applicant, this is not evidence that the applicant is a member of such an organisation.
169. On the evidence before it, the Tribunal is not satisfied that the applicant has ever been a member or supporter of the Viet Tan or that he has ever been perceived by anyone to be a member or supporter of the Viet Tan. Accordingly, the Tribunal is not satisfied that if the applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for any alleged actual or perceived membership or support of the Viet Tan.
170. Based on the support letters from the president of the [Community Organisation 1] and from photographs supplied by the applicant, the Tribunal accepts that the applicant is a member of the [Community Organisation 1], that he has attended some of the functions and events held by this organisation over time and that he has provided practical assistance for these functions and events, including repairing machines, setting up and packing down.
171. The supplied photographs show that the flag of the former Republic of Vietnam (South Vietnam) has been displayed at these events and several photographs depict the applicant posing with other people and holding up signs that contain some mild criticism or reference to the Vietnamese government.
172. On the evidence before it, the Tribunal is prepared to accept that the applicant did participate in several functions and events held in Australia that may be viewed as being mildly critical of the Vietnamese government through the signs displayed at the events and through the display of the distinctive South Vietnam flag. However, as discussed with the applicant at the hearing, the applicant was a low-level participant in these events, he was not an organiser, he did not make any public speeches or publish any public comments that were critical of the Vietnamese government and at the hearing he described himself as working behind the scenes at these events.
173. Despite asserting that the Vietnamese secret police would be monitoring such events, the applicant provided no information to substantiate this claim or to suggest that the Vietnamese authorities would have any knowledge of the applicant’s participation in these [Community Organisation 1] events in Australia or would have any adverse interest in the applicant because of this participation.
174. On the evidence before it, the Tribunal is not satisfied that the Vietnamese authorities have any knowledge of the applicant’s participation in [Community Organisation 1] events in Australia or have any adverse interest in the applicant because of this participation. Accordingly, the Tribunal is not satisfied that if the applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer harm for reasons of his membership of the [Community Organisation 1] or his participation at any [Community Organisation 1] events in Australia, including any claims that he would allegedly be held as a political prisoner in Vietnam.
175. Despite the opportunity to do so, the applicant has not made any claims that he would continue to engage in any form of political activism on return to Vietnam and no such claims arise on the information before the Tribunal. Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant would engage in any political activism on return to Vietnam.
176. The applicant did not make any other claims that he fears harm on return to Vietnam for any other reason, and no claims arise on the information before the Tribunal.
177. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
178. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

180. The Tribunal has already found that the applicant was never involved in any alleged motor vehicle collision around September 2010 in Vietnam and that he would not suffer any harm on return to Vietnam that is related to this alleged incident. Although the Tribunal has found that the applicant may be detained for questioning and subject to an administrative fine on return to Vietnam, the Tribunal has found that the applicant would be released after such questioning and fine without suffering harm of any kind for having departed Vietnam illegally and for being a failed asylum seeker in Australia. The Tribunal has found that the applicant has never been, and has never been perceived by anyone to be, a member of the Viet Tan and that he faces no harm for this reason on return to Vietnam. The Tribunal has found that the applicant faces no harm on return to Vietnam because of his membership of the [Community Organisation 1] or his participation at events of this group in Australia. The Tribunal has also found that the applicant would not participate in any political activism on return to Vietnam and accordingly would not face any harm for this reason.
181. Apart from these claims, the applicant has not made any claims that he fears harm on return to Vietnam for any other reason and no other claims arise on the information before the Tribunal.
182. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Tribunal Case Number 2016079

184. As discussed above, this second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid.
185. Therefore, 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.
DECISION
186. The Tribunal:
a.affirms the decision not to grant the applicant protection visas in matter 1907315 (Safe Haven Enterprise visa application on 26 April 2017); and
b.sets aside the decision in matter 2016079 to refuse the applicant’s Safe Haven Enterprise visa application made on 5 June 2020 and substitutes it with a decision that the visa application was not valid.

Peter Katsambanis
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.
…

[2023] AATA 4598

6 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Appeal