Evidence
Evidence Before The Court
The applicant has not resiled from any of his former claims to date, but his claims as articulated to the Tribunal have been supplemented by a specific claim that he is at risk of harm as an anti-government social media blogger.Evidence The applicant has provided considerable documentary and oral evidence in support of his claims.Documentary evidence On 19 February 2023 the applicant submitted an evidence booklet in two parts: Political Participation and Propaganda on [Social media]. The first part contains 5 photographs that superficially appear to show the applicant engaged in anti-communist/anti-government political activities in Australia. The second part contains 13 pages of anti-government/anti-communist [Social media] posts on a [Social media] page that superficially appears to be that of the applicant. On 15 October 2023 the applicant submitted a photo evidence booklet comprising 28 pages of [Social media] posts and two supporting letters. The first of the letters is from a representative of the Viet Tan in [State], confirming that the applicant often volunteers to help the organisation, including at information sessions and peaceful protests. The second of the letters is dated 10 October 2023 and is from [an organisational role] of the [Organisation 1], attesting to the applicant’s Catholicism and community involvement. The applicant submitted a statement to the Tribunal on 17 October 2023 detailing his claims, and expressing his fears in the following terms:28. I have participated in human rights activities because it is from my heart and instinct to do so. It is my nature to speak up and reveal the truth about the current situation in Vietnam. I want to raise awareness about the unfair social system of Vietnam, where people are not treated equally, but people’s values are determined by money and power within the government.29. During my time in Australia, I have shared information, which is deemed illegal to the Vietnamese government, given the opportunity, and was safe to do so. I will continue to share the same contents in the future regardless of where I am since, I am no longer afraid and has become my nature to fight against disadvantages.30. If forced to return to Vietnam, I will return by plane. I would have to obtain a Vietnamese passport from the Vietnamese consulate office in Australia. I would have to declare my activities since my arrival, my purposes and how I entered Australia. The Vietnamese government would be notified of my profile at the point of issuing a Vietnamese passport.31. I would have to enter Vietnam via plane and pass custom check, I would be arrested at the airport because the Vietnamese authorities are aware of my activities in Australia.32. I would have no protection available because Vietnam has a one-party political system. There is no opposition political party, therefore their power is superior. No one would be able to protect me from being arrested by the Vietnamese Communist Government.33. I will be sentenced and imprisoned for a long period of time because of my activities in Australia and my affiliation with Viet Tan. Political prisoners are badly discriminated in Vietnam. I think I will be humiliated, harassed, and tortured in Vietnamese prison. My family would not be able to visit me.34. If I can survive upon my release from Vietnamese prison, I would be harshly discriminated by the society because of my past activities and affiliation with Viet Tan. I would not be able to find a job or make a living. People would avoid any dealing with me because they could subject themselves to future arrest. I would not be able to survive in Vietnam.
Decision
Reasons for decision
The Tribunal is satisfied that there is a real chance of serious harm to the applicant for the essential reason of his political opinion. The Tribunal is therefore satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Jessica HendersonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 issue in this case is whether the applicant’s claims amount to a well-founded fear of persecution for a refugee nexus reason and if so whether any exception or qualification applies. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and remitted with the direction that the applicant satisfies the criteria in s 36(2)(aa). It is uncontroversial that the applicant is a citizen of Vietnam, of Kinh ethnicity and Catholic faith who left Vietnam in his mid-[Decade] to travel to Australia. The applicant has been consistent and precise about these details, which are supported by documentary evidence and his demonstrated knowledge of Vietnam, Kinh heritage and Catholicism. The delegate accepted the applicant’s identity, citizenship, nationality and religious faith, as does the Tribunal.2018 Claims The applicant’s claim as articulated in his 2018 protection visa application (2018 Claims) were accurately summarised by the delegate in the following terms:·He was born in [Village 1], Nghi Loc District, Nghe An Province, Vietnam and resided in this location until he moved to [Village 2] in 2010 to work. After a few months in [Village 2], he moved to Da Dang to work in [work sector]. After a few months in Da Dang, he moved to Ho Chi Minh City and resided there until March 2013. In March 2013, he departed Vietnam for Australia.·He is of Kinh ethnicity and Catholic.·He has attended activities for the Vietnamese community in Australia including Viet Tan events and the [Organisation 1] where he has prayed for “priests and freedom fighters” imprisoned for the involvement in the democratic movement.·He would like to attend mass freely without the fear of arrest in Vietnam as Catholicism is not a religion that is recognised or respected in Vietnam.·He departed Vietnam illegally and fears he will be imprisoned and tortured in Vietnam for this reason.·He fears arrest and interrogation from Vietnamese authorities as a result of his political and religious beliefs.