1907479 (Refugee)

1907479 (Refugee) [2024] AATA 4253 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Hoang
CASE NUMBER:  1907479 & 2101121
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jessica Henderson
DATE:5 July 2024
PLACE OF DECISION:  Perth
DECISIONS: The Tribunal remits matter 1907497 for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
The Tribunal sets aside the decision in 2101121 and substitutes a decision that the protection visa application is not valid.

Statement made on 05 July 2024 at 5:12pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined, and statutory bar not applicable – first application not invalid, so second application invalid with no jurisdiction to review – religion and political opinion – Roman Catholic and anti-government opinion – church, community and organisation activities in Australia – late claims of social media activities – length of residence and passport expired – country information – monitoring of social media and organisation proscribed – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5(1), 5H(1)(a), 5J(1), 36(2)(a), 48A, 65, 91K, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2018 and sent to the applicant on 23 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Vietnam. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013.
In DBB16 v MIBP,[1] 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 them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
[1] (2018) 260 FCR 447
The applicant was granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa on 15 April 2014. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20,[2] s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
[2] [2021] FCAFC 63
The applicant applied for a Safe Haven Enterprise visa on 26 July 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 22 July 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 visa application was refused by the delegate by a decision dated 9 April 2018. The notification letter before the Tribunal is dated 23 March 2019. The delegate refused to grant this visa on the basis that the delegate did not accept the applicant would express anti-government views in Vietnam, did not accept that Catholics were targeted or persecuted based on their faith in Vietnam, and did not accept that the offence of fleeing abroad with a view to opposing the people’s administration was enforced. An application for review of that decision was made on 28 March 2019.
The second visa application was refused by a delegate on 20 January 2021. An application for review of that decision was made on 2 February 2021. 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 as then constituted by Senior Member Vernon for a direction hearing on 22 February 2023 and for a substantive hearing on 19 October 2023. The matter was then reconstituted, and the applicant appeared before the Tribunal as presently constituted on 13 May 2024.
Each Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. The representative attended each Tribunal hearing.
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 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.
In addition to these claims, the delegate also considered whether there was any relevant risk to the applicant arising out of a data breach affecting the applicant or arising out of his sur place activities in Australia.
Claims before the Tribunal
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.
The applicant also provided a significant amount of relevant country information, and a set of well formulated submissions relating that country information to the applicant’s claims.
On 6 May 2024 the applicant provided an updated evidence booklet containing photographs of the applicant with people in military uniform at what appears to be a remembrance service, and further 24 pages of [Social media] posts appearing to be made by the applicant since the October 2023 hearing.
Oral evidence
The applicant appeared before the Tribunal as then constituted by Senior Member Vernon for a directions hearing on 22 February 2023 and for a substantive hearing on 19 October 2023. The matter was then reconstituted, and the applicant appeared before the Tribunal as presently constituted on 13 May 2024.
The purpose of the hearing on 13 May 2024 was for the Tribunal as then constituted to satisfy itself on the forthrightness and credibility of the applicant. The Tribunal asked the applicant about gaps in his previous evidence and is satisfied that there were adequate answers to those gaps, as detailed below. Having formed the view that the applicant is a forthright and credible witness, the Tribunal is prepared to accept the evidence that he gave during the hearings on 22 February 2023 and 19 October 2023 to Senior Member Vernon.
The applicant’s collective oral evidence relevantly included the following details, which the Tribunal finds to be fact:
a.He attended a Catholic church each day with his parents as a child in Vietnam and continued this practice into adulthood. He would attend the evening service and there would be time to read the bible and pray. More than a hundred people attended the service.
b.He has attended the Vietnam Catholic church in [State] regularly since he arrived in Australia.
c.The applicant was introduced to Viet Tan in Australia in 2016, and he was immediately interested because he had always hated the Vietnamese government. Since then he has been involved in the Formosa demonstration and the annual 30 April demonstrations each year, in front of the Vietnamese consulate in [State].
d.The applicant considers the Vietnamese government to be an authoritarian, corrupt, oppressive organisation, utilising the police to control public opinion. He has always held this view, for as long as he can recall. He did not express this opinion publicly until he first arrived in Australia.
e.One of the reasons for the applicant’s firm anti-government views is that his paternal grandfather was killed by the government, and his family are citizens with no money or power. His family experience and raised the applicant to have an abiding anger and hatred of the government.
f.The applicant published strong anti-government views on [Social media] over a period of 3 years between 2016 and 2019. He had a lot of followers and accepted anyone as a social media friend. He did not initially worry that any of them might have been communists or government spies.
g.As a Catholic he publicly prayed for the priests who have been oppressed in Kon Tum, Vietnam. In 2019 he posted about this on [Social media] and the police in Vietnam attended his parents’ house in Vietnam and threatened them. He was holding up a poster in front of a statue of Mary, and the police told his parents that if he didn’t take the photo down and stop blogging about the Vietnamese government on [Social media] then they would arrest him when he returned to Vietnam.
h.The applicant was shocked to hear that the police in Vietnam knew about his [Social media] posts and was afraid for his parents after the police attended their home, because he knew that the photos and articles he had posted on [Social media] would make the government angry and he didn’t want them to punish his parents. He understood that someone he was friends with on [Social media] had reported his posts to the government in Vietnam and that his posts would now be watched.
i.In 2019 the applicant deleted his [Social media] account and started a new [Social media] account. Senior Member Vernon, with the applicant’s permission, accessed his current [Social media] account on his telephone during the hearing on 19 October 2023 and confirmed that it had been created in October 2019. The applicant does not now have access to his pre-2019 [Social media] posts.
j.The applicant used his own name to set up his new [Social media] account. His theory was that in changing [Social media] accounts he would avoid whatever communist had started following his old [Social media] account, and this time he would be more selective and have a smaller group of friends following him. Senior Member Vernon confirmed whilst accessing the applicant’s [Social media] account during the hearing on 19 October 2023 that the number of friends currently following the applicant on his new [Social media] page is 35. He also stopped expressing his own opinion directly and shared other people’s pictures and views instead.
k.The applicant said that he had travelled to Australia to look for work, because the government in Vietnam was bad and there was no work for him there. Once he arrived in Australia he learned that a protection visa might be available to him. As soon as the bar to applying for a protection visa was lifted (in 2016) he consulted a lawyer, who assisted him to put the application in. The lawyer was responsible for the delay in the application being filed.
l.The applicant didn’t make any specific claims arising from his [Social media] blogging in 2017 for two reasons; he had not yet had the alarming experience of the police visiting his parents’ home, and he understood that his anti-government views were caught in his claim about anti-government beliefs generally and he was never asked to provide specific information about how the government might be aware of those beliefs, either by the delegate or by his lawyer.
m.The Tribunal as presently constituted specifically asked the applicant what he thought would happen, step by step, if he returned to Vietnam. The applicant said that he would need to go to the Vietnamese Embassy and obtain a passport and the Embassy would ask him why he was in Australia and what he had been doing here. He said that his friend had been asked those questions recently when he was replacing a lost passport. It ended well for his friend though because he was in Australia on a student visa, which was an acceptable answer. The applicant said that on arrival in Vietnam he would be taken at the airport, questioned, and then held whilst his records were searched. Once it was discovered that he had been an anti-government blogger up to 2019 he would be arrested and detained indefinitely as an anti-government activist.
n.The Tribunal as presently constituted asked the applicant if he had been involved in Viet Tan since the last hearing and he said that he was not a member but he was still a supporter. He said that he was afraid for his family if he joined as a member, and membership wasn’t essential to involvement.
o.The Tribunal asked the applicant why he supported Viet Tan and he said that Viet Tan takes the public’s side and supports patriotic prisoners. The Tribunal asked the applicant if he knew anyone who had been imprisoned by Vietnamese government and he identified two people by name. The Tribunal asked how he knew these men and he said they were Australian citizens and he knew them from his time in Australia.
p.The Tribunal asked the applicant about the 2024 bundle of photographs and the event that the photographs were taken at. He said it was a demonstration on 30 April to celebrate the South Vietnam fall to North Vietnam. He said that he came to be at the event because he helped the organiser to stand up the plaques and banner. The Viet Tan organised the event and also [Organisations 2 and 3].
Refugee criteria
Political opinion

The first named applicant has claimed that if he returned to Vietnam now or in the reasonably foreseeable future he fears that he would face harm from the Vietnamese authorities because of his actual and imputed political opinion arising from his attendance at events and protests in Australia held to oppose the Vietnamese government and his active social media commentary whilst in Australia where he expresses his opposition to the Communist regime in Vietnam.
The strongest evidence of his claim is that he is an active [Social media] blogger. That evidence was not made available until 2023. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The Tribunal has heard detailed oral evidence from the applicant, and finds on the basis of that evidence that the applicant was already deeply unhappy with the Vietnamese government when he left Vietnam, that the applicant came to Australia looking for work, but that once he had arrived in Australia he realised that there were things that could be done about a government that he was unhappy with. In particular, the Tribunal finds that the applicant is a committed Catholic (and that Catholic people in Vietnam have reason to be frustrated with the government) and that the applicant’s grandfather was killed by the current regime leaving his impoverished family angry and afraid.
The Tribunal finds that the applicant has been following and actively involved with Viet Tan during his time in Australia, and that his involvement is not primarily or only for the purpose of strengthening his visa application.
The Tribunal is satisfied that the reason why the applicant did not specifically draw attention to his [Social media] blog before 2023 was that he did not appreciate that this evidence needed to be proactively raised before his present representative pressed this point. In any event, the applicant evidently did not appreciate the significance of his [Social media] posts until the events of 2019 when his parents were threatened.
Is there a real chance of harm to the applicant?
The Tribunal finds that there is a real chance that the applicant will be asked about what he has been doing in Australia both when he is applying for a passport and on his entry into Vietnam. The applicant has been in Australia for over 10 years - long enough for him to have been indoctrinated into Australian ideas and make him a person suspicious to the government, and there is a real chance that his name will still be on record in connection with his pre-2019 [Social media] posts.
The Tribunal accepts that on a reading of the applicant’s [Social media] posts a reasonable reader would conclude that many of these posts express a clear and strong political opinion opposed to the Communist government in Vietnam. There are also clear [Social media] connections with Viet Tan, which the Vietnamese government considers to be a terrorist organisation.
Country information
There is significant country information from multiple sources indicating that the authorities in Vietnam do closely monitor social media activity, that they impose restrictions or censorship controls on multinational social media companies and that they actively pursue social media users who make comments that are critical of the government.
Vietnam is a one-party state led by the Communist Party of Vietnam (CPV), and no other political movements or political parties are allowed to operate as a matter of law.[3] Opposition pro-democracy groups are typically based overseas because of the risk of arrest and imprisonment.[4] The Vietnam Penal Code 2015 (amended in 2017), Article 113, deems opposing the peoples authority terrorism carrying penalties of up to twenty years.[5]
[3] 'Freedom in the World 2024 - Vietnam', Freedom House, 21 March 2024, section B1, 20240412072344;'2023 Country Reports on Human Rights Practices - Vietnam', US Department of State, 22 April 2024, p. 34
[4] 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019', UK Home Office, 9 September 2019, p.9, 20190917095808; 'A new generation of Vietnamese migrants is protesting against their home government', The Conversation, 10 May 2024
[5] ‘Penalties for terrorism-related crimes under the Penal Code in Vietnam’, LawNet Vietnam, 12 June 2023
Vietnamese authorities declared the US- based pro-democracy group The Vietnam Reform Revolutionary Party (or Viet Tan/Việt Tân) ‘a terrorist organisation’ in 2016.[6] Individuals – including Australian citizens – with links to Viet Tan, have been sentenced to lengthy prison sentences for engaging in terrorist activities and ‘convicted of working to “fund terrorist operations”’.[7]
[6] 'Vietnam declares US-based activist group is a terrorist organization', Reuters, 08 October 2016,
[7] 'Vietnam Country Security Report', Overseas Security Advisory Council (OSAC), 21 February 2024, p. 2
According to credible sources critics of the government have been harassed, intimidated, restricted in their movements, and imprisoned after dubious trials.[8] The government is rumoured to tamper with and/or confiscate mail of suspected activists, as well as monitoring conversations and interrupting telephone and internet connections.[9] The Vietnamese government often hold political detainees for months without legal counsel[10], and often use prolonged sentences to tactically silence many of the prominent activists.[11] Between January 2019 and August 2023, 139 people have been sentenced to prison for criticising the government or joining pro-democracy groups, and as of October 2023, 166 political prisoners are being held in Vietnam.[12] ‘Bogus national security charges’ are routinely used to imprison activists.[13]
[8] 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 714,
[9] '2023 Country Reports on Human Rights Practices - Vietnam', US Department of State, 22 April 2024, p. 19
[10]'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 714
[11] ‘VIETNAM: ‘Failure to address torture of political prisoners should trigger a review of trade deals’, CIVICUS: World Alliance for Citizen Participation, 29 June 2022
[12] Submission to the Universal Periodic Review of Vietnam’, Human Rights Watch, 3 October 2023
[13] 174 Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 714
Cyber Security Laws have given the government greater surveillance and censorship powers over the internet and social media. Under the Cybersecurity Law, Decree 70, service providers are required to remove offending content within 24 hours[14], whilst Decree 53 requires foreign and domestic companies to aid in surveillance and monitoring, by storing personal data for all Vietnamese citizens for at least 24 months and provide the data to authorities when requested.[15] Social media platforms and technology companies remove anti-state content upon request from the government.[16] According to one report, Facebook removed or blocked 2,751 posts, Google removed 7,935 videos from YouTube and TikTok 329 videos in 2022.[17] The material purportedly included ‘false, anti-CPV, anti-state, and defaming brands, individuals, organizations’.[18] In April 2021, the government announced the expansion of a military unit of 10,000 people, Force 47, that is tasked with fighting distorting posts online, suggesting strongly that the Vietnamese government has elevated freedom of online expression to a military defence issue.[19] According to DFAT, ‘Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts’.[20]
[14] ‘Freedom on the Net 2023: Vietnam', Freedom House, 4 October 2023, p. 9, B3
[15] ‘Freedom on the Net 2023: Vietnam', Freedom House, 4 October 2023, p. 20, C6
[16] 'Freedom on the Net 2023: Vietnam', Freedom House, 4 October 2023, p. 4, A3, ‘Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 715
[17] 'Freedom on the Net 2023: Vietnam', Freedom House, 4 October 2023, p. 7, B2
[18] ‘Freedom on the Net 2023: Vietnam', Freedom House, 4 October 2023, p. 7, B2
[19] 'Freedom on the Net 2023: Vietnam', Freedom House, 4 October 2023, p. 11, B5
[20] 'DFAT Country Information Report - VIETNAM - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, sect. 3.61, p. 19
The Vietnamese government has been repeatedly accused of monitoring and targeting overseas activists.[21] These accusations include the use of a notorious hacking group, Ocean Lotus (also known as APT-C-OO or APT32), which has suspected links to the Vietnamese government, employed to target human rights defenders, political dissidents, NGOs and journalists both in Vietnam and abroad.[22] The government has been reported to conduct surveillance, harassment, and imprisonment of activists, and it appears numbers of arrests are increasing.[23]
[21] 'Vietnamese activists targeted by notorious hacking group', Amnesty International, 24 February 2021; 'Report on Human Rights in Vietnam 2022-2023', Vietnam Human Rights Network, 15 October
[22] 'Vietnamese activists targeted by notorious hacking group', Amnesty International, 24 February 2021; 'How Vietnam-based hacking operation OceanLotus targets journalists', Committee to Protect
[23] 'Vietnam: Activists’ Movements Blocked', Human Rights Watch (HRW), 17 February 2022;
The 2022 DFAT report makes it clear that even low-level online critics face some risk of arrest and imprisonment, and highlights that a low-level critic may face a higher risk of being punished as the lack the protection of the domestic and international attention that the arrest of high-profile critics attracts.
The Tribunal is satisfied that if the applicant did come to the adverse interest of the Vietnamese authorities, as the Tribunal has already found to be likely, there is a real chance that he would be subject to arrest, detention and imprisonment for expressing his political opinion which is strongly opposed to the government in Vietnam.
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 Henderson
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.
…

CX6A26A6E10990; 'Vietnam Country Security Report', Overseas Security Advisory Council (OSAC), 21 February 2024,p. 2

'DFAT Country Information Report - VIETNAM - 11 January 2022', Department of Foreign
Affairs and Trade, 11 January 2022, sect. 3.55-3.57, p. 18-19; 'Freedom in the World 2024 -
Vietnam', Freedom House, 21 March 2024, D4

2023, p. 32

Journalists (CPJ), New York, 1 February 2021; 'How Vietnam-based hacking operation
OceanLotus targets journalists', Committee to Protect Journalists (CPJ), New York, 1 February 2021

'Vietnam: Dozens of Rights Activists Detained, Tried', ‘Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 714-715, 20240112083455; ‘DESPITE INTERNATIONAL SCRUTINY, VIETNAM CONTINUES TO CONDUCT SURVEILLANCE, HARASS AND JAIL ACTIVISTS’, CIVICUS Monitor, 25 March 2023

[2024] AATA 4253

5 July 2024

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