1907613 (Refugee)

1907613 (Refugee) [2023] AATA 3535 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Kate Khanh Hoang
CASE NUMBER: 1907613 & 2116872

COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nicole Burns
DATE:17 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal:
a.    Affirms the decision not to grant the applicant a protection visa in matter 1907613 to refuse the applicant a protection visa (Safe Haven Enterprise visa) application made on 2 August 2017); and
b.    Sets aside the decision in matter 2116872 to refuse the applicant a protection visa (Safe Haven Enterprise visa) application made on 24 August 2020 and substitutes it with a decision that the visa application was not valid.
Statement made on 17 August 2023 at 10:05am

CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – two child policy – returned asylum seeker – religion – imputed political opinion – Catholic – home church meetings – heavy fines – illegal departure – pro-democracy activities in Australia – detention – physical assault – destroying church buildings – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 65, 91K, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
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 to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man from Vietnam.
Procedural history
According to Departmental records, [in] April 2013 the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. 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 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 (SHEV) is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was previously granted a Class UJ Temporary Safe Haven Subclass 449 Humanitarian Stay (Temporary) visa on 15 October 2014. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20), 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 Class XE Subclass 790 SHEV on 2 August 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 22 February 2018. 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 SHEV on 24 August 2020 (the second visa application), which was refused by the delegate on 16 November 2021. 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 he was not within the class of persons specified in the then Minister’s s 48B determination.
An application for review of the first visa application was made to the Tribunal on 29 March 2019 (AAT Case Number 1907613).
An application for review of the second visa application was made to the Tribunal on 17 November 2021 (AAT Case Number 2116872). 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 issue about the validity of the second visa application was discussed with the applicant along with other relevant issues in his case at a joint hearing on 12 July 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The representative participated in the Tribunal hearing via video link from NSW where she resides.
The issues in these cases are whether there is a real chance, if the applicant returns to Vietnam, now or in the reasonably foreseeable future, he would be persecuted for one or more of the following reasons: his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
CRITERIA FOR A PROTECTION VISA
To meet the criteria for a SHEV, applicants must engage Australia’s protection obligations as follows.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT country information report on Vietnam was published on 11 January 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant is [an age]-year-old man from Vinh City, Nghe An Province, Vietnam. He arrived in Australia [in] April 2013 claiming to be a Vietnamese national. In support of his second visa application he provided copies of his Vietnamese national identity card (NIC), marriage certificate, birth certificate, driver’s licence, and household register booklet to the Department, and on this basis the delegate accepted his claimed nationality and identity, as does the Tribunal on review.
CLAIMS AND EVIDENCE
Although for reasons above the Tribunal has found the second visa application was invalid, at hearing the representative confirmed that the applicant continues to rely on claims and submissions made in respect of both applications, which the Tribunal has summarised and considered below where relevant.
First SHEV application (August 2017)
In his first visa application the applicant claimed, in summary, to have left Vietnam because he was subject to heavy fines, threats and pressure from the authorities because he had three children in breach of Vietnam’s two child policy. According to information contained in the delegate’s Decision Record, at an interview with the delegate (on 16 January 2018) the applicant raised additional claims that as a Catholic who organised prayer sessions for families in his community he believes there is a black mark against his name. He also claimed to fear persecution on return to Vietnam because he departed the country illegally.
The delegate with respect of the first visa application accepted the applicant was Catholic, but not that he had organised any religious events or was known to the authorities as a result. They also accepted he may have experienced low-level discrimination in the past when he registered his third child and was issued a fine but did not accept it amounted to persecution. The delegate also noted country information that indicates Vietnam no longer imposes a two-child policy. Further, whilst they accepted the applicant would be returning to Vietnam as a failed asylum seeker who had departed illegally, they found he did not face a real chance of serious harm on that basis based on relevant country information about treatment of such returnees.
Second SHEV application (August 2020)
In his second visa application the applicant claimed, in summary that:
·He left Vietnam because he was harassed by the government for holding a political opinion against their interests.
·He was not allowed to access basic services and basic human rights.
·He was not allowed to practise his Catholic religion because he refused to be under the government’s religious control. He was not allowed to run Bible group study and home preaching activities and praying.
·All his religious activities are deemed political. They are forbidden and he is harassed by the government.
·The government harassment seriously affected his capacity to make a living.
·The government often makes it hard for the applicant to obtain government documents including birth certificate and personal identity documents.
·The government mistreated his father and sister because they refused to join the political party.
·On return to Vietnam he will be forced to give up his religion or conceal his true belief and join government controlled religious services. He would not be able to practise his religion.
·In Australia he has participated in pro-democracy organisations, joined various protests against the Vietnamese government and his photographs were posted on social media. Therefore the Vietnamese government will arrest him like many other activists.
·His details were given to the Vietnamese government during an interview in detention in Australia and he will be arrested on return as a politically associated failed asylum seeker from a western country.
In his application form the applicant refers to a statutory declaration dated 23 August 2020 provided to the Department. In it he clarified that he left Vietnam by plane legally, departing from Tan Son Nhat Airport, transited in [Country 1] and Indonesia, and used a Vietnamese passport which he gave to people smugglers in Indonesia. He did not indicate as such when he arrived in Australia because he was afraid of being sent back to Vietnam and just listened to what people on the boat told him to say.
Additionally the applicant states he has realised (after a friend read it back to him in Vietnamese) that the information provided in his first visa application was seriously misunderstood by the interpreter, which also makes him afraid that his information was mistranslated at his entry interview. He goes on to state the 23 August 2020 statutory declaration is correct to the truth of his claim (and read back to him in Vietnamese by an accredited interpreter), and whilst not exhaustive, covers what he feels relevant and important to his protection claims. These claims are summarised as follows:
·He is a Catholic since birth and part of [Parish 1] in Nghe An. His church was discriminated against by the government. Some churches were allowed to operate but their activities were restricted, their night sessions and public gatherings were not allowed.
·In around 2007 he volunteered to teach a youth group in his local church, teaching the youth about the Bible, organising group prayer, conducting preaching activities and other general outdoor activities.
·His religious sessions with the youth were not approved by the government, who considered his Bible teaching illegal and must be banned. Group Bible lessons at home, at night and prayer services were also banned.
·The government accused his group session as a disguise for political activities and he was not allowed to continue. He refused and continued, and in 2008 was summoned to attend a police station, forced to sign an undertaking to stop teaching the Bible, then released.
·He continued teaching the youth group in private, small group Bible lessons, and was being closely monitored.
·In 2007 he volunteered to build a new church called ‘[Church 1]’ close to his home, however, it was not allowed by the government and they destroyed it. The members of the parish protested, and the government physically removed them and attacked them. The applicant was involved in the protests but ran away and was not arrested or beaten by police.
·Given these restrictions and because it is not possible to practise their religion without a church, their only option was to join government controlled Catholic churches, however, he refused.
·Due to the applicant’s history of conducting and participating in unauthorised religious activities the government always found an excuse to treat his family unfairly. The local government harassed his family in many ways. For example:
oIn 2012 when people in his village were requested to renew or apply for a birth certificate he went to the local government to apply for one but was refused many times. Only after someone from the Parish asked for him was he issued a birth certificate.
oIn January 2013 when his third child was born the government refused to register [the] certificate and said he breached the law (as it was a rule to have only two children per couple). The local government requested a fine to be paid, but he refused because it was corrupt and against his conscience. He notes that other families in the village could register their third, fourth and even fifth child with no issues and he believes his family was discriminated against because of his religious activities. He had to go to the church to get assistance for [this child’s] birth certificate.
oWhen he lost his NIC the government refused to issue a replacement and he had to use a church contact and call for public pressure. The card that was issued had only one fingerprint of his right thumb (instead of the usual both thumbs) and a cross on his left thumb which caused the applicant a lot of trouble about his identity with other government departments.
oHis sister, who is a university qualified [occupation 1], refused to join the Vietnamese political party and had her work position degraded as a result, to a role similar to [limited role]. She is not allowed to resume her position as [occupation 1], as the government is afraid she would teach the word of God to her [clients].
oHis father was a volunteer [NGO 1] worker for many years who taught children who could not go to school and assists vulnerable families and raised funds to do so. As such the local government accused him of attempting to overthrow the government and subjected him to harassment.
·The government has tried many ways to force the applicant to give up his Catholic faith; the government views his Catholic practice as a threat because he holds a political opinion unfavourable to them; only Catholics that support the government are able to practise their religion; and as he refused to take part in the political system he is not allowed to practise his faith. His Bible group gathering was considered a potential political tool to gather forces.
·Nghe An province is where the practices are of particular interest because of ongoing issues between churches and police over a number of years. Religious activities are strictly controlled by the government.
·He had to run away from government harassment which was not in the form of physical violence but in the form of abuse of power as he was not allowed to receive basic services such as receiving proper identity documents, or fair work treatment. Such harassment affected his capacity to exist and make a livelihood.
·In Australia, after release from detention, the applicant learnt about Australia’s democracy and human rights through [Community Group 1] and other pro-democracy organisations and joined many protests. Photographs were taken of him holding the Republic of Vietnam yellow flag (the ex-government’s flag) by other activists and posted on [social media] sites. His wife saw his photographs at demonstrations and told him the neighbourhood and local police were also aware, the latter who came to their house to check on his whereabouts.
·As the government always suspected his religious activities had political incentives, they now have evidence of his political activities overseas and he will be arrested upon return to Vietnam.
·When the applicant was detained at a detention centre in [City 1] he was interviewed by Vietnamese officials, in August or September 2014. He believes they were police sent by the Vietnamese government. A few months later his wife told him police had visited their home and asked about his activities and whereabouts: she told them she did not know.
·The Vietnamese government is aware the applicant is an asylum seeker who has been in Australia for a period of time and participated in anti-Vietnamese government protests there. As such he will be punished on return as a failed asylum seeker.
·On return to Vietnam the applicant fears being arrested, detained, beaten and ill treated in prison because the government now has evidence of his overseas political activities.
·He also fears being forced to give up his religion because religious group meetings outside the government’s control are deemed political and he refuses to practise his religion in a government-controlled church because it teaches the government’s words not the words of God. He will be deprived of basic services upon return and will not be able to work anywhere because his profile is blacklisted.
·He also opposes the practice of teaching the first leader Ho Chi Minh’s words, life and political career in schools and having his photograph at some places and households.

Material provided in support of the applicant’s second visa application included:
·A copy of a letter from [Official A], President of [Community Group 1], dated 3 April 2019.
·A copy of a letter from [Official B], a volunteer and member of [Community Group 1] (undated). She states the applicant was an active volunteer within [Community Group 1], he participated in different events within the [Community Group 1 specified group], from fundraising to human rights protests and cleaning of the [Community Group 1] Centre.
- A copy of a letter from [Official C] [from Community Group 2] dated 31 March 2019. In it he states, among other things that he met the applicant in early 2016 when he became a member of his organisation; the applicant is also an active member of the [Community Group 3], assisting in celebrations and community programs; and he was living in fear in Vietnam and was constantly being oppressed in his daily life.
- A copy of a letter from [Father A], Catholic Diocese of Darwin, Northern Territory, Parish Priest of [Church 2] dated 29 March 2019.
- A copy of an untranslated letter from the applicant to [Person A].
- Copies of three photographs dated [in] November 2014, showing a group of people standing outside [Location 1], some who are holding the former flag of South Vietnam, flag of Australia and a sign about communists in Vietnam.
- A copy of an undated photograph showing people at a demonstration, some of whom were holding the former flag of South Vietnam and flag of Australia.
- A letter from the applicant to [Father B], Parish Priest of [Parish 1], Vinh Diocese, Vietnam dated 23 August 2020, with signed acknowledgement from the Father, dated 24 August 2020.
In a written submission provided to the Department dated 25 August 2021 the representative refers to the applicant’s background, experiences in Vietnam, conduct in Australia and how he will act on return to Vietnam. She argues that his profile – as a Catholic who was targeted by police as a social activist who criticised the government’s policy and conducted religious meetings with an independent unregistered group – means he would have to alter his manner of practice to conform with the government’s requirements or be detained and arrested. His activities would be criminalised under the new Law on Belief and Religion, introduced in 2020, which contravened international human rights standards and systematically violated religious freedom, particularly of independent religious groups but also of government recognised groups, she argues. Reference is made to country information (some of which was submitted) about restrictions adherents to independent religious groups face in Vietnam and risks faced by politically active Catholics, in Vietnam and elsewhere.
The Tribunal notes the Department’s file (in relation to the second visa application) contains a copy of a letter dated 1 October 2013 signed by [named priests] to the Department, former [church leaders from] Vietnam visiting Australia and requesting to visit parishioners in detention in [Australia] at the time. In an attached list of detainees the applicant’s name is included. The delegate in their decision record indicates the applicant had provided the letter to the Department on 7 November 2013.
The delegate accepted the applicant was Catholic, who attended [Parish 1]. However, they did not accept he held any position in the church, led Bible group studies or other religious activities, or was monitored or summonsed by police as claimed given credibility concerns with his evidence in this regard.
REVIEW APPLICATIONS
The applicant gave oral evidence to the Tribunal about his reasons for leaving Vietnam and fears on returning there now, summarised as follows.
The applicant said prior to leaving Vietnam in around March 2013 he was living in a house he owns with his wife and three children in his home village [named], Nghe An province (where his family remain). He worked as [an occupation 2]. His parents, now retired, lived in a village nearby. He has [specified family members], all of whom remain in his home village in Vietnam except for one brother whom he currently resides with in Australia, and another brother who resides in [Country 2].
The applicant said he was born and grew up a Catholic in Vietnam, attending [a named] church as part of [Parish 1]. In around mid-2007 he was asked by his parish priest (and others) to teach Bible studies to youth, which he started doing every second night at his home. He said he was asked due to his enthusiasm and knowledge of the Bible. He said around 30 young people would attend, using Bibles provided by the parish. Not long after he started, in around June 2007 police visited his home and told him he must seek their permission to undertake Bible studies at home and follow their guidance. However, the applicant did not want to and continued the studies, at different people’s homes, up until just before he left Vietnam in around March 2013. (The police also asked him to display a portrait of Ho Chi Minh at his house but he refused to do so.)
The applicant said the police visited his house again in mid-2008 and at the end of 2012 and warned him if he continued with the classes he would be arrested and detained. Due to this he decided to leave Vietnam, in March 2013.
The applicant said when he was in detention in [City 1] sometime around mid-2014 he was asked to attend an interview with a Vietnamese speaker who asked him to verify his name and address, and sign a document, which he did. Later he heard a news report on [radio] and discovered they were Vietnamese police, belonging to the [named section]. Not long after he signed the document police in Vietnam visited his wife’s house and asked about his whereabouts.
The applicant said in Australia he has participated in demonstrations against the Vietnamese government (some of which were associated with the Viet Tan) and posted anti-government material online, which has been noticed by people in his village. Some photographs and a video of him at the demonstrations have been taken and published online. The first demonstration he attended was in 2015 or 2016 organised by [Community Group 1] and Viet Tan against a Vietnamese delegation visiting Australia about the need to reform the Vietnamese government. He thinks it took place near [a named location] but cannot remember many details. When asked why he got involved, the applicant said because he wanted to demonstrate against the way people are treated in Vietnam and insist on more human rights for people there.
After that the applicant said he attended another two or three demonstrations (all between 2015 and 2016) but cannot remember where. They were organised by the same people and were for the same reason: that is about the Vietnamese government lying about the political system and situation in Vietnam. He held a yellow flag at the demonstrations, which the Vietnamese government considers treasonous. When asked what the yellow flag represents and why he carried it at the protests the applicant did not answer directly: instead he referred to Viet Tan whom the Vietnamese government considers are involved in anti-government activities. When asked about Viet Tan, the applicant said they are an organisation founded for the promotion of democracy and human rights in Vietnam. He could not remember when he became involved or how, noting it was a long time ago. However, he confirmed the photographs he submitted to the Department in support of his second visa application were of him attending these protests which is date stamped [in] November 2014. When asked who took the photographs and video (and why) the applicant said he cannot remember. Nonetheless, his friends (from his village and in Australia) told him the photographs were spread everywhere on social media.
When asked if he posted material via his own social media, the applicant confirmed that he did not due to concerns about the safety of his family members in Vietnam.
The applicant said he is fearful when he returns to Vietnam the authorities will question him about his involvement in these protests as soon as he arrives at the airport. When asked why he participated in the protests and held a yellow flag, given such risks, the applicant said because of his conscience: it was the right thing to do.
The applicant told the Tribunal he left Melbourne in 2016 and moved to Darwin. He was not politically active there as there was no Viet Tan chapter in Darwin. He was active in [deleted] and church-related activities.
The applicant said he did not mention Viet Tan in his second visa application given his experience when his information was compromised in detention and he did not want to make the same mistake disclosing such information to the Vietnamese police.
The Tribunal notes at hearing the representative requested additional time to provide a written submission to address some issues discussed at hearing, which the Tribunal agreed to, by 26 July 2023. However, at the time of the Tribunal’s decision no submission had been provided.
Findings about the applicant’s past experiences in Vietnam
Having regard to the totality of the evidence before it, including the applicant’s oral evidence, the Tribunal makes the following findings with respect to his protection claims, and whether his fears of persecution on return to Vietnam are well founded.
Fear of persecution from the authorities as a politically active Catholic
The Tribunal has first considered the applicant’s claims to fear serious harm on return to Vietnam at the hands of the authorities as a Catholic who undertook unauthorised religious activities and protest activities in Vietnam, and due to his political activism in Australia.
The Tribunal accepts the applicant is a Catholic and in Vietnam regularly practised his religion, including by attending his church in [Parish 1], Vinh city where he resided. It accepts he remains a Catholic and would be on return to Vietnam. Several letters have been provided from church members in Australia attesting as such, as well as an acknowledgement of the applicant’s letter to [Father B] in Vietnam.
The Tribunal does not, however, accept the applicant’s claims to have taught Bible studies in Vietnam and drawn the adverse attention of the authorities there as a result, or was involved in any other unauthorised religious or protest activities there, given several concerns with his evidence in this regard, for the following reasons.
First, as noted in the delegate’s Decision Record in relation to the first visa application[1] the applicant failed to mention in his first visa application that he was involved in any unauthorised religious activities, including teaching Bible studies in Vietnam and that he had experienced problems as a result. As well, at his entry interview[2] whilst stating he was Catholic, he said he was not a member of any particular Catholic group and did not indicate any claims of religious persecution. He first raised this claim at his interview with the delegate in respect of the first visa application (on 16 January 2018), but only briefly: that is he said he organised prayer sessions for families in his community and believes there is a black mark against his name. When asked why he failed to do so at the Tribunal hearing, the applicant said he was scared the information may get back to the authorities in Vietnam. The Tribunal is not persuaded by this explanation, particularly given the applicant mentioned other concerns he had with the Vietnamese authorities at the time: for example about having to pay a fine to have his third [child’s] birth registered.
[1] A copy of which was provided to the Tribunal on review.
[2] On 25 April 2013.
The Tribunal notes in his statutory declaration provided to the Department in support of his second visa application the applicant states he was not made aware at his entry interview that the information would be used for assessing his protection claims; he did not have the opportunity to raise all his claims and only answered the interviewer’s questions; and he was afraid of the authorities because they had harassed him in Vietnam. Additionally, he had interpreting concerns with respect to his first visa application (unspecified) which makes him afraid his information was mistranslated at the entry interview. However, his failure to mention his alleged involvement in religious activities in Vietnam at all raises doubts about his claims in this respect, even if there were some interpreting issues at the stage of his first visa application, and possibly at entry interview.
In the representative’s written submission to the Department in support of the second visa application she addressed the applicant’s claim at entry interview that he was a Catholic but not a member of any particular Catholic group, arguing that his denial of such was consistent with his evidence that the Bible studies was a home study of Jesus’ teachings, not a formally recognised Catholic group. Therefore no adverse inference should be drawn, she submits. Whilst that may have been the case, this does not explain why the applicant failed to mention being a politically active Catholic in Vietnam who had come to the adverse attention of the authorities there as a result at all at his entry interview or in his first visa application.
The Tribunal also notes, as did the second delegate in their Decision Record,[3] that in the applicant’s letter he wrote to [Father B] dated 23 August 2020 (who had signed an acknowledgement on 24 August 2020) there is no mention of the applicant’s purported involvement with the church’s Bible group.
[3] A copy of which was provided to the Tribunal on review.
Second, there are inconsistencies with the applicant’s evidence before the Department and Tribunal about these matters in some respects. For example, at hearing the applicant said the police visited him at his home in Vietnam three times telling him not to continue Bible studies: in mid-2007, mid 2008 and the end of 2012. However, in his statutory declaration provided to the Department in support of his second visa application he said in 2008 he was summonsed to attend the police station, forced to sign an undertaking to stop teaching the Bible, then released. At hearing when this inconsistency was pointed out the applicant said he did receive a summons to attend the police station but his evidence was vague, and he did not say that he had to sign an undertaking. He then stated that the police came to his house and he had to attend the police station: however, only after he was reminded of this information contained in his August 2020 statutory declaration.
A further inconsistency relates to the period of time the applicant allegedly taught Bible studies. That is at hearing he claims he did so from 2007 until just before he left Vietnam in March 2013, including after he had been warned by the police not to do so. However, at his interview with the delegate in relation to his second visa application on 18 August 2021 (as set out in that Decision Record, a copy of which the applicant provided to the Tribunal on review) he states he taught Bible studies from 2007 to 2008, stopping after he attended the police station in February 2008 and signed a statement saying he would do so. Later in 2008 he stated that he established a new children’s (10 to 15-year-old) Bible studies group, up until the end of 2012 when the police found out.
Thirdly, the applicant’s oral evidence at the Tribunal hearing about his purported involvement in other church-related activities and/or protest activities in Vietnam was not forthcoming and when asked his responses were vague and limited. For example, he did not mention being involved in any protests spontaneously, and when asked specifically he was hesitant and general, saying he was only involved in non-violent protests with fellow religious persons. When asked about his first protest activity the applicant said in 2008 he went with a group of church members to the local government to request that they stop intervening in their activities. However, he was unable to say why, when or what activities he was referring to.
Fourthly, the applicant told the Tribunal he was not involved in any other demonstrations because of fear. Yet this is inconsistent with his claims in respect of his second visa application to have protested with others the government’s attempts to destroy a new church ([Church 1]) being built close to his home. The Tribunal notes at hearing the applicant only mentioned this incident when prompted, and his oral evidence was vague.
Additionally, there are internal inconsistencies with the applicant’s account of his religious activities and attracting adverse attention of the authorities in Vietnam as a result. For example on the one hand he said at hearing he led Bible studies every two days at his home initially, then at other church members’ homes, even after police warnings, up until he left Vietnam. Yet on the other hand he was never arrested or detained, despite his claims the authorities knew about it and he continued to lead Bible studies despite being warned he may be arrested if he continued. He was also able to leave Vietnam on a passport issued in his own name with no apparent problems which indicates he was not of adverse interest to the authorities due to his unauthorised religious and/or protest activities at that time. At hearing the applicant said he thinks that is because the authorities were not aware of his plans.
Given these concerns, whilst the Tribunal accepts the applicant is a Catholic who regularly attended church in Vietnam, it does not accept he led Bible studies or was involved in any other unauthorised religious activities in the past, or that he participated in any protest activities including in relation to the building of a new church/church house in his hometown in 2007. The Tribunal does not accept police visited his home on three occasions and warned him not to continue Bible studies, or that he was summonsed to attend the police station, or that he signed an undertaking not to continue Bible studies. It does not accept he was of any adverse interest to the police or local government or anyone else due to his involvement in any religious or protest activities in the past in Vietnam and finds he does not face a real chance of serious harm from the authorities or anyone else due to his involvement in such activities in the past on return to Vietnam in the foreseeable future.
In reaching this conclusion the Tribunal has had regard to the letter from former [leaders] of the Diocese of Vinh the applicant provided to the Department and a list of 26 parishioners in detention whom they wished to visit, which included the applicant. In their letter they highlight the crackdown on their diocese by the authorities in Vietnam, including parishioners being threatened with arrest and imprisonment. Whilst the Tribunal accepts there was a clampdown on Catholics in their diocese in central Vietnam in this period, it notes the former [leaders] do not identify specific individuals in this regard. The letter does not overcome the significant credibility concerns the Tribunal has with the applicant’s claims he has been a politically active Catholic in Vietnam and accordingly it gives it little weight in respect of the applicant’s specific protection claims.
Given these findings the Tribunal does not accept the applicant’s claims (set out in his August 2020 statutory declaration and reiterated at hearing) that due to his history of conducting and participating in unauthorised religious activities the local government always found an excuse to treat him and his family unfairly, and harassed his family in many ways, including when he tried to obtain a new NIC, reissue his birth certificate, and register the birth of his third child. The Tribunal accepts the applicant may have faced some administrative burdens in obtaining these documents, but not because he was a politically active Catholic as claimed. There could have been other reasons for the difficulties he faced, including administrative delays. At hearing the applicant said he was not told why his NIC was refused initially, however, when he went to the relevant office he was told the person responsible was not there and was asked to come back later.

The applicant claims when his new NIC was finally issued it had only one fingerprint of the right thumb (instead of both) and a cross on the left thumb: he thinks to mark him as a politically active Catholic. (A copy was provided to the Department in support of his second visa application.) The applicant states (in his August 2020 statutory declaration) that the ‘unusual’ card caused a lot of trouble about his personal identity with other government departments yet did not provide further details, nor at hearing.
In the representative’s submission to the Department she states that as a result of the flaw in his NIC, the applicant was consistently rejected by potential employers. However, at hearing the applicant told the Tribunal he worked in Vietnam as [an occupation 2] and did not indicate he was prevented from obtaining work due to flaws in his NIC or for any other reason. While it remains unclear why the applicant’s NIC was issued in this way, the Tribunal does not accept the flaw in his NIC caused him significant hardship in finding employment and his ability to subsist as submitted, nor would it on return to Vietnam. For reasons above the Tribunal does not accept the applicant was a politically active Catholic.
With respect to difficulties obtaining a new birth certificate, in his statutory declaration provided in support of the second visa application the applicant claimed in 2012 people in his village were requested to renew or apply for their birth certificate; that it took him many visits to the local authorities to get one who refused; and he went back to his parish and had the original one issued by the church in 2012. The Tribunal notes the applicant provided a translated copy of his birth certificate to the Department in support of his first visa application, which indicates it was re-registered [in] February 2002. At hearing the applicant did not mention this issue in particular, speaking only about issues with his NIC and his [third child’s] birth certificate.
On the applicant’s own evidence at hearing he was eventually issued a new NIC, and had his third [child’s] birth registered, after seeking help from more senior church members in his local area and in the case of [this child], paying a fine. As well, he obtained a passport in his own name and did not indicate any problems doing so, or when departing the country, which, as noted by the delegate, suggests the authorities in Vietnam are willing to issue him with proper documentation.
Given these considerations the Tribunal does not accept the applicant was not allowed to receive basic services such as proper identity documents or fair work treatment in the past in Vietnam, or that his profile is blacklisted as claimed in his August 2020 statutory declaration provided in support of his second visa application.
As noted, in his August 2020 statutory declaration the applicant indicated that he opposes the practice of households having to have a photograph of Ho Chi Minh and at hearing said he refused when asked one time by the police to do so. (He stated that he also opposes the practice of teaching the first leader Ho Chi Minh’s words, life and political career in schools.) However, he did not indicate any repercussions as a result and the Tribunal finds remote the chance the applicant would face serious harm from the authorities on return to Vietnam because he failed to display a photograph of Ho Chi Minh at his home in the past or fails to do so in the reasonably foreseeable future.
As noted earlier, in his second visa application the applicant stated, among other things that he left Vietnam because he was harassed by the government for holding a political opinion against their interests. He does not elaborate and it is unclear what political opinion he is referring to. At hearing he spoke about his religious beliefs and activities in Vietnam, which could be considered political, and that he refused to follow the religious activities and approaches proscribed by the government. However, for reasons above the Tribunal does not accept his claims in this regard. He also refused to display a photograph of Ho Chi Minh in his home and has indicated he does not want to promote him, which the Tribunal accepts but has found this would not result in him facing serious harm from the authorities on return to Vietnam. He has not indicated any other reasons he may have been harassed by the government in the past for holding a political opinion against their interests and the Tribunal is not satisfied on the limited evidence in this respect that he faces a well-founded fear of persecution on return to Vietnam on this basis.
For these reasons the Tribunal finds the applicant does not face a real chance of serious harm from the authorities in Vietnam or anyone else on imputed or real political opinion grounds due to his past involvement in unauthorised religious activities there, or anti-government political protest activities there.
Findings about the applicant’s activities in Australia
In determining whether the applicant will be politically active on return to Vietnam, the Tribunal has taken into account these findings, and considered his claims to have been politically active in Australia, as follows.
At hearing the applicant claims in Australia he attended protests against the Vietnamese government, including holding the South Vietnamese flag, in association with Viet Tan, which is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam,[4] in around 2015 and 2016 before he moved to Darwin. He said he returned to Melbourne in 2020 and did not indicate involvement in any further protest activities.
[4] DFAT Country Information Report: Vietnam, 13 December 2019 at 3.47.
As noted, in his August 2020 statutory declaration provided to the Department the applicant states that in Australia, after release from detention, he learnt about Australia’s democracy and human rights through [Community Group 1] and other pro-democracy organisations and joined many protests. He states further that photographs were taken of him holding the Republic of Vietnam yellow flag (the ex-government’s flag) by other activists and posted on his [social media] page and other social media sites. His wife saw his photographs at demonstrations and told him the neighbourhood and local police were also aware, the latter who came to her house to check on his whereabouts.
The applicant provided copies of several photographs purportedly of himself and others at demonstrations in Australia with some persons holding yellow flags to the Department. At hearing the applicant could not remember the date of the protest where the photographs were taken. The Tribunal notes the one showing a demonstration outside [Location 1] are date stamped [in] November 2014.
According to the representative in her submission to the Department, the applicant obtained these photographs from [Official B] [Position 1] of [Community Group 1] who had found them on various [social media] posts; that [Official B] had provided the applicant with a copy but not a screenshot of the [social media] posts; and that the applicant had tried to contact her after his interview with the second delegate but was unsuccessful. The representative goes on to state that the applicant is relying on a letter of support provided by [Official B] as evidence of his participation in protests in Australia.
As noted the applicant provided to the Department letters of support from [Official B] and other members of the [Community Group 1] who attest to his involvement in protest and other activities here, as set out earlier. On this basis the Tribunal accepts the applicant has attended several protests in Australia in around 2014 to 2016 and that he may have held a South Vietnamese flag at the protests. It accepts there were photographs taken (copies of which have been provided to the Department) and that these images may have been shared online. Although the Tribunal notes (as did the delegate) it is difficult to identify the applicant in any of the photographs provided, with his face turned away from the camera in one, being far away in another, and blurry in another.
The Tribunal has concerns, however, about the applicant’s motivations for attending protests against the Vietnamese government in Australia, particularly given it has not accepted he was politically active in Vietnam for the reasons set out earlier.
Additionally his oral evidence about the purpose of the demonstrations, and why he became involved (for example) was general and unconvincing. He made broad statements about demonstrating against the way the Vietnamese government treat people in Vietnam, the need to insist on more human rights there, and the fact the Vietnamese government lies about the political system and situation there. However, when asked in what ways, the applicant replied that they lie about everything but failed to provide any specific examples or context. The Tribunal notes further the applicant was unable to adequately explain why he held the yellow flag at the protests and what it represents, instead answering that if the Vietnamese government saw him doing so they would consider he was a member of Viet Tan and involved in anti-government activities. The Tribunal also notes this was the first time the applicant had mentioned Viet Tan and his evidence about who they are and his involvement with them was vague and general.
Given these concerns the Tribunal has disregarded the applicant’s conduct in Australia (regarding attending protests) as it is not satisfied he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee (as per s 5J(6) of the Act).
In reaching this conclusion the Tribunal has had regard to the letters of support provided from members of [Community Group 1], including from [Official A] [from Community Group 1] who confirms the applicant took part in some of their activities, and speaks in general terms about poor treatment of people like the applicant in Vietnam. The Tribunal accepts the applicant has participated in protest activities in Australia and that members of the community here may consider his motivations for doing so are genuine. However, given the concerns the Tribunal has with the applicant’s evidence, including in relation to his alleged involvement in unauthorised religious activities and protest activities in Vietnam which the Tribunal does not accept, it gives these letters little weight in this respect.
The applicant claimed in his August 2020 statutory declaration that his wife in Vietnam saw photographs of him attending anti-Vietnamese government protests in Australia and reported that so too have members of their neighbourhood and local police who visited her shortly thereafter to check on his whereabouts. At hearing the applicant said police visited his wife after he had been interviewed by Vietnamese officials (who he suspects were police) in mid-2014 but did not mention the police visiting his wife in relation to social media photographs of the applicant attending protests in Australia sometime after that. Based on this inconsistency the Tribunal does not accept the applicant’s wife was visited by police after he had participated in anti-government protests in Australia as claimed.
The Tribunal notes country information indicates that the Vietnamese state monitors media and internet activities.[5] Nonetheless, the Tribunal finds remote the chance that the applicant would face serious harm from the authorities even if they were to discover that he was involved in three or four anti-Vietnamese government protests in Australia, the last one in 2015 (eight years ago), and even if holding a South Vietnam flag as claimed. The Tribunal is not satisfied that the applicant has such a profile that he would be at risk of serious harm from the authorities because of his actual or imputed political opinion (arising out of attending three to four protests, the last eight years ago in Australia) if he returns to Vietnam in the foreseeable future.
[5] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.61.
The Tribunal accepts the applicant has been involved in other activities in Australia, including being a member of [Community Group 3] assisting celebrations and community programs, and of [Community Group 2] when he lived in the Northern Territory, as indicated in the letter from [Official C], [from Community Group 2] provided. However, there is no mention of political activities in the letter from [Official C], or the letter from [Father A], Catholic Diocese of Darwin, Northern Territory provided to the Department, and for the reasons above the Tribunal does not accept the applicant was politically active in Vietnam or would be on return. For these reasons it is not satisfied he has a profile that would bring him to the adverse attention of the authorities in Vietnam on return, even accepting his involvement in church, [and] other activities in support of the [Community Group 1].
For reasons set out earlier the Tribunal does not accept the applicant’s claims to have been involved in protest activities in the past in Vietnam, or undertaking unauthorised religious activities, and attracted the adverse attention of the authorities there as a result. The Tribunal accepts the applicant attended three to four anti-Vietnamese government protests in Australia in 2014–2016 but is not satisfied he did so otherwise than to strengthen his protection claims and therefore has disregarded that conduct. It accepts there may have been photographs taken of him at the protests shared on social media but is not satisfied such activity would result in him facing serious harm by the authorities on return as a result.
For these reasons the Tribunal is not satisfied that the applicant would be politically active on return to Vietnam and finds he does not face a real chance of serious harm from the authorities in Vietnam on actual or imputed political opinion grounds on return to Vietnam in the foreseeable future.
Catholic religion
The Tribunal accepts the applicant is a Catholic who would continue to practise his religion on return to Vietnam, as he did in the past. Country information indicates that there are parts of Vietnam with a high concentration of Catholics, including Nghe An province where he originates from. As discussed at hearing, DFAT indicates in its most recent country information report on Vietnam that Catholics who practise in registered churches and otherwise do not have an adverse political profile, are able to do so relatively freely. They state that:
… Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.[6]
[6] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.31.
At hearing the applicant said his parents, siblings, wife and children in Vietnam go to church regularly and do not experience any problems. However he said that is because they go to registered churches and do not show any objections: therefore the authorities leave them alone. He agreed that in Vietnam Catholics are able to practise if they do not become involved in politically sensitive issues.
The Tribunal acknowledges country information (including that referred to by the representative in their submission to the Department) that indicates a level of restriction on religious freedom in Vietnam and concerns about continued restrictions on the right to freedom of religion and belief, including after the introduction of the Law on Belief and Religion in 2020. However, as discussed at hearing, religious observance and practice usually only become an issue for Catholics who are perceived to challenge the authority or interests of the Communist Party of Vietnam (CPV) and its policies, particularly through political activism.[7] As well, whilst the treatment of religious groups varies widely across Vietnam, it is further dependent upon their relationship with the government and those groups the government continues to monitor the activities of are mainly unregistered church groups in ethnic minority communities due to their real or perceived political activism.[8]
[7] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.31.
[8] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.8.
For the reasons above the Tribunal does not accept the applicant’s claims to have been involved in anti-Vietnamese government protests or unauthorised religious activities in the past in Vietnam or to have been warned by the police as a result, or summonsed to attend the police station and made to sign an undertaking. It accepts there may be photographs online of his involvement in protests in Australia but the last one was eight years ago, and it does not accept his claims that police visited his wife to enquire about him in Vietnam as a result. There is no indication that Catholic followers are persecuted for practising their faith per se in Vietnam.
Based on this country information and given the Tribunal’s findings that the applicant did not participate in unauthorised church activities, or experience problems in the past in Vietnam as a Catholic and was not politically active in Vietnam, nor would be on return, the Tribunal finds remote the chance he would face persecution from the authorities or community due to being a Catholic on return to Vietnam in the foreseeable future. His fears of persecution on this basis are not well founded.
Given these considerations the Tribunal is satisfied the applicant will be able to practise his Catholic religion as he has in the past by attending church and finds the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he returns to Vietnam for reasons of his Catholic religion or any imputed political opinion based on his Catholic religion from the authorities, or anyone else.
Mistreatment of family members
For the reasons above the Tribunal does not accept the applicant was involved in unauthorised religious or protest activities in Vietnam. It follows that the Tribunal also does not accept the applicant’s claims that some of his family members were treated unfairly by the authorities in Vietnam because of his involvement in unauthorised religious activities.
The Tribunal has considered the applicant’s specific claims that his sister and father have been discriminated and harassed by the Vietnamese authorities, as follows.
At his interview with the delegate in respect of his first visa application the applicant purportedly stated (as set out in that decision record) that he fears persecution on return to Vietnam because he and his sister refused to join the Communist Party. In his August 2020 statutory declaration provided in support of the second visa application the applicant states that although his sister in Vietnam graduated as a [occupation 1], she was unable to obtain [an occupation 1] job as [a specified occupation 1] because she refused to join the CPV. Instead she works [in a limited role]. At hearing the applicant reiterated his claims in this respect, noting that it is an example of bias against his family members because of his history of involvement in unauthorised religious activities. However, as noted, the Tribunal does not accept his claims in this regard. He did not mention anything further about him or his sister refusing to join the Communist Party and the Tribunal is not satisfied on the limited evidence before it that he faces a real chance of serious harm on return to Vietnam from the authorities on this basis.

In his August 2020 statutory declaration the applicant also claimed his father, who was [an NGO 1] volunteer and taught young children who could not afford to go to school in Vietnam, was subject to harassment from the local government. He states further that the government said his father was attempting to overthrow them and his activities were to ‘gather forces’. However, no further details or context is provided, and at hearing the applicant’s oral evidence on this matter was vague. For example he told the Tribunal his father, who was involved in charity work, was regularly visited by police. However, he was unable to say how often this occurred, or when his father stopped undertaking charity work which is when he claimed the police attention stopped, except to say it was when the applicant was in Vietnam. The applicant did not indicate any further problems his father has experienced from the authorities because of him or his past involvement in charity work.
For these reasons whilst the Tribunal is willing to accept the applicant’s father was involved in some charity work in the past in Vietnam, it does not accept he was questioned by the police as a result of any adverse interest to them. It finds the applicant does not face a real chance of serious harm from the authorities on the basis of his father’s past involvement supporting charities in Vietnam on return there in the foreseeable future.
Failed asylum seeker and the ‘data’ breach
The Tribunal has also considered if the applicant faces a well-founded fear of persecution on return to Vietnam from the authorities as a failed asylum seeker, including from a western country.
As noted, in his second visa application the applicant clarified that he did not depart Vietnam illegally as he had erroneously stated in his first visa application. At hearing the applicant said he flew from Ho Chi Minh to [Country 1], then to Indonesia, on a genuine Vietnamese passport issued in his own name. He thinks he did not have any issues when departing Ho Chi Minh City to [Country 1], because the officials thought he was just a tourist and did not know the purpose of his trip.
The Tribunal notes the applicant was also subject to the ‘data breach’, which occurred when information regarding persons in Immigration detention in Australia as of 31 January 2014 was accessible online for a short period of time before the Department removed the information from its website. This included personal details about the applicant. The Tribunal accepts the data breach may have resulted in the Vietnamese authorities and others becoming aware that the applicant was in Immigration detention in January 2014 and some may assume he had sought protection in Australia.
The Tribunal notes in the applicant’s case the breach occurred prior to the lodgement of his protection visa application, therefore any protection-related claims would not have been made available to the Vietnamese authorities. Nonetheless, even if they assumed he had made protection claims, for reasons that follow including country information about the treatment of returnees and failed asylum seekers to Vietnam, the Tribunal finds the applicant does not face a real chance of serious harm on return as a failed asylum seeker.
At hearing when asked if he held specific concerns due to the data breach and/or returning to Vietnam as a failed asylum seeker, the applicant said he does for several reasons including because in the past he was involved in religious activities and due to his political activities in Australia, where he has resided for a long time. For the reasons above the Tribunal does not accept his claims to have been involved in religious activities in Vietnam and does not accept he faces a well-founded fear of persecution on return to Vietnam based on his involvement in political activities in Australia.
The applicant spoke at hearing about his concerns that his details and protection claims are known to the Vietnamese authorities because he was interviewed by Vietnamese police in detention sometime around mid-2014, and a few months later his wife told him the police visited their house and asked about his activities and whereabouts. He had mentioned this concern earlier, including in his August 2020 statutory declaration. In her submission provided to the Department in support of the applicant’s second visa application the representative argues that this means the Vietnamese government are aware of his protection claims, and this would result in his arrest upon return to Vietnam due to the offence in Article 91 of the Penal Code of ‘fleeing abroad to stay abroad and oppose the peoples’ government’.
At hearing the applicant claimed that a Vietnamese person spoke to him threateningly whilst detained in [City 1] sometime in mid-2014 and asked him to sign a document verifying his details. Subsequently he suspects the person was from the Vietnamese police because he heard about this on [radio] and his wife told him the police had visited their home and asked about the applicant’s whereabouts not long after.

100. The Tribunal accepts the applicant was interviewed by Vietnamese officials whilst in detention in Australia. According to the delegate in their Decision Record this took place [in] August 2013 (not 2014) and was in the form of an identity interview with a Vietnamese delegate to facilitate the issue of a Vietnamese travel document to the applicant (and other ‘screened out’ detainees) given when he arrived in Australia he was undocumented. The delegate notes at the interview the applicant was asked questions to confirm his identity and nationality by an official from Vietnam’s Immigration with an Australian Immigration officer also present and that he was issued a Vietnamese travel document on that day. The delegate notes further that subsequently (on 7 September 2013) the applicant signed a statutory declaration to revoke the documents he previously signed and requested to have a legal representative act on his behalf.
101. The delegate states further that as the applicant had provided additional claims on 5 September 2013 and lodged the initial SHEV on 2 August 2017, after the meeting with the Vietnamese delegate, it was not plausible the Vietnamese authorities were made aware of his claims at the August 2013 meeting. They state further that the questions at the time were limited to establishing his identity and questions such as reasons for travelling to Australia were not allowed.
102. The Tribunal accepts when the applicant was detained in Australia he was subject to the data breach and was visited by Vietnamese officials, and that shortly thereafter officials in Vietnam visited his wife. Based on the information contained in the delegate’s decision record, it considers this was likely for identity purposes, but even if as a result of the visit and data breach the authorities had come to know the applicant had applied for asylum in Australia, does not result in the applicant facing a real chance of serious harm from the authorities on return, noting the following advice from DFAT about the treatment of returnees.
103. As discussed at hearing, DFAT states the following about returnees (including failed asylum seekers) to Vietnam:
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.
…
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.
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.[9]
[9] DFAT Country Information Report: Vietnam, 11 January 2022 at 5.29 - 5.35.

104. Such country information indicates that it is unlikely the applicant would be of interest to the authorities on return to Vietnam, even if they assumed he had sought protection in Australia. In the applicant’s case, the Tribunal does not accept his claims to have been politically active in Vietnam and has disregarded his involvement in anti-Vietnamese government activities in Australia. There may be some photographs on [social media] of his attendance at protests but for the reasons above the Tribunal is not satisfied this would lead to him facing a real chance of serious harm from the authorities or anyone else on return to Vietnam in the reasonably foreseeable future.
105. Given these considerations including DFAT’s assessment that most returnees (including failed asylum seekers) are unlikely to face adverse attention from the authorities, and given the Tribunal does not accept the applicant was a politically active Catholic in the past in Vietnam or would be on return, the Tribunal finds remote the chance the applicant will face serious harm on return to Vietnam as a failed asylum seeker from a western country including in the form of being arrested and/or detention and/or imprisonment. His fear of persecution on this basis is not well-founded.
106. For these reasons the Tribunal finds the applicant does not face a well-founded fear of persecution from the authorities on return to Vietnam as a failed asylum seeker, including from a western country.
Breach of Vietnam’s two child policy
107. As noted in his first visa application the applicant claims to have left Vietnam because he was subject to heavy fines, threats and pressure from the authorities because he had three children in breach of Vietnam’s two child policy.
108. In his August 2020 statutory declaration provided in support of his second visa application the applicant states when his third child was born in January 2013 the government refused to register [this] birth, claiming he had breached the law; he was requested to pay a fine, even though other families in the village who had three or more children had not; he believes he was discriminated against due to his religious activities; and he went to the church for assistance. At interview with the delegate he advised that he was issued with a 2 million Vietnamese dong fine which he paid and then obtained a birth certificate for his third child.
109. At hearing when asked about this issue, the applicant said it is all linked: that is because of his involvement in unauthorised religious activities in Vietnam, including Bible studies the local authorities disliked him and when his third child was born they did not allow him to register [that child’s] birth unless he paid a fine. This was unfair and discriminatory treatment as others in his village who had more than three children did not have to pay a fine.
110. The Tribunal accepts when the applicant’s third child was born in early 2013 he had to pay a 2 million Vietnamese dong[10] fine to have [this] birth registered, given [this] birth was in breach of Vietnam’s two child policy in place at the time. However, it does not accept he was discriminated against in this respect due to his alleged involvement in unauthorised religious or political activities in Vietnam, given it does not accept his claims in this regard.
[10] Equivalent to AUD128.22 as of 8 August 2023,
111. On the applicant’s own evidence at hearing after he paid the fine his third [child’s] birth was registered by the authorities in Vietnam and [was] issued a birth certificate. Presently [this child] attends school there and he did not indicate any further issues.
Conclusion – refugee grounds
112. For the reasons set out above, the Tribunal finds the applicant does not face a real chance of persecution on return to Vietnam for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(2)(a).
COMPLEMENTARY PROTECTION
113. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that Vietnam is the ‘receiving country’ for these purposes.
114. For reasons set out above, the Tribunal finds the applicant does not face a real chance of serious harm if he returns to Vietnam from the authorities or anyone else because he was involved in unauthorised religious activities or anti-government protests there, as a Catholic, because of his family members (specifically his father and sister) or as a failed asylum seeker from a western country. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[11] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Vietnam on this basis as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam.
115. With respect to his involvement in political activities in Australia, as the Tribunal does not accept his motivations for participating in such activities was genuine, it does not accept on return he will be involved in any political activities and therefore finds that he does not face a real risk of significant harm from the authorities on this basis on return.
116. With respect to whether or not the applicant would come to the adverse attention of the authorities on return due to his involvement in anti-Vietnamese government protests here, given he was only involved in three or four and the last one took place eight years ago in 2015, the Tribunal considers the risk to be remote, even if his photograph attending the protest(s) and holding a yellow flag is picked up by the authorities online as claimed.
117. Given these considerations the Tribunal finds that there are no 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 he will suffer significant harm.
[11] [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
CONCLUSION
118. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

120. At hearing the applicant said he came to Australia with a brother, who he lives with, and has the same visa status as him: that is he applied for protection, which was refused, and he has sought review of that decision which is not yet determined. 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 any of the criteria in s 36(2).
DECISION
121. The Tribunal:
a.Affirms the decision not to grant the applicant a protection visa in matter 1907613 (Safe Haven Enterprise visa) application made on 2 August 2017); and
b.Sets aside the decision in matter 2116872 to refuse the applicant a protection visa (Safe Haven Enterprise visa) application made on 24 August 2020 and substitutes it with a decision that the visa application was not valid.

Nicole Burns
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 3535

17 August 2023

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