Background
Background to the litigation
The applicant was interviewed on 7 August 2020 and provided the following additional information:a.The Vietnamese police visited his parents to enquire about the applicant. b.The applicant was hit by police when he attempted to visit the court during C’s trial. He managed to escape being arrested, although other were arrested at this time. c.The applicant was a person of interest to the police due to his involvement with C’s group, but they did not have enough evidence to arrest him so just monitored him instead. d.The applicant was asked to explain his inconsistent statements regarding the number of summons and whether he attended the police station for interviewing. He stated he received summons in 2012 and 2013, but did not attend the interviews, instead hiding at a friend’s house. e.The applicant stated that anyone who goes against the Vietnamese authorities would be detailed for at least a few months.f.The applicant would also be at risk as a returned asylum seeker as he would be considered a ‘traitor’. Facts accepted by the Delegate Relevantly, the Delegate accepted the following claims made by the applicant:a.The applicant is a Vietnamese national.b.The applicant was in detention on 31 January 2014 and subsequently his personal details may have been accessed on the Department’s website.c.The applicant left Vietnam legally and would be returning to Vietnam as a failed asylum seeker. The delegate in respect of the applicant’s first application was also persuaded that they applicant has attended a meeting in September 2017 with a human rights youth group while in Australia. Both delegates relied on country information with respect to activism and returned asylum seekers that is now out of date. Hearing before the Tribunal The applicant did not submit any evidence or argument to the Tribunal ahead of the hearing date. During the hearing on 20 November 2023 the applicant gave the Tribunal the following evidence.a.He was born in Vietnam to parents who were married to each other. His parents are both still alive, as are his [siblings]. He is the middle child.b.He completed year 12 of high school but did not go to university. He said that his school reports were good, and he could have gone to university, but didn’t want to. He joined anti-government groups to propagate against the government instead.c.He said that his parents were not religious, and he is not religious.d.He is married to an ethnically Vietnamese woman who is an Australian citizen. He first met his wife in 2015, just after his arrival in Australia. They moved in together in 2020, and he has met her family in Vietnam on Facetime. They were married [in] 2023. At the time of the hearing his wife was pregnant.e.The applicant said that his reason for travelling to Australia was that two friends from his village told him that they had been tortured and he had to find a way to escape. f.The applicant described his travel to Australia and said that it was arranged by an organisation that were paid to assist him. His mother paid the organisation for his travel. He flew to [Country 1] from Vietnam and then flew to [Country 2]. From [Country 2] he got on a boat to Australia.g.The applicant said he didn’t like how the government of Vietnam was running the country; he hated that there was one party only and no freedom, he resented the total control exercised by the government over everything, including the press. He said that he had joined an anti-government group straight after his year 12 graduation, and that he had been introduced to the group by someone in his village who had taught him.h.The applicant said that he was strongly opposed to the government confiscating land. He said that it had not yet happened to his family, but that it could happen to his family in his generation or the next. He was not prepared to watch it happen to others on the blind assumption that his family would never be affected.i.The applicant also gave evidence about his friend C that has been redacted from this decision because it might identify the applicant.
Evidence
Evidence Before The Court
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 fear of persecution by the Vietnamese police, and imputed political opinions, coupled with his illegal departure from Vietnam and the data breach that potentially exposed him as a person held in detention in Australia, is collectively sufficient to expose the applicant to a real chance of significant harm if he returns to Vietnam. Entry Interview The applicant’s entry interview did not include any claims of persecution by the Vietnamese police. His claims were that his parents are both unemployed, disabled and unable to work. He also wanted to be able to help his parents and ‘pay back to them’. He came here to work, although did not have a specific job in mind. After he finished school two years prior to his arrival in Australia, he has been unable to find a job. The family was unable to pay ‘the debt’. There was no discussion as to what the debt was, who was responsible for paying the debt or who the money was owed to. His parents sold their house, although it is unclear from the interview whether this was to pay the debt or fund his departure from Vietnam. The applicant states his aunt paid for his trip to come to Australia. He stated that finding a job was the only reason he came to Australia. He stated he had no political affiliations and there was no local group activity, apart from being a Catholic area.Written statement dated 15 May 2013 Approximately two months after this interview, the applicant wrote to the Department to update his claims for protection. He stated that his failure to disclose the claims at his entry interview was because he was worried the information would be divulged to the Vietnamese authorities and was concerned for the safety of his family, who still reside in Vietnam. The applicant met [his friend – his name has been substituted throughout this decision with the letter [C] at Christmas in 2009. They became close friends, playing football and having coffee at … on Sundays or holidays. They both attended a Christmas party on 24 December 2011 at [a location in] Vinh City. There were Chinese herbal medicines being sold at the house. The police came and arrested 16 people at the party, including [C]. The applicant was not arrested at this time. The police suspected the applicant was involved as he was close friends with [C] and lived near his house. He was investigated ‘many times’ but the police found no evidence against him. The applicant followed [C]’s case closely and, when [C] was put on trial, the police stopped the applicant attending court, arrested him and took a copy of his ID in order to track him. The applicant went with [C]’s sister to campaign for peace prayers for the 14 young Catholics who were still being held in (police custody/detention).
Decision
Reasons for decision
For the reasons given above, the Tribunal is 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 decision dated 2 July 2018 for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act. The Tribunal sets aside the decision dated 3 December 2020 and substitutes it with a decision that the application dated 5 June 2020 is invalid.Jessica HendersonMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant’s fear of persecution by the Vietnamese police, and imputed political opinions, coupled with his illegal departure from Vietnam and the data breach that potentially exposed him as a person held in detention in Australia, is collectively sufficient to expose the applicant to a real chance of significant harm if he returns to Vietnam. Entry Interview The applicant’s entry interview did not include any claims of persecution by the Vietnamese police. His claims were that his parents are both unemployed, disabled and unable to work. He also wanted to be able to help his parents and ‘pay back to them’. He came here to work, although did not have a specific job in mind. After he finished school two years prior to his arrival in Australia, he has been unable to find a job. The family was unable to pay ‘the debt’. There was no discussion as to what the debt was, who was responsible for paying the debt or who the money was owed to. His parents sold their house, although it is unclear from the interview whether this was to pay the debt or fund his departure from Vietnam. The applicant states his aunt paid for his trip to come to Australia. He stated that finding a job was the only reason he came to Australia. He stated he had no political affiliations and there was no local group activity, apart from being a Catholic area.Written statement dated 15 May 2013 Approximately two months after this interview, the applicant wrote to the Department to update his claims for protection. He stated that his failure to disclose the claims at his entry interview was because he was worried the information would be divulged to the Vietnamese authorities and was concerned for the safety of his family, who still reside in Vietnam.