1909662 (Refugee)

1909662 (Refugee) [2024] AATA 2700 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Thi Nguyet Doan (MARN: 1795946)
CASE NUMBER:  1909662 and 2102171
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Katsambanis
DATE:8 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal:
a.affirms the decision not to grant the applicant a protection visa in matter 1909662 (Safe Haven Enterprise visa application made on 16 June 2017); and
b.sets aside the decision in matter 2102171 to refuse the applicant’s Safe Haven Enterprise visa application made on 25 September 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 08 February 2024 at 2:34pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – Full Federal Court remittal – arrival at Territory of Ashmore and Cartier Islands – family’s land confiscation – participation in protests – arrested – escaped – hiding for one year prior to departure – Viet Tan member – Catholic religion – mental health issues – – ongoing interest from Vietnamese police – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48A, 48B, 65, 91K, 417, 427(2), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MICMSMA v CBW20 [2021] FCAFC 63
MIAC v SZQRB (2013) FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2019 to refuse to grant the applicant a subclass XE-790 Safe Haven Enterprise visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).

BACKGROUND

The applicant claims to be a citizen of Vietnam.
According to Department of Home Affairs records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 25 February 2015. 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, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Safe Haven Enterprise visa on 16 June 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia.
The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.
Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 25 September 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The first application for a Safe Haven Enterprise visa made on 16 June 2017 was refused by the delegate on 3 May 2018. The delegate refused to grant this visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant applied for review of this decision to the Immigration Assessment Authority (IAA) on 3 May 2018. The IAA affirmed the decision not to grant the applicant a visa on 6 June 2018. The applicant sought judicial review of this decision and [in] December 2018 the Federal Circuit Court, by consent, quashed the decision of the IAA on the basis that the applicant was found not to be an ‘unauthorised maritime arrival’, and on the basis that the applicant had not been notified pursuant to s 66 of the Act of the decision made by the delegate on 3 May 2018.
On 27 March 2019 the applicant was renotified of the delegate’s decision made on 3 May 2018. A valid application for review of that decision was subsequently made on 17 April 2019. The Tribunal case number for the first review application is 1909662.
The second visa application made on 25 September 2020 was refused by a delegate on 8 October 2020. An application for review of that decision was made on 27 January 2021. The Tribunal case number for the second review application is 2102171. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
The applicant appeared in person before the Tribunal in Perth on two separate occasions, on 31 March 2023 and on 16 August 2023 to give evidence and present arguments. Both Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages. At the second hearing, the Tribunal also heard witness evidence from [Ms A] and [Mr B].
The applicant was represented in relation to the review by a registered migration agent. The representative attended both Tribunal hearings.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issues in this case are whether there is a real chance that if the applicant returns to Vietnam he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

First application for a Safe Haven Enterprise visa

In his application lodged with the Department on 16 June 2017 the applicant stated that he was born on [date] in [Vung Tau], Vietnam. He claimed to be of Kinh ethnicity and Catholic religion. He listed his occupation as [Occupation 1]. He had never been married or been in a de facto relationship, and he had no children. His parents, one sister and [number] brothers were all currently living in Vietnam. He also had two brothers living in Australia. He was in regular contact with his parents in Vietnam by telephone.
The applicant claimed that he arrived in Australia by boat after his father had paid someone to help him escape Vietnam. He also stated that he left the country in secret because he did not want the Vietnamese government to know. He did not use a passport to depart Vietnam as he was told by the organiser of the trip that he did not need any travel documents. He claimed that he had never previously travelled outside Vietnam.
The applicant stated that he had lived at the same address from birth until he had departed Vietnam. He claimed that he had finished school in 2005 and had then worked on his own family farm and on other farms in Vietnam preparing fields and harvesting crops from December 2005 until he departed Vietnam in April 2013.
The applicant claimed that he was seeking protection in Australia so that he did not have to return to Vietnam. He claimed that he decided to leave Vietnam because the Vietnamese government confiscated land belonging to his family. The family opposed and resisted this confiscation because they relied on this land to live. Further, as Catholics in Vietnam, they were being persecuted. In order to get any type of government job, the applicant would have to renounce his religion, which he refused to do, so he could only get a job working in the fields. However, they no longer had fields since the government confiscated the land.
The applicant claimed that due to his opposition of the nationalisation of his family land, he was beaten up by the local authorities. He was then summoned for further interrogation by the authorities, but he refused to go because he believed that he may be beaten again or imprisoned. He believed that if he stayed in Vietnam, he would be persecuted due to his religion and his opposition against the nationalisation of his family land, so he decided to escape.
The applicant stated that escaping Vietnam is seen as a serious crime and he would most likely be jailed for his actions. He also believed that the government have been keeping an eye on his family and waiting for the applicant’s return to harm him. He has been informed by his parents that the Vietnamese authorities are summoning them to attend their offices every two or three months to interrogate them on his whereabouts. He believed that they were doing this so that if the applicant returned, they could beat him or jail him.
The applicant claimed that he had previously been beaten up by the local police because he opposed the appropriation of the land. He did not seek assistance from the authorities in Vietnam because it was the police who wanted to arrest him. He claimed that in order to escape persecution, he moved to Ho Chi Minh City for 2 to 3 months prior to his departure from Vietnam.
The applicant claimed that he believed that the local authorities were monitoring his parents so that they would know if he returned to the country. He believed that they want to know his whereabouts so they can beat him and arrest him for his actions, which made him fear for his safety if he returned to Vietnam. He did not believe that the authorities would protect him because they have already questioned his parents about his whereabouts, and they were constantly summoning his parents to their offices. He feared they would beat him and jail him.
The applicant claimed that he had relocated in the past but that had not helped him. He refused to renounce his religion so he believed that he would always be persecuted for being Catholic. Further, in order to move he would require documentation from the authorities, and he believed they would make it very difficult for him to move. He believed that moving to another part of Vietnam would not solve his problems because his religious persecution would follow him wherever he went.
The applicant provided the Department with a copy of a notice dated [October] 2013, together with an English translation, signed by the Deputy Chief of Police summoning his parents to report to the police at 9 am [in] October 2013 ‘in order to be interrogated’.
The applicant also provided the Department with a copy of what he claimed to be his birth certificate, together with an English translation.

First interview with delegate

The applicant was interviewed by the delegate of the Minister in relation to this application on 4 April 2018.
The decision record notes that at this interview the applicant claimed that his family owned some farmland in Vung Tau which they used to grow vegetables to financially support themselves. This land was farmed by the applicant, his brothers and his parents. He claimed that around one year prior to his departure for Australia, this land and land belonging to other people in their village was flattened by the authorities. The applicant, members of his family and other villagers attempted to stand in between the bulldozers and the crops but the police arrived, and a struggle ensued. They were all placed inside vehicles whilst the bulldozers proceeded, however they were later released. A further struggle with the authorities took place before the applicant, his family and other villagers ran away. He claimed that [number] hectares of the [number] hectares of land that his family owned had been confiscated by the authorities.
The applicant claimed that after this land confiscation he relocated to Ho Chi Minh City. During this time, his parents were issued with summons for the family to present to the police station but only his parents attended because his other siblings were too scared. According to the decision record, the applicant stated that neither of his parents had been arrested or charged in the period following this land confiscation. However, he claimed that they were regularly required to report to the authorities regarding the applicant’s whereabouts.
The decision record states that the applicant expressed his fears at the interview that he would be charged with resisting officials on duty and would subsequently face imprisonment if he returned to Vietnam. He stated that one of his brothers had been fined since the applicant departed Vietnam, however he avoided imprisonment because he was married with children. The applicant added that because he was single, he would be a target for Vietnamese authorities.
The applicant claimed that this interview that he was a member of the Viet Tan group in Australia and feared harm on return to Vietnam because of his membership of this group. However, the decision record notes that the applicant claimed he had only become involved with the Viet Tan in the last month before the interview. He subsequently claimed that he was a supporter of this group but was yet to become a member, had yet to attend any events of this group and was awaiting vetting by the Viet Tan in order to become a member.
The decision record also notes that the applicant was the subject of a data breach by the Department around 31 January 2014 when some of his details, as well as details of other people in immigration detention at that time, had briefly become accessible in a routine report released on the Department’s website.

Review by Immigration Assessment Authority

The applicant did not make any new claims during the IAA review process.

Second application for a Safe Haven Enterprise visa

In his second application, lodged with the Department on 25 September 2020, the applicant provided similar personal and background details as those he had provided in his first application.
The applicant indicated that he had been in a de facto relationship in Australia since [June] 2017 with [Ms A], who was the holder of an Australian permanent residency visa.
In this application, the applicant repeated his previous claim that he had lived at the same address in Vietnam from birth until March 2013. He also claimed that he had worked on his family farm and other farms from May 2001 to March 2012 and that he was subsequently unemployed from March 2012 to March 2013.
On his application form, the applicant repeated his claims for protection made on his first SHEV application form and added that he would also face persecution as a failed asylum seeker if he was not granted protection in Australia.
On this second form the applicant did not make any claim that he was, or had ever been, a member or supporter of the Viet Tan.
Apart from documents previously provided, the applicant also provided a copy of his Australian driver’s licence and a copy of his Vietnamese national identity card.
In an email dated 6 October 2020, the applicant’s representative indicated that the applicant had also applied for a partner visa in Australia.
On 13 October 2020 the applicant provided the Department with a “Notification of Incorrect Answer(s)’ form. On this form it was stated that in the second SHEV application the applicant had incorrectly stated that two of his brothers were currently residing in Vietnam when they were actually residing in Australia.
In a submission dated 19 January 2021, the applicant’s representative provided the Department with country information from a variety of sources in support of the applicant’s claims. These documents were as follows:

An article dated 18 December 2018 from World Watch Monitor titled ‘New religion-control law changes little in Vietnam after 1 year’.
The DFAT Country Information Report Vietnam issued on 13 December 2019.
The Human Rights Watch World Report 2019 for Vietnam.
The United States Department of State International Religious Freedom Report 2017 for Vietnam.
An article dated 23 April 2016 from the Australian Broadcasting Corporation titled ‘Four asylum seekers behind boat journey to Australia sentenced to jail, Vietnamese groups say’. This article highlights that these people who were sentenced to jail in Vietnam were jailed for organising an illegal escape overseas.
An article dated 24 May 2016 from The Guardian titled ‘Vietnamese asylum seekers forcibly returned by Australia face jail’. This article also indicates that these people were charged with the crime of ‘organising for others to flee abroad illegally’.
An article dated 16 January 2020 from Amnesty International Australia titled ‘Vietnam: Arrests and social media crackdown followed deadly clashes over land’.
A report dated 6 March 2014 from the Immigration and Refugee Board of Canada titled ‘Vietnam: consequences for a returnee who exited the country illegally, such as through the use of fraudulent foreign visas’.
An undated printout from a website called Quora titled ‘What do Vietnamese think about the Viet Tan?’.
A statement dated 1 January 2018 from the Ministry of Public Security of the Socialist Republic of Vietnam titled ‘Information about terrorist group Viet Tan’.
An undated article from the Guardian discussing the conviction and jailing of a Sydney-based retiree for membership of the Viet Tan.
Two photographs showing the applicant attending a function that is claimed to be a Viet Tan function with other members who were claimed to be wearing Viet Tan t-shirts

In this submission, the representative also stated that the applicant would endeavour to obtain confirmation of his membership of the Viet Tan in the near future.

Second interview with delegate

The applicant was interviewed by a delegate in relation to this second SHEV application on 13 January 2021.
The decision record notes that at this interview the applicant repeated his previous claims for protection but added that [one] brother had been in detention in Australia. However, this brother returned to Vietnam and when he returned, the applicant claimed that the brother was arrested and tortured because of his illegal departure.
It is noted in the decision record that the applicant claimed that the authorities in Vietnam would stop Catholic people on the way to church to prevent them from attending. He claimed that he would attend church by sneaking in. When asked to outline how he did this, he claimed that if it was raining, he could sneak past the authorities. He also stated that the authorities in Vietnam prevented Catholics from working in the government sector.
In relation to the summons for his parents that the applicant had previously provided, it is noted in the decision record that when the applicant was asked at the interview why this document was in the name of his parents and not in his own name, he responded that it was usually in his name but sometimes the authorities would also summon his parents. The applicant also claimed that despite the land dispute happening some years ago, his family were consistently being annoyed by the authorities and would be asked where the applicant and his brothers were currently located.
The decision record notes that the applicant claimed he became involved with the Viet Tan in Perth in 2018. He would attend meetings and protests, but he had been busy with work recently. He claimed that the last protest meeting he attended was approximately six months before the interview.
It is noted in the decision record that at this interview the applicant claimed that his brother, [Brother A] had departed Australia around the time the applicant was released from detention and that departmental records indicated that this person had departed Australia in March 2014. The applicant claimed that after his brother returned to Vietnam he had been arrested and imprisoned for two years because he had illegally departed the country.
In relation to the departmental data breach, the applicant expressed concerns that he feared being arrested on return to Vietnam. The applicant also expressed fears about contracting Covid-19 on return to Vietnam.

Application for Review

The representative made a submission to the Tribunal on 26 April 2019 which outlined the history of the applicant’s SHEV application and the claims for protection. The representative requested that the applicant should also be considered for a permanent protection visa.
Together with this submission, the representative provided the following country information:

an article dated 17 May 2018 from Radio Free Asia titled ‘Provincial police level phony charges against Vietnamese Catholics attacked by thugs’.
An article dated 8 May 2018 from Radio Free Asia titled ‘Vietnamese Catholics petition police over cover-up for officials who ordered attack’.

The applicant was invited to appear before the Tribunal on 22 February 2023.
On 10 February 2023, the applicant’s representative requested that the Tribunal delay its consideration of the applicant’s SHEV application until after the applicant’s partner visa application had been determined. This request was not agreed to by the Tribunal on the basis that the scheduled hearing was a directions’ hearing to discuss how the matters may be dealt with by the Tribunal.
On 21 February 2023 the representative sought postponement of the scheduled hearing on the basis that the representative was ill. The Tribunal agreed to reschedule the hearing to 31 March 2023.
On the morning of the rescheduled hearing, 31 March 2023, the representative provided the Tribunal with a submission sent in 5 parts that consisted of more than 1,000 pages of witness statements, written submissions and country information as well as documents previously provided. The relevant documents provided were as follows:

Business documents relating to the applicant’s business as a [Occupation 1] in Australia.
The United Kingdom Home Office report Country Policy and Information Note Vietnam: Ethnic and religious minority groups dated February 2022.
The DFAT Country Information Report Vietnam dated 11 January 2022.
An article dated 14 December 2021 from Human Rights Watch titled ‘Vietnam: free land rights activists’.
An article dated 2 December 2016 titled ‘Land grab protester to remain behind bars’.
An undated article from a website called Facts and Details titled ‘Land grabs in Vietnam’.
An article dated March 2019 from Le Monde Diplomatique titled ‘Vietnam’s farmers fight for their land’.
An article dated 10 July 2020 from the Vietnam Law and Legal Forum website titled ‘Land conflicts in emerging suburban areas in Vietnam: causes and effects’.
A copy of the Vietnam Law and Legal Forum monthly publication for January and February 2023.
A copy of the Vietnam Law and Legal Forum official gazette titled ‘the English translation of Cong Bao’.
An article dated 15 October 2016 from newmatilda.com titled ‘Saving the world, one life at a time’.
An undated article from Global Briefing Report titled ‘Despite assurances, Vietnam arrests returned asylum seekers’.
An article dated 31 May 2016 from Asylum in Australia titled ‘Vietnam’s monthly wrap’.
An article from Independent Australia dated 16 March 2017 titled ‘Fate of Vietnamese asylum seeker children hangs in the balance’.
A report dated 6 May 2020 from Asylos and ARC Foundation titled ‘Vietnam: returned victims of trafficking - issues affecting the likelihood of re-trafficking’.
The United Kingdom Home Office report titled ‘Country Policy and Information Note Vietnam: Victims of trafficking’ dated April 2020.
Extracts from the Viet Tan website.
The United Kingdom Home Office report titled ‘Country Policy and Information Note Vietnam: Opposition to the state’ dated September 2018.
A report of a United Kingdom Home Office fact-finding mission to Vietnam conducted between 23 February and 1 March 2019, published on 9 September 2019.
An article from the Vietnam insider website titled ‘Vietnam: the household registration book is about to be erased’ dated 11 September 2022.
An article from the Vietnam insider website titled ‘HCM City starts issuing chip based identity cards’ dated 2021.
An article dated 17 February 2022 from Human Rights Watch titled ‘Locked inside our home - movement restrictions on rights activists in Vietnam’.
A statement from the Department of Home Affairs dated 24 July 2019 relating to the data breach of information about people who were in immigration detention in Australia on 31 January 2014.
An undated article from the Guardian titled ‘Asylum seekers, families allegedly threatened after Australian immigration data breach’.
A report dated 20 May 2014 from KPMG titled ‘Management initiated review: privacy breach - data management’.
An information sheet dated August 2020 from the Asylum Seeker Resource Centre titled ‘Information on the Federal Court data breach’.
Past Tribunal cases that had been determined by other members in relation to cases from Vietnam.
An article dated 9 October 2012 from Frontiers in Integrative Neuroscience titled ‘Emotion and cognition interactions in PTSD: a review of neurocognitive and neuroimaging studies’.
An article dated 25 April 2022 titled ‘PTSD is associated with impaired event processing and memory for everyday events’.
An article dated February 2021 from Scientific Research titled ‘Research progressive cognitive impairment in post-traumatic stress disorder’.
A witness statement from [Mr B] who outlined his own refugee journey to [one country] and Australia, explained how he met the applicant in 2015, stated how the two of them had previously worked together, restated the applicant’s claims for protection, indicated that the applicant has expressed suicidal thoughts about returning to Vietnam and stated that the applicant was a member of Viet Tan. [Mr B] claimed that the applicant was often forgetful and had a short memory, so he often needed assistance from his partner and from work colleagues to recall work schedules and job orders.
A witness statement from the applicant’s partner, [Ms A], who outlined details about her relationship with the applicant, their intentions to have children soon and her fears about being without the applicant if he returned to Vietnam. [Ms A] restated the applicant’s claims and her fears about what would happen to him if he returned to Vietnam. She also claimed that he was a member of the Viet Tan and would attend their events in Australia. [Ms A] claimed that the applicant suffered from mental health issues which he tried to hide. He also refused to seek medical assistance for his problems. Work had provided him some relief but as his hearing at the Tribunal approached, his mental health had again taken a slide.
A medical report from [Dr A] dated 24 March 2023 in which it is stated that based on the available history and examination findings it is the doctor’s opinion that the applicant suffers from post-traumatic stress disorder ‘with anxiety and depressive symptomatology as a result of previous traumatic experiences (both physical and psychological traumas) that he was subjected to in 2012/2013 by the Vietnamese government authorities’. The doctor restated the applicant’s claims for protection and outlined that the applicant was currently employed in Australia and was in a stable relationship with his partner. It is stated in this report that the applicant’s mental health condition and his psychological well-being had been satisfactorily managed over the past few years with the help, love and support of his partner and through maintaining stable employment. However, it was pointed out that the uncertainty relating to the applicant’s visa status and his fears of returning to Vietnam were causing him to experience ongoing PTSD symptoms from time to time at varying degrees. His condition had been exacerbated by fears relating to his forthcoming Tribunal hearing and his partner had noticed the change in his mental state. It was stated that the applicant currently does not require any treatment with antidepressants however, he requires some form of trauma counselling and government support to stay and work in Australia so that he can be protected from the authorities in Vietnam. It was claimed that [one] brother was sent home from Australia and was subsequently tortured and imprisoned by the Vietnamese authorities for the illegally escaping from Vietnam. The applicant feared this could also happen to him. It was stated that these fears together with the uncertainty of his situation and his PTSD have had profound and severe impact on his mental health and well-being. The doctor claimed that if the applicant returned to Vietnam his mental health would no doubt deteriorate progressively and severely, and he may be at risk of suicide.

First Tribunal Hearing

As previously communicated to the applicant’s representative, the first Tribunal hearing on 31 March 2023 was a directions or case management hearing to determine outstanding administrative matters and discuss any unresolved issues.
At this hearing, the applicant and the representative agreed that the claims made across both SHEV applications were effectively identical. They both indicated that they understood that the Tribunal would hear evidence in relation to both applications at the same time and would issue one decision record in relation to both matters pursuant to s 427(2) of the Act. They also indicated that they were comfortable with this approach.
The representative stated that the voluminous submission that she had submitted just prior to this hearing contained the entirety of material that the applicant currently wished to rely on and there were no outstanding reports or documents that may be submitted at a later date. The Tribunal pointed out that it was under an obligation to consider all material submitted until a decision was made in the matter before it.
The representative stated that the applicant had applied for a partner visa around September 2020, but this matter had yet to be determined by the Department. Both the representative and the applicant were uncertain whether a bridging visa had been issued with respect to this application, but the representative stated she would endeavour to clarify this issue prior to the next hearing.
The representative agreed to provide the Tribunal with a summary of the claims for protection that the applicant was seeking to rely on as soon as possible after the hearing.

Further submissions to Tribunal

In a submission dated 14 April 2023, the representative restated the applicant’s background and claims for protection that the applicant had previously made.
In this submission, the representative claimed that the applicant’s parents in Vietnam would regularly be summoned by local authorities to attend their office where they would be questioned about the whereabouts of the applicant and added that the parents would need to pay bribes to the authorities every time.
The representative added that in 2019, a further one-hectare piece of land belonging to the applicant’s parents had been confiscated by the authorities and that video existed of this event. At the time of making this decision, this claimed video has not been provided to the Tribunal. The Tribunal has placed no adverse weight or implication on the non-provision of this video. However, it notes that in the absence of such video it cannot reasonably assess the claim that video exists of the event or that such claimed video proves the event occurred as claimed.
It was claimed that the applicant’s brothers also came to Australia to seek protection but were unsuccessful. One brother returned to Vietnam where he experienced persecution as a failed asylum seeker and had to pay large sums of bribery money to the local authorities.
It was claimed that after the applicant left Vietnam, his parents had told him by telephone that local police had gone to their home looking for the applicant.
The submission also addressed the issue of the Department data leak in 2014. It was acknowledged that this data leak did not contain any details about the applicant’s claims for protection or health information but contained other personal details that would identify the applicant as being held in detention in Australia. The representative also expressed the applicant’s fears because he was potentially subject to a data breach from the Federal Circuit Court on 31 March 2020, as he had previously had an application for review before that court but provided no details to confirm that the applicant’s details were included in this data breach.
The representative also claimed that the applicant had participated in activities of the Viet Tan in Australia and that he remained a vocal supporter of pro-democracy in Vietnam.
On 14 August 2023, the representative wrote to the Tribunal requesting that the scheduled hearing on 16 August 2023 be postponed as the determination of the applicant’s partner visa was ‘imminent’. The Tribunal sought clarification from the representative on what basis she considered that this partner visa determination was ‘imminent’. Following further documentation relating to the partner visa application, the Tribunal determined not to postpone the scheduled hearing due to the ongoing uncertainty as to when the partner visa application may be determined.
On 15 August 2023, the applicant’s representative provided a further submission containing a summary of the applicant’s claims and country information from a variety of sources in support of the applicant’s claims. The Tribunal has read and considered this submission and the country information prior to making its decision in this matter.
Also on 15 August 2023, the applicant’s representative made a further submission to the Tribunal requesting that if the Tribunal decided to affirm the matter before it that consideration be given to referring the matter to the Minister pursuant to s 417 and/or s 488 of the Act on the grounds that the applicant was in an ongoing relationship with an Australian citizen and that removal of the applicant to Vietnam would result in significant hardship for his partner.

Second Tribunal Hearing

The second Tribunal hearing, held on 16 August 2023, was a substantive hearing to enable the applicant to give evidence and present arguments in support of his claims for protection.
At the commencement of this hearing, both the applicant and the representative acknowledged that if the applicant’s first application was considered valid then his second application would be invalid. However, the Tribunal assured the applicant and the representative that it would consider all claims made by the applicant across both application when determining his claims for protection.
The applicant confirmed that he had been born and grew up in [Vung Tau], Vietnam, where his family home was located. When asked where he was living in Vietnam before he came to Australia, the applicant stated that he was living at his family home but after the protest he had escaped to live at the homes of relatives and friends. When asked where these homes of his relatives or friends were located, the applicant stated that they were in different towns or cities. He claimed that this happened around one year before he came to Australia. However, when asked if he could state in which month or which year he had started living at these different places, the applicant stated that it was a long time ago.
The applicant confirmed that his parents were still alive and living in the family home. They were [produce] farmers and owned their own land. He claimed that the land on which they grew [produce] was located close to the family home, but they also grew [other produce]on land that was located a little further away from the home.

The applicant stated that he had [brothers] and [sisters]. Two of his brothers were in Australia and had applied for protection. One was living in Perth and the other was living in Brisbane.
The applicant claimed that before he came to Australia, he worked on the family farm helping his parents in Vietnam. He claimed that he had completed Year [grade] at school but could not recall in which year he had completed these studies.
When asked if he had any problems in Vietnam before he came to Australia, the applicant stated that he had obstructed people who were doing their civic duties. When again asked if he had experienced any problems in Vietnam, the applicant stated that the government had removed some land belonging to his family, and he was opposed to this land confiscation. He claimed that this occurred around one year before he left to come to Australia. When asked if he could recall a specific date or a month when this land confiscation occurred, the applicant stated that it was in 2012 and it was a long time ago.
The applicant was asked if the government had confiscated all of the land belonging to his family and he confirmed that this was his claim. He stated that they took one part in 2012 and then took another part in 2019.
The applicant was asked what land his family were now using to farm [produce] if all of their landholdings had now been confiscated by the government. He responded that his family no longer had any land. It was pointed out to the applicant that a few moments earlier in the hearing he had told the Tribunal that his parents were farming [produce] in Vietnam, and it appeared that he had now changed his evidence. The applicant responded that he thought that earlier in the hearing the Tribunal had asked him about what his parents used to do. He added that his parents were now old, and they rest.
It was pointed out to the applicant that earlier in the hearing when asked about what his parents currently did, he had responded that they farm [produce] as well as [other produce], which appeared to be a different claim to the claim that he was now making. On this basis, the Tribunal asked the applicant why it should accept that he was telling the truth in relation to these claims. The applicant responded that all the land had been resumed by the government. He added that the land used to grow [other produce] was near the house.
The applicant claimed that his family had around [number] hectares of land that was confiscated by the government. He claimed that his family had owned this land for a long time and that the government did not provide them any notice about the confiscation of the land. He claimed that they simply brought machinery into the land to work on it and they knocked down the trees. When asked what the government did with this land after they confiscated it from his family, the applicant stated that he did not know because he was opposed to the confiscation, and he escaped.
The applicant was asked what specific things he did to oppose the confiscation of this land. He claimed that he would not let them use the machines to do things on the land. When asked how he did this, the applicant stated that he stood in front of the machines, but he was surrounded and arrested. When asked if he was the only person arrested for blocking this machinery, the applicant stated that many people were arrested but some escaped. He claimed that three or four members of his family had been arrested on that day including his father. The applicant claimed that the police grouped all of the arrested people into one spot, and he was put into a vehicle, but he ran away. He claimed that he had been put into a car by the police, but this car had no roof so many people, including himself, got out and escaped.
When asked what he did after he escaped from this vehicle, the applicant stated that he hid in some nearby gardens and for the next year he would temporarily live at homes of acquaintances or relatives. The applicant was asked in which areas these homes were located. He responded that they were near the district where he lived. He claimed that he initially stayed in that area but then moved to a different province. He then stated that he initially moved to Dong Nai province and then to Ho Chi Minh City. He claimed that he lived in Ho Chi Minh City for a few months and rented a house in [named] district with an [acquaintance]. He stated that he came to Australia after having lived in Ho Chi Minh City.
The applicant was asked if he had experienced any other problems in the past in Vietnam. He claimed that he was a Catholic and had experienced some issues with being a Catholic. When asked what issues he had experience on the basis of his religion, the applicant stated that the government does not give priority to Catholics. When again asked what specific problems he had experienced in Vietnam on the basis of his Catholic religion, the applicant stated that he was not allowed to attend church in his local area. When asked if his local church was named after a particular saint, the applicant stated that the church was named after his village. When asked on what basis he had become a Catholic, the applicant stated that his parents were Catholics and that he had been baptised when he was a few months old.
The applicant claimed that in Vietnam he would attend church two or three times a week, but the government would not allow that, so he did it in a stealthy manner. When asked what stealthy manner he used to attend church, the applicant claimed that he attended whenever there was nobody to disrupt the church. He claimed that in Australia he would regularly attend the Vietnamese community church located in the northern suburbs of Perth. He claimed he would travel for around an hour from his home [in] the southern suburbs of Perth, because this church service was the only service that he knew about that was conducted in Vietnamese.
The Tribunal asked the applicant to identify any specific problems that he had experienced being a Catholic in Vietnam. He responded that in Vietnam people were stopped from attending churches and Catholic people were not allowed to take part in government activities. When asked what activities Catholic people were precluded from, the applicant responded that they were precluded from jobs or positions in government. However, he confirmed that he had never applied for any job or position in government in the past in Vietnam.
The applicant claimed that he had never held a Vietnamese passport and had not used a passport to depart from Vietnam. When asked why he chose to depart illegally from Vietnam without a passport, the applicant stated that he wanted to find freedom and if he remained in Vietnam he would have been arrested or jailed. He confirmed that his parents arranged for him to depart Vietnam through a people smuggler. He claimed that he did not know how much his parents had paid to this people smuggler. When the Tribunal expressed some surprise that in the 10 years he had been in Australia he had not asked his parents how much they had paid the people smuggler, the applicant responded that he did not want them to be stressed. When asked if he would regularly send money from Australia to his parents in Vietnam, the applicant stated that he sent them gifts rather than money. He claimed that his parents had used the savings from their [produce] farming to pay for his passage to Australia.
The applicant claimed that he operated his own business as a [Occupation 1] in Australia and that his partner assisted him with this [business]. His partner had previously worked doing [another job] but ceased this job more than a year ago. He claimed that he met his partner in Australia and that they were from different parts of Vietnam. The couple were living in rented accommodation in Australia, but his partner had recently bought a house in [location], which was being renovated. The applicant confirmed that he had contributed around half the deposit for the purchase of this house and would provide money and work for the renovations. The couple jointly paid the mortgage repayments and he added that his partner was a director of his [business].
The applicant was asked if he had experienced any problems in Australia. He responded that he had not yet experienced any problems here but that he sometimes suffered from depression. He claimed that he had difficulty sleeping when he recalled his past and also when he thought about appearing in a court or a tribunal. He claimed that the only medication that he occasionally took was Panadol and some sleeping tablets which he had purchased over the counter. When asked if he had sought any treatment for his claimed depression, the applicant stated that he had spoken to a general practitioner around five or six months ago. He could not recall the name of this general practitioner and indicated that he had only visited this doctor on one occasion. A work friend introduced him to this doctor who was located somewhere near [location].
The applicant confirmed that the general practitioner he was referring to was the same doctor who had provided a report on his behalf to the Tribunal. The applicant was asked why he would travel a significant distance from his own home [to] the northern suburb [to] see this doctor. He responded that it was because the doctor was Vietnamese and his friend[had] introduced him to the doctor. He claimed that he had not seen any other doctor about his depression, but he may do so in the future. When asked if his primary purpose in seeing this doctor was to obtain a report to be provided to the Tribunal for the purposes of his claims for protection, the applicant agreed that this was the case. However, the applicant denied that he saw the doctor solely for the purposes of obtaining the report and added that he also used him for treatment. When it was pointed out to the applicant that a few minutes earlier in the hearing he had stated that he was not receiving any treatment for depression, he responded that the doctor told him how to sleep better and told him that if he did not think about these issues, it would make it easier for him to sleep.
The Tribunal asked the applicant what he feared about returning to Vietnam now or in the reasonably foreseeable future. The applicant responded that he feared he would be tortured and arrested for opposing people doing their civic duties and for escaping overseas. When asked which people he had obstructed, the applicant stated that it was due to the land disputes and then added that he also had fears about his participation in the Viet Tan group. For completeness and clarity, given the context of this discussion at the hearing, the Tribunal considers the statement about opposing people doing their civic duties directly related to the officials who allegedly went to the applicant’s parents’ land for the purposes of appropriating it, which is one of the central elements of the applicant’s claims for protection.
The applicant claimed that he was a member of the Viet Tan in Australia. When asked if he had any evidence of this membership, the applicant stated that he had some photos. When asked if he was referring to the two photos that appeared to have been taken at the same event which had been previously provided to the Tribunal, the applicant agreed that this was the case. The applicant was asked if he had any letter or other documentary evidence from the Viet Tan to evidence that he was a member of this group. He responded that he needed to ask the organisation. When told that he had every opportunity prior to the hearing to obtain such documents, the applicant responded that he had a lot of work to do.
The Tribunal asked the applicant why it should accept that he was a member of this group given that he had a long time to obtain documentary evidence and had not provided any evidence apart from two photographs which did not make it clear that he was a member of the Viet Tan. The applicant stated that it was because of the Covid pandemic. It was pointed out to the applicant that the Covid pandemic related restrictions had eased a long time before the Tribunal hearing and that the restrictions in Western Australia had not been as severe as those in other states. The applicant stated that after Covid finished he was busy with work so he could not go to meetings or participate in this group.
The applicant was asked if he feared any other problems about returning to Vietnam. He responded that he was also concerned about his depression because he believed that treatment would be better in Australia. When it was pointed out to the applicant that, based on his own evidence, he was not receiving any ongoing treatment for his depression apart from self-medicating with Panadol and sleeping tablets, the applicant responded that he did not have the time to seek such treatment.
The applicant stated that he did not have any other fears about returning to Vietnam apart from those which he had raised with the Tribunal at the hearing. The Tribunal expressed its concern to the applicant about his land confiscation claims given that he had provided vague evidence about this confiscation and could not provide a date or a month in which it occurred other than claiming that it happened around a year before he came to Australia (which would place it sometime in 2012). The applicant responded that the government in Vietnam does not operate like the government in Australia. It says one thing and does another. They do not provide any evidence or documents to people when they confiscate land from them.
The Tribunal pointed out to the applicant that the police summons issued to his parents, which he had provided, did not mention the applicant and does not mention land confiscation. On this basis, the applicant was asked why the Tribunal should accept that this summons has any relevance to the claims that the applicant is making. The applicant responded that he did not keep his own summons because it was a long time ago, but the family had kept a copy of his parents summons. He added that the government never put a reason in the summons but simply invited people to attend the police station.
It was pointed out the applicant that in previous submissions he had made over time he had claimed that after the problems relating to land confiscation, he had moved directly to Ho Chi Minh City. However, at the hearing he had provided a different version of events, claiming to have lived in various places in his local area and in the Dong Nai province before eventually settling in Ho Chi Minh City a few months before he came to Australia. Given the inconsistent evidence he had provided over time, the applicant was asked why the Tribunal should accept his claims. The applicant responded that he was panicking when he was escaping and because of his condition, he was forgetful. He also wanted to forget the things that it happened to him during this time.
The applicant confirmed that in a submission in April 2023, his representative had made a claim on his behalf that his parents had to pay bribes to the police in Vietnam every time they were summoned to go to the police station. The applicant was asked why he had not raised this claim at any point prior to April 2023, if this claim was true. He responded that he replied to the Tribunal’s questions that were asked of him. It was pointed out the applicant that the Tribunal had not asked him about this claim, but it was a claim made in a submission from his representative that had not been mentioned at any time prior to April 2023. The applicant responded that it was because the Tribunal had not asked him the question. The Tribunal then asked the applicant why he had not mentioned this particular bribery claim in his applications for protection or in any submissions or interviews with the Department. He responded that he only replied when he was asked direct questions. When again asked why he had not included this claim in the written claims he had made in his protection visa application forms, the applicant stated that he did not understand this problem very well.
The applicant confirmed that he was one of [number] siblings who had come to Australia. One of his brothers, [Brother A], had returned to Vietnam around 2014 or 2015. The applicant claimed that this brother had been invited to the police station but had then been beaten up. The brother had to pay money to be released. He claimed that his brother had to pay around about 10 million Vietnamese Dong, which he stated was equivalent to $500 or $600 in Australia. He then stated that this happened immediately upon his brother’s returned to Vietnam. The applicant claimed that since that time his brother was ‘under management’ and that he had to pay bribes every time he was invited to the police station. He claimed that his brother did not work in Vietnam and survived with money given to him by his parents. When it was pointed out to the applicant that at one point earlier in the hearing, he had claimed his parents were no longer working, the applicant stated that his parents had some money left from the time when they had been working.
The applicant claimed that he had never been involved in any other political activities apart from his alleged involvement with the Viet Tan in Australia. When asked if he had made any public comments or any posts on social media opposing the Vietnamese government or being critical of the Vietnamese government, the applicant referred to the two photos taken at a ceremony which he had attended and which he had previously provided to the Tribunal. He then confirmed that he had never made any public comments or social media posts critical of the Vietnamese government.
The Tribunal pointed out to the applicant that country information from the Department of Foreign Affairs and Trade indicates that political activists who publicly criticise the Vietnamese government are at moderate risk of official discrimination in Vietnam. On the basis of the photographs provided, the Tribunal could accept that he had attended some events in Australia where there may have been some presence or involvement by members of the Viet Tan. However, the applicant had provided no evidence that he was actually a member of this organisation, he did not appear to be an organiser or a key figure in any organisation, there was no evidence that he had ever made or published any public comments that criticise the Vietnamese government and there was no evidence that he intended to do so in the future. In response, the applicant stated that there may be communists living in Australia. He added that the communists who lived in Australia might be in the crowd at these events to see who is associating with who.
In relation to the alleged data breach at the Federal Circuit Court, the applicant indicated that he had no evidence that his name or any other details had been included in any such breach and confirmed that he had not received any correspondence from the Federal Circuit Court in relation to such breach. The representative expressed her concern that the Vietnamese government may know the applicant had applied for asylum in Australia if the applicant’s details had been included in such a data breach.
The Tribunal expressed some concern about the contents of the general practitioner’s letter the applicant had provided to the Tribunal. The doctor provided a PTSD diagnosis on the basis of one visit and one examination of the applicant but had not provided any medication to the applicant or provided any ongoing treatment program. It appeared as though the applicant was managing any PTSD or mental health issues on his own and on this basis the Tribunal asked the applicant why he could not continue to manage such issues in Vietnam in the same way he did in Australia. The applicant responded that he would be arrested and jailed if he returned to Vietnam. He had been away for so long and he didn’t even know if his records had still been there. He claimed that the government had a new ID card system with computer chips so they could track down people easily and the applicant would not be free so it would be easier for him to get sick.

The applicant stated that he was not worried about Covid anymore but was worried about psychological issues and being arrested in Vietnam. He also feared the physical consequences of being beaten or jailed.
The Tribunal discussed with the applicant country information from the Department of Foreign Affairs and Trade that suggested that the Catholic Church was one of 38 religious organisations registered in Vietnam and such registered groups operated with little or no government interference in the country. In addition, DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In country sources had suggested that, in general, Catholics are able to worship freely and receive sacrament such as the Eucharist, reconciliation and confirmation in Vietnam. In addition, there was no information that the Tribunal had sourced to indicate that Catholics were discriminated against in relation to obtaining government employment. It was further pointed out to the applicant that this information would tend to indicate that his past claims about harm suffered in Vietnam as a Catholic may not be true and that if he returned to Vietnam, he would not face any serious harm because of his Catholic religion. The applicant responded that as he had said before, the Vietnamese government says one thing and does another thing. When it was pointed out to the applicant that the information the Tribunal was referring to was from Australian government sources rather than Vietnamese government sources, the applicant responded that what was on television is different from reality.
The Tribunal discussed with the applicant country information from the Department of Foreign Affairs and trade that suggested there was no evidence that the Vietnamese government uses criminal penalties against failed asylum seekers including those who departed illegally. The information suggested that failed asylum seekers may be detained on arrival and interviewed or questioned, primarily to obtain information about illegal people smugglers, and then they are released. At worst, the information suggested that people who left the country illegally through the aid of people smugglers would be subject to an administrative fine. This information would tend to indicate that if the applicant returned to Vietnam, he would not face any serious harm because he was failed asylum seeker or because he departed the country illegally in 2013. In response, the applicant stated that the government in Vietnam does things differently to the government in Australia.
In relation to any impact a data breach may have on the applicant, the Tribunal pointed out that the country information previously discussed would indicate that if the Vietnamese authorities became aware that the applicant was a failed asylum seeker he may be detained for some period of time at the airport and he may be subject to an administrative fine for his illegal departure but he would then be able to get on with his life in Vietnam without hindrance. The applicant responded that he could not live over there because it was too dangerous for him, and he would lack freedom.
The applicant and the representative indicated they had nothing else to discuss with the Tribunal.
The witness, [Ms A], indicated that she was the partner of the applicant, the couple had been dating since 2017 and had been partners since 2019. They wanted to start a family but they could not do so because of the applicant’s Visa uncertainty. She added that the applicant was a refugee and he attended Viet Tan events in Australia. However, she stated that she had never attended any of these events with the applicant, but he had told her that he went. When asked how many times the applicant had told her he had attended these events, the witness stated that it was a few times, but she could not remember exactly how many times it was.
The witness confirmed that the couple had made an application to the Department for the applicant to be issued with a partner visa on the basis of his relationship with the witness and they were currently awaiting determination of this application.
The witness, [Mr B], stated that he was the person who had trained the applicant to be a [Occupation 1] and had worked with the applicant in the past. He claimed that the applicant was a good person and very honest, but it was very hard for him to grow his business without an Australian visa. The witness added that the applicant would sometimes tell him that he might commit suicide because of his fears of returning to Vietnam and losing everything he had built in Australia. The witness claimed that he had last seen the applicant around a week before the hearing and added that he would see him all the time because the applicant talked to him about his problems.
When the Tribunal asked the applicant why he had not raised any issues about any suicidal thoughts at any stage before they were raised by the witness, the applicant responded that the witness was his boss and had taught him a lot of things. The applicant added that the witness took care of him.
At the conclusion of the hearing some discussion took place about whether, based on previous submissions by the representative, it was likely that the applicant may be imminently issued with a partner visa. The representative indicated that she would keep the Tribunal informed about the progress of any such application.

Further Information from Representative

On 21 August 2023, the representative informed the Tribunal that the Department was still insisting on various documents, including a Vietnamese penal clearance, before it would finalise the applicant’s separate partner visa application. On this basis, the representative requested that the Tribunal proceed to a determination of the applicant’s claims for protection as soon as possible.

FINDINGS AND REASONS
Tribunal Case Number 1909662

For the following reasons, the Tribunal has concluded that the decision under review in Tribunal Case Number 1909662 should be affirmed.
The applicant arrived in Australia without any formal identity documents. However, since his arrival in Australia he has provided copies of his birth certificate and his Vietnamese national identity card. Accordingly, the Tribunal accepts the applicant’s identity as claimed. The Tribunal also accepts that the applicant is a national of Vietnam and has assessed his claims accordingly.
There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
The applicant has, over time, claimed that he suffers from mental health issues including depression and PTSD and that these issues have caused him some memory loss, some forgetfulness and some inability to present his case to the Department and the Tribunal as thoroughly, accurately and consistently as he would have liked. He has also claimed that he fears harm, including the risk of suicide, on return to Vietnam for reasons of his poor mental health including his alleged depression and PTSD issues.
In support of these claims the applicant has provided a medical report from a general practitioner, [Dr A], who claimed that the applicant suffered from post-traumatic stress disorder with anxiety and depressive symptomatology, the ongoing uncertainty of the applicant’s visa status severely impacted on his mental health and that if he returned to Vietnam, his mental health may deteriorate and that he may be at risk of suicide. The report also states that the applicant requires trauma counselling and ongoing government support.
Ordinarily, in the absence of any other evidence before it, the Tribunal would place some significant weight on such medical report. However, in the circumstances of this particular case, the Tribunal has considered this report in the context of the other evidence before it relating to the applicant’s claimed mental health issues.
At the second Tribunal hearing, the applicant clearly stated that he had only seen this doctor on one occasion and at least one of the primary purposes, if not the only primary purpose, of this visit to the doctor was to obtain the report so it could be presented to the Tribunal in support of the applicant’s claims for protection. The applicant clearly stated at the hearing that despite the doctor’s recommendation contained in the report, he was not currently undertaking any type of treatment or counselling for any of his claimed mental health issues, including any depression, PTSD or suicidal ideation. He also stated that he was not on any medication, apart from self-administered Panadol to deal with any of his claimed issues.
Although the Tribunal accepts that attending a doctor to obtain such a report to verify an applicant’s claims is of itself a legitimate and often non-controversial purpose, it must at all times be considered in the entire context of the circumstances of each particular case.
In the applicant’s case, he admitted that he presented to a doctor with claimed serious mental health problems but only did so on one occasion and despite a recommendation to seek further counselling, he chose not to undertake any such further counselling. Although he did state at the hearing that he may seek treatment for his depression in the future, this statement was provided in the context of being asked why he had chosen not to undertake the counselling recommended by the doctor and it appeared that the statement was provided to cover up for his failings to undertake the trauma counselling that was discussed in the medical report but which the applicant had deliberately chosen not to undertake. Despite the opportunity to do so, the applicant gave no indication whatsoever that he had any currently intention to seek any further medical assistance or counselling in the foreseeable future for his claimed mental health issues. In this context, the Tribunal considers the applicant’s suggestion that he may seek such treatment in the future does not evidence any genuine desire to seek such treatment but was an excuse offered to cover up for the fact that he had deliberately chosen to ignore or not undertake a treatment suggestion made to him by a medical professional. The Tribunal also considers any inference from the applicant’s evidence that he may have been too busy with work or too overwhelmed with his issues to seek such treatment or counselling was made in a similar manner and for a similar purpose, being a convenient excuse rather than a genuine reason or explanation for his failure to seek any such recommended treatment or counselling.
Having considered the applicant’s evidence about the circumstances of his attendance at this doctor and his failure to follow through with the counselling recommended by the doctor, the Tribunal finds that the applicant only attended the doctor for the purpose of obtaining a favourable report to present to the Tribunal and that he did not attend this doctor on the single occasion that he went to seek any form of genuine assistance with any ongoing mental health issues. On the basis of this finding that the applicant’s attendance at this doctor on one occasion was not motivated by a genuine desire to seek assistance, the Tribunal also finds that the applicant has not been a witness of truth in relation to any of his mental health issues including any claimed depression, PTSD or suicidal ideation and that his evidence in this regard lacks credibility.
The medical report itself lacks details about the doctor’s dealings with the applicant and how the doctor came to the conclusions that he did in the report. The report does not highlight on what basis the general practitioner was qualified to issue such a mental health diagnosis including a diagnosis of PTSD or suicidal ideation, what tests or other diagnostic methods he used to make the diagnosis, what outside consultants or specialists he may have consulted with in the process of making such diagnosis, what other information (apart from the applicant’s account of events and symptoms on his one visit to the doctor) he may have used to inform his diagnosis or what type of trauma counselling should be delivered to the applicant, who should deliver this counselling or the frequency of the recommended counselling. When reading the report from the doctor and based on the applicant’s evidence that he only saw this doctor on one occasion, the report reads like a recital of the applicant’s own reported symptoms rather than an attempt at a genuine and detailed diagnosis based on any ongoing examination and treatment of the applicant or based on any specialist assessment. Accordingly, the Tribunal in these circumstances has placed little weight on this medical report when considering the applicant’s mental health status.
In assessing the applicant’s claimed mental health issues, the Tribunal has also considered the comments made at the second hearing by the witness, [Mr B], who claimed that the applicant had expressed suicidal thoughts to the witness. However, the Tribunal has placed no weight on this evidence given that the applicant did not make any such claims about having suicidal thoughts at any stage during this protection visa application process, even after the applicant was asked at the second hearing to directly comment on the specific claims made by the witness in relation to such alleged suicidal thoughts.
The articles provided by the applicant over time about PTSD contain generic information about PTSD and do not contain any information about the applicant or any indication that the applicant actually suffers from any such his condition. Accordingly, whilst being informative about the general subject matter, the Tribunal has placed no weight on these articles when determining whether the applicant himself suffers from PTSD or from any other mental health issues.
Having considered the evidence before it, being the applicant’s own evidence where the Tribunal has found that the applicant has not been a witness of truth in relation to his mental health issues and the medical report on which the Tribunal has placed little weight for the reasons outlined above, the Tribunal does not accept that the applicant suffers from any mental health issues including any claimed depression, PTSD or suicidal thoughts or ideations. Accordingly, the Tribunal finds that the applicant does not suffer from any of these claimed mental health issues and therefore also finds that any such claimed mental health issues did not cause the applicant any memory loss, any forgetfulness or in any way prevented the applicant from presenting his case to the Department and the Tribunal as thoroughly, accurately and consistently as he would have liked.
Based on the finding that the applicant does not suffer from any mental health issues including any claimed depression, PTSD or suicidal thoughts or ideations, the Tribunal is not satisfied that if the applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reasons of any claimed mental health issues including any claimed depression, PTSD or suicidal thoughts or ideations.
The applicant has claimed that when he was living in Vietnam, he was involved in protests opposing the confiscation or compulsory acquisition of his family’s land by Vietnamese authorities. During these protests he had been arrested by the local police but managed to escape from custody and went into hiding for around a year before he departed Vietnam illegally and made his way to Australia. He has also claimed that he suffered discrimination in the past in Vietnam because of his Catholic religion.
As discussed with the applicant at the second Tribunal hearing, given his claimed involvement in these protests against the confiscation of his family’s land, the Tribunal would expect that he would be able to provide some level of detailed information about the confiscation of the land and the protests associated with this confiscation, including some accurate details about when the confiscation and associated protests occurred.
However, over time, the applicant has provided vague details about when these events occurred. He has claimed that his family land was confiscated, and the ensuring protests unfolded, ‘around a year’ before he left Vietnam for his journey to Australia. He has consistently claimed that he departed Vietnam around March or April 2013 and he arrived in Australia [in] April 2013. However, at the second Tribunal hearing the applicant was unable to provide any more details about when these alleged events relating to this land confiscation occurred, including the month that these events were alleged to have occurred. Instead, he stated that the events happened in 2012 but was unable to give any details about an approximate date, an approximate month or even an approximate period within that year when they alleged occurred.
The Tribunal has already found that the applicant does not suffer from any mental health issues and that these claimed mental health issues did not cause the applicant any memory loss, any forgetfulness or in any way prevented the applicant from presenting his case to the Department and the Tribunal as thoroughly, accurately and consistently as he would have liked
The Tribunal accepts the applicant’s explanation that the events happened some time ago and, therefore, the Tribunal does not an expectation that the applicant would be able to recall the specific date the events occurred. However, as discussed with the applicant at the second hearing, given the significant nature of these events and the claimed subsequent impact on the applicant and his family, the Tribunal would expect that, in these circumstances, the applicant would have some recollection of the month on which the events occurred or at least the period of a particular year in which they occurred. The Tribunal has therefore placed significant adverse weight on the fact that the applicant could not provide more detailed evidence about when the alleged land confiscation and associated protests occurred when assessing whether these events occurred as claimed.
Given that the applicant has claimed to have been actively involved in his parents’ farming business in Vietnam, the Tribunal would expect that the applicant would be able to provide consistent evidence about what his parents did on the confiscated land and when they did those activities on that land. However, the applicant has provided inconsistent and contradictory details over time about this issue.
Prior to the second Tribunal hearing, the applicant consistently claimed that his parents land holdings in Vietnam had been confiscated by Vietnamese authorities over time and that they were therefore precluded from continuing their farming activities.
However, at the second Tribunal hearing, the applicant was initially asked what his parents were currently doing for work in Vietnam. He responded directly that they were farmers who grew [produce] on their own land and added that they also grew some [other produce]on some other land that they owned. He gave no indication at this stage of the hearing that his parents had ever ceased this farming activity or that they had ever been precluded from continuing this farming activity. Instead, the applicant clearly stated that his parents continued to farm and continued to derive income from farming.
It was only after the applicant had raised the land confiscation issue and the Tribunal then queried how his parents could continue their farming activities if their land had been confiscated as claimed that the applicant stated at the second hearing that his family no longer conducted the farming activity and that his parents were now old, so they had to rest. He also stated that the land had been resumed by the government some time ago in two separate acts of land confiscation over time.

The Tribunal also accepts that the applicant was the subject of a data breach by the Department whilst he was in Australia and that he was potentially subject to a further data breach that occurred at the Federal Circuit Court. In both cases, the applicant has claimed that such data breaches may have enabled the Vietnamese authorities to determine that he was in Australia and that he had applied for asylum in Australia. He has not made any claims that he fears the data breaches would cause him any other type of harm apart from alerting the Vietnamese authorities to his presence and protection applications in Australia and no other claims arise on the facts before the Tribunal.
Although it is impossible to determine who may have had access to such data during these breaches, the Tribunal is prepared to accept that it is possible that the Vietnamese authorities have had some access to this data and may therefore be aware that the applicant has lodged an application for protection in Australia. Accordingly, the Tribunal has proceeded on the basis that it accepts that it is at least plausible that the Vietnamese authorities know that the applicant has applied for protection in Australia and that on any return to Vietnam he may be considered by the authorities as a failed asylum seeker.
On the basis of his illegal departure from Vietnam and on the possible consequences of the data breaches, the Tribunal has considered the circumstances the applicant may confront if he returns to Vietnam as someone who had illegally departed from that country and as someone who was known or considered to be a failed asylum seeker in Australia.
The latest DFAT report states as follows:
Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam 2022, 11 January 2022, p 33, para 5.29.
The DFAT report states that the Vietnamese authorities do detain people who are returning to Vietnam after departing illegally and being involved in people smuggling, but that those people who employed the services of people smugglers would, at worst, only be subject to administrative fines:
In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.[3]
[3] Ibid, p 33, para 5.30.
DFAT does accept that returnees from Australia are sometimes questioned on arrival in Vietnam, but the latest DFAT country information report describes the focus of the Vietnamese authorities as being on obtaining information about people smugglers. DFAT also states that they are not aware of returnees from Australia being held overnight in these circumstances:
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[4]
[4] Ibid, p 33, para 5.31.
The same report also states that:
Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries.[5]
[5] Ibd, p 33, paras 5.34 – 5.35.
When this information was discussed with the applicant at the hearing, the applicant stated that the government in Vietnam does things differently to the government in Australia and also stated that he would lack freedom to live in Vietnam, but he did not directly engage with the information presented to him despite having the opportunity to do so.
On the basis of the country information referred to above about the treatment of people who had departed Vietnam illegally and who were at returning to Vietnam as failed asylum seekers, the Tribunal accepts the applicant’s evidence over time that his brother was detained by the Vietnamese authorities on return to Vietnam from Australia as a failed asylum seeker. It also accepts that the brother was subject to an administrative fine upon return of around $500 to $600 as claimed by the applicant and that the brother may have been forced to pay bribes to police. However, the Tribunal considers that any treatment or further questioning of the brother by the Vietnamese authorities would depend on that brother’s own personal profile and his previous interaction with Vietnamese authorities and would not therefore have any direct impact on the applicant himself.
Based on the country information referred to above, the Tribunal accepts that if the applicant returned to Vietnam there is a likelihood that he may be detained and questioned by the local authorities for reasons of being a person who departed Vietnam illegally and for reasons of being a failed asylum seeker in Australia. However, the country information makes it clear that such detention would be for a short period of time for questioning, with the authorities focusing on finding out information about people smuggling operations and the people behind those operations. The country information suggests that people who are the perpetrators of people smuggling would be treated differently but, on the evidence before the Tribunal, the applicant is only a victim of people smuggling and there is no information before the Tribunal to suggest he either is a people smuggler or that he would be perceived to be a people smuggler by anyone including the Vietnamese authorities. In addition, the applicant has not made any claim and no claims arise from the information before the Tribunal that the applicant is a member of any ethnic minority or would be perceived by anyone to be a member of any ethnic minority that, as outlined in the country information from DFAT above, may be differentially treated in this regard by Vietnamese authorities.
Accordingly, based on the country information referred to above and based on the applicant’s profile as a victim rather than a perpetrator of people smuggling, the Tribunal finds that any detention or questioning on return to Vietnam would be short (for a few hours rather than being detained overnight or for some days), the applicant would not be beaten or harassed or harmed in any other way during this short period of detention and questioning, the questioning would be focused on people smuggler intelligence gathering and the applicant would be released after a short period of questioning without being harmed and without attracting any ongoing interest from Vietnamese authorities for these reasons.
Based on the country information referred to above, the Tribunal accepts that on return to Vietnam that the applicant would be subject to an administrative fine for his illegal departure from the country. When this issue was discussed with the applicant at the hearing, he did not make any claim and there is no information before the Tribunal to suggest that the payment of such fine would cause him any economic hardship that would threaten his capacity to subsist. On the contrary, the applicant and both witnesses stressed the successful business the applicant ran in Australia, clearly implying he had the means to pay such a fine if levied on him. Despite the opportunity to do so, the applicant has given no indication over time that he would choose not to pay any such fine if it is levied on him. Accordingly, on the evidence before it, the Tribunal finds that the applicant would have the capacity to pay any such administrative fine if it is levied on him on return to Vietnam, that he would pay such fine as levied and that after payment of the fine this matter would not cause him any ongoing issue or harm whatsoever in Vietnam.
On the information before it, although the Tribunal accepts that the applicant may be detained and questioned by Vietnamese authorities for a brief period of time after return to Vietnam and that he would be subject to an administrative fine which he would pay, the Tribunal is not satisfied that if the applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reasons of departing Vietnam illegally or for being a failed asylum seeker in Australia. There is no evidence before the Tribunal that, in his own personal circumstances, the mere act of the applicant departing Vietnam illegally or seeking asylum in Australia would give rise to any imputation or perception that he is opposed to the Vietnamese government or that he would suffer any harm on return to Vietnam on that basis.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
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 has already found that there is no real chance that the applicant would suffer any harm on return to Vietnam for reasons of any ongoing police interest in the applicant for his alleged involvement in protests relating to the confiscation of his family land or for any alleged escape from custody in the aftermath of such alleged protests or for reasons of his Catholic religion or for reasons of departing Vietnam illegally or for reasons of being a failed asylum seeker in Australia or for reasons of any mental health issues, including any claimed depression, PTSD or suicidal thoughts or ideation, or for reasons of any actual or imputed actual or imputed political opinion opposed to the Vietnamese government or in favour of democracy in Vietnam. The Tribunal has also found that the applicant would not suffer any harm on return to Vietnam for reasons of actively participating in any anti-government or pro-democracy events or movements or publicly expressing any support for any anti-government or pro-democracy sentiments.
As the test for real risk is the same as the test for real chance (see MIAC v SZQRB (2013) FCR 505), the Tribunal therefore finds that if the applicant returned to Vietnam there is no real risk that he would suffer any significant harm for these reasons.
Given the findings that the applicant does not have any mental health issues as claimed, the Tribunals finds that if the applicant returned to Vietnam, he would not need to seek any treatment for any such claimed mental health issues. Accordingly, the Tribunal finds that if the applicant returned to Vietnam there is no real risk that he would suffer any significant harm because he would not be able to access the level and quality of mental health services and treatment that he could access in Australia as claimed.
The Tribunal has found that if the applicant did return to Vietnam he would be subject to an administrative fine for departing Vietnam illegally but it has also found that he would both have the capacity to pay this fine, that he would choose to pay this fine and that upon payment of the fine there would be ongoing adverse interest in the applicant from the Vietnamese authorities for this reason. Accordingly, based on these findings and once having the fine, the Tribunal finds that that if the applicant returned to Vietnam, there is no real risk that he would suffer any significant harm for this reason.
The Tribunal has accepted that upon return to Vietnam, the applicant may be subject to a brief period of detention and questioning. However, the Tribunal has also found that this period of detention and questioning would be short (for a few hours rather than being detained overnight or for some days), the applicant would not be beaten or harassed or harmed in any other way during the period of detention and questioning, the questioning would be focused on people smuggler intelligence gathering and the applicant would be released after a short period of questioning without being harmed and without attracting any ongoing interest from Vietnamese authorities for these reasons. On the basis of these findings, the Tribunal finds that that if the applicant returned to Vietnam, there is no real risk that he would suffer any significant harm from this short period of detention and questioning.
Apart from these claims, the applicant has not made any other claims that he fears harm on return to Vietnam and no other claims arise on the facts before the Tribunal.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2) in this matter.

Tribunal Case Number 2102171

As discussed above, this second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid.
Therefore, the Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

Request for Ministerial Intervention

The applicant, through his representative, has requested that the Tribunal refer the applicant’s case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The representative has stated that a refusal to grant the applicant a protection visa, and a subsequent return to Vietnam by the applicant, would have a detrimental impact on his partner who is an Australian citizen or Australian permanent resident.
However, as discussed at both Tribunal hearings, the applicant and his spouse have lodged an application for a spouse visa with the Department and are currently awaiting a decision on that separate application.
In these circumstances, and in particular given the fact that this separate spouse visa application is still to be determined by the Department, the Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

DECISION

The Tribunal:

a.affirms the decision not to grant the applicant a protection visa in matter 1909662 (Safe Haven Enterprise visa application made on 16 June 2017); and
b.sets aside the decision in matter 2102171 to refuse the applicant’s Safe Haven Enterprise visa application made on 25 September 2020 and substitutes it with a decision that the visa application was not valid,

Peter Katsambanis
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…

[2024] AATA 2700

8 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction