1910124 (Refugee)

[2023] AATA 3986

1910124 (Refugee) [2023] AATA 3986 (15 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sang Ik Moon (MARN: 1069258)

CASE NUMBERS:  1910124 and 2100873

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Joseph Lindsay

DATE:15 August 2023

PLACE OF DECISION:  Melbourne

DECISION:For case number 1910124: the Tribunal affirms the decision made by the delegate of the Minister on 21 November 2017 not to grant the applicant a protection visa.

For case number 2100873: the Tribunal sets aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 26 June 2020 was not valid.

Statement made on 15 August 2023 at 11:51am

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Roman Catholic – father donated land to church – member of youth groups – arrested, interrogated and beaten – relocations with family and later by self – one friend killed – unlawful maritime departure – returned failed asylum seeker – credibility – vague and inconsistent claims and evidence about activities and harm – limited knowledge of rituals – young with limited opportunity to provide supporting evidence – limited church membership and activity accepted – claims of harm not accepted – recognised religious organisation – significantly different claims in second application – threatened and fined – claims not accepted in entirety – arrival at Ashmore and Cartier Islands – statutory bar does not apply – first application not invalid therefore second application invalid – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 48A, 48B, 65, 91K

Migration Regulations 1994 (Cth), Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447

MICMSMA v CBW20 [2021] FCAFC 63

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 November 2017 to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who is a citizen of Vietnam, applied for the visa on 29 November 2016. The applicant participated in a hearing with the Tribunal on 30 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. The representative also participated in the Tribunal hearing.

3. It is noted that, due to the particular circumstances of the applicant, the Tribunal conducted a hearing in respect to two SHEV applications – for case 1910124 and case 2100873. The applicant was aware of these circumstances and consented to the Tribunal hearing both matters in the hearing.

4. It is acknowledged that there has been a lengthy period of time in which this matter has run. There was a period of time in which this case and other such cases were put on hold until legal issues were further clarified. Subsequently, there has been a direction to now proceed with finalisation of these cases. No further submissions have been received in that time.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

6. 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.

7. 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).

8. 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.

9. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant’s claims in his 2016 SHEV application are as follows. It is noted that the SHEV application was initially signed and dated 24 February 2016, but also that a supplementary submission was then provided later in 2016 with the assistance of [Mr A] of [Organisation 1]. In respect to the reasons why he left Vietnam, the applicant stated:

    Because I fear for my own safety, for I was involved in religious activities. From my father's stories and my own terrible experience, I would like to present my life-time sufferings to you as the reason why I leave Vietnam: my family was targeted for brutality, tortures and religious persecution by the communist government, because my family swapped the land to build the Church of [Location 1]. In 2000, to avoid these persecutions, my family moved to another location living at [Location 2], Yen Thanh, Nghe An; but we was still targeted, constantly maltreated, mentally and physically tortured. As a result, my mother could not survive and passed away while I was too young. Since then, my father and I have always been living in constant fear, continuing to move from this place to another ... In 2006, I moved to Dak Lak for my own safety. But the fear, sufferings and pending persecutions were there: Local authorities summoned me up all the time, for torturing, terrorizing and beating me and confiscated the money I saved. The only reason was I participated in the Church's activities: they forbid me to go to Church, or take part in the religious activities. All the days and nights, I was living under fear, torture and terror. The only peace and happiness that I could find was the time in the Church where I could give all my sufferings to God and talk to my mother. Again in 2010, I had to move to [Location 3], Kon Tum; but there the same thing happened to me! The level of maltreatment and tortures was even worse ... Because of taking part in the Easter celebrations in 2013, I had to escape the arrest and persecution from the government.

12. In response to the question of what he thought would happen to him if he returned to Vietnam, the applicant claimed:

    I fear that I will be maltreated, tortured and persecuted. It is because I used to take part in the religious activities from varied places, especially taking part in the Easter celebrations in 2013 in [Location 3], which the communist government did not allow and monitored very closely. The other reason the communist regime of Hanoi certainly will arrest me and kill me is because the police of [Location 3] asked me to meet them after getting involved in the Easter Masses in 2013 and I knew they would persecute me so I escaped and came to Australia. I had one cousin and close friend whose name is [Mr B] living in [Location 3], Kon Tum. He ran away with me, but he was not as lucky as I am, so he was arrested and last year I heard he passed away in.the police detention, but later police lied about his death that he had an accident; even though everyone knew he was killed by the tortures and brutality of the Vietnamese police. I really fear that I would receive the same thing if I return to Vietnam.

13. In response to the question as to whether he experienced harm when he was in Vietnam, the applicant ticked the “yes” box and stated:

    When I was living in Dak Lak from 2006 to 2010, I experienced physical and mental harms 3 times, and economic harm one time:

    - The first time was when I got involved in religious activities of Christmas 2007, I was arrested, tortured and beaten.

    - The second time was in 2008 when I took part in Catholic Youth group and then police called me up and tortured and beaten me.

    - The third time was after the celebration of Christmas 2009. Police called me up to work with them 3 times for mental tortures and the last time I was arrested over night and brutally beaten and confiscated all the money I saved.

    Therefore after that, around February 2010, I secretly moved to another place.

    Again, when I lived in Kon Tum, from 2010 to 2013, I experienced harms once:

    That was 2012 during Christmas time after I attended a prayer's service, communist police arrested me, and I was savagely beaten to hospitalizing. The results of those harms still leave physical scars on my [Body parts], and emotional scars will never be forgotten. I am always obsessed with those harms, living in fear, terror and worries about my own safety and my life ahead.

14. In response to the question as to whether he sought help within Vietnam after the harm, the applicant ticked the “no” box and wrote:

    It is because the local authority of communist regime did not allow me any chance to turn to anyone for help. If I seek help from anyone else, I would get killed before getting help. Also, the area I used to live was remote, and the only place that I could trust and turn towards to seek help is the Church, or church leaders. However, this is remote and closely monitored by local authorities and communist police, so I could not do anything, or could not turn to anyone for to seek help.

15. In response to the question as to whether he moved, or tried to move, to another part of Vietnam to seek safety, he ticked the “yes” box and wrote:

    My family and I moved to varied locations to seek safety.

    - In 2000 my family moved from [Location 1] parish, where the land dispute was happening, to [Location 4] parish, [Location 4], Yen Thanh, Nghe An

    - In 2006 I moved from [Location 4] parish to [Location 5], Dak Lak

    - In 2010 I moved to [Location 3], Kon Tum

    Even though I moved to several places to find safety, I still could not find it, because the communist regime placed me on a special target and under close monitor, so I could not find help or safety. But I had to suffer arrests, tortures and harms everywhere I had been to. It is because the communist regime never tolerate religious activities!

16. In response to the question as to whether he thought he would be harmed or mistreated if he returned to Vietnam, he ticked the “yes” box and wrote:

    Definitely I will be mistreated, harmed and persecuted if l return to Vietnam:

    - I will be summoned up to communist authorities

    - I will be physically and mentally tortured

    - I will be arrested and beaten

    - I will be imprisoned and persecuted.

    The people responsible for this are the cruel and brutal communist regime of Vietnam Why: It is because I got involved in religious activities, failed to response to their summon notice and brutality once, and went to Australia to seek for asylum.

17. In response to the question as to whether he thought the Vietnamese authorities could or would protect him if he went back to Malaysia, he ticked the “no” box and wrote:

    Certainly the communist authorities will never protect me, but rather I will suffer more tortures, brutalities and get persecuted. There is no form of freedom in communist regime, especially religious freedom or religious activities. I was already in their special target because I did get involved in religious activities from varied places, failed to respond to one of their summon notice, and especially escaped to Australia to seek asylum. Moreover, badly and sadly, one of my friend recently got killed by the authorities of brutalities. So I believe they will never protect me, but rather they will kill me.

18. In response to the question as to whether he thought he would be able to relocate within Vietnam, he ticked the “no” box and wrote:

    I do not think that I would be able to relocate within that communist country. Everywhere in the communist regime of Vietnam is unsafe for Catholics, especially young Catholics as I am. Young Catholics are currently maltreated, imprisoned and persecuted. For myself, I already did try to move around the country to find safety within this terrible communist regime, but there was no safety for myself in that cruel communist regime of Hanoi.

19. The supplementary statement is as follows:

    SUPPLEMENTARY STATEMENT OF [THE APPLICANT] (BOAT ID [REFERENCE])

    1. I refer to my subclass 790 Safe Haven Enterprise Visa application lodged on 24 February 2016.

    2. At the time I lodged my SHEV visa application I did not have access to legal advice and did not have an interpreter as well. I only had a friend who provided me with limited assistance with my application.

    3. I now wish to make the following amendments to my responses to questions in my previous SHEV visa application:

    a. I wish to amend my response to Part B Question 6 to “No”, as I do not have any members of my family unit who are not in Australia.

    b. I wish to amend my response to Part C Question 37 and confirm that my current residential address in Australia is [Address 1].

    c. I wish to amend my response to Part C Question 38 and confirm that my current postal address in Australia is care of [Organisation 1, Address 2].

    d. I wish to amend my response to Part C Question 65 and confirm that I am not sure if I did a health examination whilst I was in Australian Immigration Detention.

    e. I wish to amend my response to Part C Question 78 and confirm that I have been in Australian Immigration Detention Centres from [April] 2013 to [March] 2016.

    f. I wish to amend my response to Part C Question 81 and confirm that my current residential address in Australia is [Address 1] and that I left [Immigration detention centre] [in] March 2016.

    g. I wish to amend my response to Part C Question 82 and 84. I confirm that I am working full time as a sub contractor of [Mr C] who is a contractor of [Company]. [Mr C]’s phone number is [Number].

    4. I now wish to make a number of amendments to my previous claims and responses to Part C Questions 89 to 96.

    Problems in Vietnam

    5. I was born in [Year] and my mother passed away in the same year due to birth complications at child birth. I have no siblings and I am an only child.

    6. The problems for my father and I started around the year 2000. At this time my father owned some land in Nghe An in Vietnam along with other parishioners who belonged to the same church. He wanted to give away some of this land to the [Location 1] Church to build a soccer ground but the authorities did not approve of this because they suspected that the church would build another church related building later down the track. As I was very young at this time but my father has told me that he had to move us after this trouble with the authorities down south to Dak Lak.

    7. When my father took me to Dak Lak, he left me in the care of a foster family who were my father’s friend. My foster parents were [Mr D] (foster father) and [Ms E] (foster mother). Since I was left with my foster family in 2006 I lost contact with my father. I stayed in Dak Lak from 2006 to 2010 and regularly attended [Location 5] Church.

    8. On 24 December 2007, I was attending religious activities to celebrate Christmas at the Church and was arrested by local police during a raid on the event. I was taken with a number of other people from the event to the local police station. At the police station I was beaten with the other people who were detained and after the beating interrogated about the fact that I came from another region, had no identity documents and no household registration. I was eventually released around midday on 25 December 2007 after my foster father came to pick me up and paid a large bribe.

    9. I was also a member of my church’s Catholic young group which involved praying together in church and helping our local community. Around the early part of 2008, I was attending group prayer at church when we were raided by local police who arrested me for the same reasons that I was arrested for in the previous year. I believe that they were targeting the youth group to stop people like myself from engaging with the church and practising my faith. I was held at the police station for just over a day and was only released when my foster father came to pay a large bribe. I was warned by the police not to join or engage with the Catholic youth group anymore and they also wanted to know who organised the youth group. I didn’t listen to them though because being a part of the youth group was very important to me and felt like the members were like my brothers and sisters.

    10. The following year on Christmas Eve, 24 December 2009, I was arrested again by local police just outside the church while I was helping to prepare the church for Christmas Eve mass. I was taken to the local police station and asked to pay a large bribe. I said that I didn’t have this money and they beat me severely for an hour and kept me detained for two days. They interrogated me again about who was the group leader organising the youth group activities and I refused to tell them who this was, they beat me several times when I refused to give them this information. I was eventually released after two days.

    11. Because of these experiences in Dak Lak I decided to flee the area around February 2010 to [Location 3] in Kon Tum with another friend from church. I stayed with [Mr F] owned a large farm and was referred to this man by people at [Location 6] Catholic church in [Location 3]. I worked with [Mr F] on his farm and helped transport goods as well to the Da Nang to sell.

    12. I attended the [Location 6] Catholic church regularly and unfortunately in December 2012 I was targeted again by local police while I was attending Christmas religious festivities at our sister Catholic [Location 7] church held in a large common house building. Both of these churches were run from different houses in the local area because the local authorities did not permit church activities at all in the area without a permit. The churches were able to get regular permits for Sunday mass but not for large religious events like Easter or Christmas mass.

    13. I was taken to the local police station with many people who were attending the Christmas mass. I didn’t have any form of identification or documents so I was detained for three days. During these three days I was interrogated about my identity and beaten several times. I was eventually released warned not to go back to church or else they will imprison me for a long time. I was beaten so severely that I had to hospital to get treatment for injuries to my right arm and right wrist.

    14. I continued to go to church because it was such an important part of my life and on 31 March 2013 I was arrested by the local Police while attending Easter mass. Whilst I was being transported to the local police station I managed escape. They tried to put me into a large bus and I ran away when they opened bus door and hid in some vegetation and bushes nearby. I was in hiding for a few hours and then managed to get home to [Mr F]’s house and get my belongings.

    15. I spoke to the truck driver who worked for [Mr F] and asked him to transport me to Da Nang with him. I made some arrangements while in Kon Tum to leave Australia by taking a fishing boat from Da Nang and then taking a larger boat that was travelling to Australia. I left Vietnam from Da Nang [in] April 2013.

    Since coming to Australia

    16. Whilst I was in detention I wasn’t able to go to Church but after I left immigration detention and was living in [Suburb 1], I attended the Catholic Archdiocese of Melbourne regularly on Sundays whenever I didn’t have work from October 2013 to February 2015.

    17. I also attend another church in [Suburb 2], Victoria called [Church]. Sometimes this centre holds youth group activities and I attend these activities which involve visiting elderly and sick people in community.

    18. I still have friends in Vietnam who I went to church with who are hiding from the Vietnamese authorities. I believe that one of my close friends passed away in police custody in Vietnam in 2014. I fear that if I am returned to Vietnam I would be tortured or seriously harmed by the Vietnamese authorities.

    My fears if I am returned to Vietnam

    19. I am worried that I would be arrested if I return to Vietnam and will be tortured or imprisoned. I left Vietnam illegally and I have a profile with the Vietnamese authorities because of my religious activities. There would be nowhere in Vietnam that would be safe for me.

    20. If I had to return to Vietnam, I would have to try and hide my religion as I couldn’t go to Church every week because it is not safe to do this. I would be denied my basic right to engage my faith and practise my religion as a Catholic.

    21. I do not have any support in Vietnam; my Father will not care for me and has not cared for me since 2006. He has re-partnered with someone else and has children with them whom I have never met and don’t know much about them.

1. In the hearing the Tribunal spoke with the applicant. He said he was born on [Date] in Yen Thanh District, Nghe An Province in Vietnam. However, he said he grew up in a different place, [Location 2], but that this is in the same province. He said he went to school, and the highest level of school he completed was year [Number]. The Tribunal discussed this with the applicant, and he confirmed that he had not had much education at all. He explained that he moved around a lot when he was small, and that going to school was “too much of a hassle.” He said he moved around a lot because he followed his father wherever his father moved. He said that when his father moved, all of the family moved. He said his father had some problems with the local authorities, and that was why he had to move.

2. The applicant said his father was doing some work at the church. When again asked why he stopped going to school when he was so young, the applicant again said he moved a lot. He said he does not have any brother or sisters. He said his mother passed away when she gave birth to him, and his father raised him by himself. He said this was why he left school so early and, when he was around [Year] years old, he wanted to go to work. He said his father was a farm worker, and he did not own a farm.

3. The applicant explained that he himself went to work as a farm worker at [Year] years old, doing such things as herding water buffalo. He said he left Vietnam in 2013, but he was not sure exactly how old he was when he left Vietnam. He said he is “just a countryside person.” He said that between the age of [Year] and the time he left Vietnam, he moved to Dak Lak Province, and then to Kon Tum Province, and then he came to Australia. He said he did farm work the entire time he was in Vietnam.

4. When asked why he left Vietnam when he was so young, the applicant said his father had some problems with the local authorities because he did work for the church.

5. When again asked why he left Vietnam, the applicant said when he moved to the South, he stayed there for a few years, and he did some “religious activities” in Dak Lak Province and Kon Tum Province, but the local authorities did not allow him to participate in such “religious activities.” He said after the “religious activities” happened, the local authorities came to find him.

6. When asked for further explanation, the applicant said in 2006 he moved to Dak Lak Province and he “joined activities at the church there” but the “local authorities did not allow for those kind of events to happen so they banned those events.” He said that he “didn’t do anything wrong” so he continued to participate in “those events.” He said that “after many times of participating in those events” the local authorities arrested him.

7. When asked to explain what he meant by “those events”, he said:

   In my religion, you know they have these kinds of programs for the youth to participate in, and also you know in the important holidays or events in Christianity they also hold events and they would gather the youth to do the activities together and those kinds of activities are banned, those kinds of events are not welcomed by the authorities there.

8. When asked to specifically explain what he meant when he was describing “those events” he said:

   There would be, like, programs for the youth to participate in, say, at the end of the year or like the holidays, the important dates for our religion, and we would have activities like go out and help those who are in need, like the elderly, the injured, the ill, those without family members, so those kinds of things. A lot of the youth will participate in those kinds of events.

9. The Tribunal put to the applicant that he was not being clear about what he did. The Tribunal put to the applicant that he was speaking about what other people did, and asked the applicant to tell the Tribunal what he did. In response, the applicant said:

   So, the group is very large. I was a member in the group and, you know, if they told me to go here to help, I just follow them.

10. When the Tribunal put to the applicant that it appeared that he was not going to provide any specific examples of what he was talking about, he said:

    Yeah just so, you know, like the youth groups in, like, nowadays in the area or in the village they have youth groups, and we would follow the direction of the pastor, and whenever the pastor told us to go and help those that were in need, then we got the authority from the pastor to carry out those kinds of work.

11. When the Tribunal asked the applicant what kind of work he was referring to, he said:

    You keep asking about the specifics, but the main point is that, you know, like, the authorities, they don’t allow those kinds of events that gather a lot of people. Say, going to the church, that is a gathering, and they don’t allow those kinds of things.

12. The Tribunal put to the applicant that he was saying to the Tribunal that he did work, but he was not being clear about what work he claimed he did. In response, the applicant said:

    Like I said to you earlier, you know, they told us to go help the elderly and the ill and that’s what I did.

13. The Tribunal put to the applicant that he was not directly answering the Tribunal’s question. In response, the applicant said:

    Yeah so, I’m just saying, you know, what it is. They told me to do, you know, some things while I was in the group and that’s what I did.

14. When asked how old he was when he did these things, he said:

    At the time I was about 13, 14…something like that.

15. The Tribunal put to the applicant that he had just told the Tribunal he moved to Dak Lak Province in 2006, which would make him around [Age] years old at the time. In response, the applicant said:

    Yes, but I stayed there for a few years.

16. The Tribunal put to the applicant that he had previously said that the Vietnamese authorities had arrested him. In response he said: “yes, Member.” When asked to explain the arrest incident, the applicant said:

    So basically, I was in the youth groups and I was someone that came from a different area and, you know, I participated in those events that gather a lot of people many times so I was called on by the local authorities to the local office many times, and in those times they threatened me that I should not participate in those kind of events, those events are bad, but I continue my participation in those groups and church. So many times in those events the local authorities just chase us off or would, you know, gather us and take us to the station, and later on they would hurt us there, you know, hit us.

17. When asked if that was all he wished to say about this matter, the applicant said:

    So I think I’ve already made a statement regarding this issue. So I was caught multiple times and they took us to the local office. We were threatened. I was threatened there many times. I was hit many times and then just released. And then, yeah, those times just kept on repeating themselves.

18. When again asked if that was all he wished to say about this matter, the applicant said:

    Yeah so those kind of things happened many, many times. That’s why I left and went to Kon Tum.

19. When asked what religion he was, he said he was a Catholic. He said he was baptised. He said he had done his confirmation. When the Tribunal asked when he did his confirmation, he said:

    What kind of confirmation Sir?

20. When asked what confirmation involved, the applicant described the confirmation letter. However, when asked to describe the confirmation process itself, the applicant said he did not understand. He said there was “no event or anything” to get the letter saying he had done his confirmation.

21. The Tribunal put to the applicant that for a confirmation, there was a process involved and asked the applicant to describe the process. The Tribunal put to the applicant that the confirmation process was more than just getting a letter. In response, he said:

    Yes Member. The thing is I was baptised when I was only a few weeks old – when I was a very small baby. I would not remember because I was just a few weeks old - a baby. My dad took me in to be baptised by the church. The thinking is, later on, if anybody goes anywhere and they need that, like, kind of, confirmation letter, they will contact the area, that church, and he would go through all the records, you know, that would have the birth year, that letter he will wrote to us, that letter says my birth year, my age my parents…

22. When he asked whether he had been to a Catholic Mass before, he said “yes many times Member.” When asked to describe the Mass, he said:

    “Um, what do you need me to describe to you?”

23. The Tribunal further queried the applicant, who responded:

    We would go to church, and because we believe in God we would go to church to pray and that is the most important way to keep our faith.

24. The Tribunal asked the applicant if that was all he had to say about what is involved in a Catholic Mass, to which he responded:

    What do you mean Member?

25. The Tribunal put to the applicant that it was not the Tribunal’s role to answer questions put to him by the Tribunal. The Tribunal put to the applicant that if he could not explain what happened in a Catholic Mass, it was not the Tribunal’s role to step him through the process. He responded:

    You know the Mass, there are many, and they last for like an hour, and the pastor to be up front, to carry out the rituals, and we just follow the rituals from the pastors.

26. When the Tribunal asked him what rituals he was referring to, the applicant said:

    It’s very hard to describe to you if you don’t understand what it involves.

27. The Tribunal put to the applicant that the Tribunal was aware of what a Catholic Mass involved but was waiting on the applicant’s explanation. He responded:

    I just want to clarify with you Member, you know, because the kind of Mass, the pastor will be upfront and they will do, um, you know, the rituals, and we would follow down, so do you want to ask, like, how many segments are there?

28. The Tribunal put to the applicant that the Tribunal would hear anything he wished to say, but that he was not directly answering the Tribunal’s questions. In response, the applicant said nothing.

29. The Tribunal put to the applicant that for someone who had indicated that he had been to a Catholic Mass many times in his life, the Tribunal’s question should not be a hard question to answer, yet the applicant could not provide any specificity about what a Catholic Mass involved. In response, the applicant said:

    Yes, so um basically in the Mass, um, you know, there are many parts of it, and the pastor will be upfront, he would carry out the rituals, um there would be book reading, bible reading, um, there would be singing, and there would be, you know, pastor preaching about, you know, the Bible, and also basically in the Catholic Mass there would be two main parts, the first would be the God teaching, where the pastor would re-enact what God did to his students, and, um, you know, the pastor, they re-enact that part to teach us about it.

30. When asked if that was all he wished to say about that matter, the applicant said “yes.”

31. The Tribunal asked the applicant if there was anything more he wished to say about his claims for protection and why he left Vietnam. In response, he said:

    The main reason was because I participated in many Catholic events, religious events, that were banned, and that was the main reason why I left. Now if I were to go back I would be very scared.

32. The Tribunal asked the applicant if he was harmed in Vietnam, and if so, when this occurred. In response, the applicant said:

    When I moved to Kon Tum, um, I was harmed many times because they didn’t even allow Mass, you know…there.

33. The Tribunal again asked the applicant when he was harmed, and he said:

    Yes, so um, it was around the 2012-2013 period, um, the Christmas of 2012.

34. The Tribunal asked the applicant whether he was harmed at any time other than the Christmas of 2012, and he said:

    Yes that’s right Member. They caught me around the Christmas of 2012.

35. The Tribunal again asked the applicant if he was harmed at any other time, and he said:

    No, so there were two other times before that as well. But that Christmas one was the worst.

36. The Tribunal asked the applicant what happened the two other times and he said:

    It was, like, a few months prior to that. It was around that time that they banned aggressively.

37. When it was put to him that he was claiming that he was harmed at Christmas 2012 as well as a few months prior to Christmas 2012, he responded: “yes Member.”

38. When asked what happened the other time he was harmed, he said:

    What I’m saying is that in the few months prior to the Christmas of 2012,you know, they were banning those kinds of events, so basically every month or two months that would happen.

39. When asked if that was all he wanted to say about that matter he said: “that’s it Member.”

40. The Tribunal asked the applicant what happened to him in the instances he claimed he was harmed. In response, he said:

    So, um, in those instances, they would catch me. They would get me there. They would hit me. And then ban me.

41. When asked what he meant when he said “they” caught him, he said:

    So they would come to those events. They saw the gathering, and they would catch all of us and take all of us to the police station.

42. When asked what he meant when he said “all of us”, he stated:

    They would get there and, you know, whoever could run would run, and whoever couldn’t run, they would catch.

43. When the Tribunal asked the applicant if he was saying the Vietnamese police would come and chase children around a church, catching them, he said:

    You know, so in Vietnam, you know, if the police were to, you know, suddenly rush in, you know, we were not too small, um, outside and there would be many times that I was caught, so they would notice me more than others, so it would be harder for me to get away than others.

44. When the Tribunal asked the applicant if he was saying he was a slow runner, he said:

    I wouldn’t say that I’m a slow runner but, you know like, they notice me more because I was caught more, so it was harder for me to get away than others.

45. When the Tribunal asked the applicant if the police put him in a car or a van with the other kids, he said:

    Yeah, so um they put us in a van, and then they bussed us to the police station.

46. When asked if the police got all the kids into the police station, he said:

    Not just kids, there were many adults.

47. When asked how many people he was talking about, he said:

    Um, basically I don’t know the number for sure because there would be many vans that would arrive and to get all the people they could get, and we would be taken to the, I don’t know, different locations maybe, but taken to the stations.

48. When asked if he was saying they were taken to different locations, he said:

    Yes, I can’t be sure, I can only say for myself, I was taken to the station, I can’t vouch for other vans, and who, you know like, the other places that they were taken to.

49. When asked if he was saying the Vietnamese police took him to the police station, and told him not to do any more Catholic activities, and then beat him up, he said:

    Yes, so they would give me a beating first, and then tell me I am banned from doing all the Catholic events and everything, it’s just that I’ve been arrested, I’ve been taken there, a couple of times so, you know, they pay attention to me more.

50. When asked if he was saying that this type of instance happened to him three times in 2012, he said:

    Um, yes in 2012, and also in 2013, it was Easter time.

51. When it was put to him that he was indicating that his first apprehension and beating did not stop him from his activities because he was saying he kept doing the activities he was “banned” from doing, he said:

    Yes, that right, you know, there are still main holidays and festivals, you know, and I didn’t do anything wrong, you know, and they banned me from going to church, but we don’t do anything wrong at church.

52. When it was put to him that he was indicating that, because of all of this, he decided to leave Vietnam, he said:

    Yes, so um it was around Easter 2013, and they were, you know, doing all the surveillance and doing all the banning and the sting operations very aggressively, um and I was basically in hiding, I didn’t want to get caught so, you know, I up and went.

53. The Tribunal asked him how he just “up and went”, and asked if he made arrangements and paid someone some money. He said:

    Not really, so at the time, you know, I went with, like a truck, and that truck went to Da Nang and just went.

54. When asked if there were any other claims he wished to make, or whether he wanted to provide any other reasons for leaving Vietnam, the applicant said:

    No, so those were the main reasons why I left Vietnam.

55. When asked if he feared going back to Vietnam, he said “yes Member.” When asked why he feared going back to Vietnam, he said:

    Yeah, so that was the main reason, and also because I left Vietnam by boat, and there have been many cases of men who were returned to Vietnam who were arrested.

56. When again asked why he feared going back to Vietnam, he said:

    So I’m very scared because the police in Vietnam are not like the police here. Everybody is very scared of getting arrested because, if you are arrested, you don’t know what will happen. You don’t know where you will end up. I am scared of dying.

57. The applicant said he was afraid of the Vietnamese police and “the authorities” from the areas that he lived in previously. When asked if he was referring to anyone in particular, he said:

    So the people in the places that I lived, the people who caught me and they know about me. The police and the people who work under the local authorities who get the order to go and catch people.

58. When asked who the “local authorities” were that he was referring to, he said:

    So, um, you know, it like, depends on each area, so maybe it would be like the President of the Area or the Mayor or the head of the province or the suburb.

59. However, the applicant then said he did not see the authorities and he only “met with the police.” However, he indicated that he did not know the specific identities of any particular people that he claimed to fear in Vietnam.

60. The Tribunal put to the applicant that he had indicated to the Tribunal that the Vietnamese authorities and the Vietnamese police are really interested in him for participating in church activities in Vietnam when he was young. In response, he said that the Vietnamese authorities would “take notice” of those people “who left” and that they would “take notice” of him if he returned to Vietnam.

61. After the break, the Tribunal spoke to the applicant about the two SHEV applications he had made, and noted that they were made several years apart –in 2020 and previously in 2016.

62. When asked if all the information in the 2016 and the 2020 SHEV applications is correct, he said the information in both of the applications was true and correct.

63. When it was put to him that what he had claimed in 2016 was different to what he had claimed in the 2020 application, the applicant said:

    No, the 2020 application just has more information.

64. When asked what the additional information was, the applicant said it was the “police information” in Vietnam and also the “few times they send notice to me to come to the station.”

65. When asked whether he thought that the claims he made in 2016 were essentially the same as the claims he made in 2020, he said “yes.” The applicant again confirmed that the claims he made in the two separate applications were essentially the same.

66. The Tribunal put to the applicant that it may have credibility concerns about his protection claims.

67. The Tribunal put to the applicant that he had provided to the Tribunal a copy of both the delegate’s decision from his 2016 application, as well as the delegate’s decision from his 2020 application.

68. The Tribunal put to the applicant that he had claimed to the Tribunal that he had been assaulted in Christmas 2012 and two previous times in 2012, and then arrested in 2013. The Tribunal put to the applicant that he had claimed in the hearing that the Vietnamese police had detained him and others when they were doing church activities, and were taken to a police station, assaulted him and then released him. The Tribunal put to the applicant that there appeared to be differences between the account of what he had written in his 2016 SHEV application compared to his 2020 SHEV application.

1. The Tribunal spoke to the applicant about his 2016 SHEV application. The Tribunal put to the applicant that in his 2016 SHEV application he, in summary, had claimed that he had initially been harmed three times – once in 2007, once in 2008 and the other in 2009 – and then he went on to say there was a further time he was harmed in 2012. The Tribunal put to the applicant that this was different to what he had told the Tribunal at the hearing.

2. The Tribunal spoke to the applicant about his 2020 SHEV application. The Tribunal put to the applicant that in the 2020 SHEV application he made no specific mention of the alleged assaults he was subjected to as he had described in the 2016 SHEV application or at the hearing.

3. The applicant’s 2020 SHEV application is as follows:

   Provide reasons why this applicant left that country or those countries:

   When I was a young Student back in the country, the corrupted official from Local made me think about the Regime, and fully discovered that this is a Communist Regime country, with only 1 and The only Communist Party running and controlled. No other party allow to join nor run, the people in the country not have choice of choosing. Just obey the Communist laws and quite, just keep quietly working and livings, do not have any Democratic / Human Rights at all, and even No speeches about the Regime nor any opinions to promote any Human Rights / Democratic. As The Authorities said that the political issues and not to against nor be Arrested for Anti Government Policies. Many occasions myself and friends who joining together raising the voice for " freedom of speeches, Human Rights for Local and Human Rights for the People of whole country, but immediate put on hold and taken away to the Authorities Station for questions and hold up. My personal business for livings also effected heavily time to time because of this. We'd been heavily threaten and fines for this issues. Also Catholic Religious of family weekly still have their eyes around as they're seeing the family spread out political opinions to other people. Myself and friends have always fought for the "HUMAN RIGHTS And DEMOCRACY Act", should have in the country. They called "Anti-State Government Propaganda. The Parents scary and from time to time become mental because of the country issue. I then seeking the travel abroad firstly travel around and Do learning the Democratic / Human Rights of the Western country such as Australia, and would spread out back to friends / people who still back in the Country, so they can fight peace fully, but surely deal by military style by the Government. The Locals taken this opportunity to heavily financially distortion, this is how they lives otherwise could not survive with the monthly salary, corrupted many levels from the Local up to the Federals. Then I seek to travel abroad to study for future career, also learning the Democratic / Human Rights / Freedom of speech also.

   Did this applicant experience harm in that country or those countries?

   Yes

   Give details including:

   • the type of harm this applicant experienced

   • the person/people responsible for the harm

   • why they harmed this applicant.

   As reported above, been taken to the Station and banned to class school, family been heavily financially distortion from corrupted officials. Even when we were operate as family business, problem began on political differences issues and financial demanded. If continue the actions will be Jails, no exceptions what so ever.

   Did this applicant seek help within the country or those countries after the harm?

   No

   Give details of why this applicant did not try to seek help.

   Within the Communist Regime countries, like Vietnam, China, Lao or North Korea, there's no hope nor chances to seek help around the country, as its running the same laws across uniformly. And everywhere facing the Corrupted officials.

   Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

   No

   Give details for why this applicant did not try to move to another part of the country or those countries.

   As mentioned above, there nothing different nor getting any better, because still within the Communist Regime country, it's not Democratic / Human Rights at all. Nor any Free Speeches. This is against the current Democratic of the World here now.

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   As I escaped from the country and totally opposing their regime, they treated as a Traitor. Would be arrested. As a well mature person and Love the Democratic / Human Rights, always fighting for this target issues, strongly after and supports the Vietnamese opposition Party here, Head office in Sydney "The Viet Tan Party", Demand for Change of current Vietnamese Government, promote the model of Democratic / Human Rights / Freedom of speech. many occasions raising opinions on [Social media] for the above issues, The media [Social media], which is now strictly monitor and controlled by the Authorities, as this fighting peace fully alone could end up 4 years in jails (they said: Anti-State Government Propaganda), causing the In-Stability in the country. Returning would surely face the Authorities for Political issues arrested. To stop further any contact and spread out the Democratic / Human Rights from Overseas country such as Australia, USA, UK, NZ..etc. The question is: " Is there any Communist countries in the world have Human Rights, Democratic nor Freedom of speech ?" The answer we have already known. Family then could become a target for the Local Authority to threaten, impose fines financially. Parents would become further scary, mental issues disorder increasing. Would not allow to live peace fully in the town, as would spread out further members supporting the Democratic / Human Right model from the Western country now bring back. Returning can be posed a very significant threat to their current Communist Regime.

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   Yes

   Give details including:

   • the type of harm or mistreatment this applicant is likely to experience

   • the person/people who would be responsible for the harm or mistreatment

   • why they would harm or mistreat this applicant.

   Hardly live in peace with them , highly arrested case. Absolutely Mistreated, Very much same issues would likely happen to the above issue mentioned. With the Communist country, there is No tolerant to any oppose political matter. Strongly mistreated or ignored. Family would then become target for the Local Officials to all of issues surely happens. There will be No work rights, nor not easy to get around town nor other places, as a member opposing their regime.

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   No

   Give details about why this applicant thinks the authorities could not, or would not, protect them.

   Not at all, The Communist country would never offer any protection to any citizens who opposing the Regime politically, but to arrest immediate, for the safe and Stability in the country. As a member always fighting for Democratic / Human Rights / Freedom of speech, opposing the current Communist Regime.

   Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

   No

   Give details about why this applicant is unable to relocate.

   Other thing as the family religious of Catholic, and often opposing their policies, the Communist Authorities have an eye on Religion and controlled indirectly, Not Freedom of Religious at all. The Communist Government would Not allow for any opposing citizens to get around and live other places, as it would spread further members would join in and causing more problems for the Authorities. Even that the Communist Authorities have an eye on Religion and controlled indirectly. No Accommodations. No Financial supports.

4. The Tribunal put to the applicant that given there appeared to be significant inconsistencies in the information about the applicant’s particular claims that he had been assaulted by the Vietnamese police on a number of occasions, the Tribunal may find that his claims were not credible in this respect. In response, he said:

   The thing with the first application is that, you know, I made the application when I was still in the refugee camp, um, there was no legal representative, I was just asking some, you know, friends in there who know a bit more English than I do and that time, you know, I really don’t understand English, I don’t know much about English, there was no interpreter service there, um, I was asking for help from friends that were in there together so, yeah.

5. The Tribunal put to the applicant that it was in possession of the applicant’s 2016 SHEV application - the same application that had been signed by the applicant’s then representative, [Mr A], from [Organisation 1]. The Tribunal put to the applicant that it was also in possession of a document showing that the applicant was provided advice from a registered migration agent, [Mr A], in late 2016. The Tribunal put to the applicant that the Tribunal may find that he was not giving credible information to the Tribunal about his 2016 SHEV application because it was clear that he had assistance from [Mr A], a person who claimed to be a registered migration agent, in 2016, but that he had told the Tribunal he did not get help. The applicant maintained that he did not get help from a registered migration agent in 2016. When it was put to the applicant that his signature was on the document, he said he was having trouble understanding how his signature was on the document. When the Tribunal put to him that he had received help from [Organisation 1] as part of his 2016 SHEV application, he said he did get advice. He then said he wanted to move on.

6. The Tribunal spoke to the applicant about what he had written in his 2016 SHEV application. The Tribunal put to the applicant that in the hearing he never said anything about his family swapping any land to build a church. In response, he said:

   Yeah so the reason why I raised that with you is because this is something that happened when I was very small. I had no recollection. I heard it from my father. I did not raise it because it did not, you know, directly happen to me.

7. The Tribunal put to the applicant that in the hearing he never said anything about moving to another location in 2000, or being “targeted, constantly maltreated, mentally and physically tortured”, which, again, was another claim of harm that the applicant made no reference to in the hearing. In response, he said:

   Yes so all this happened when I was very young, and I just followed my dad around. So, you know, I just mentioned to you what happened to me directly.

8. The Tribunal queried the applicant about the conflicting claims about when his mother died. In respect, the applicant said:

   Yeah so that’s what my father told me.

9. The Tribunal spoke to the applicant about his claims where he stated:

   In 2006, I moved to Dak Lak for my own safety. But the fear, sufferings and pending persecutions were there: Local authorities summoned me up all the time, for torturing, terrorizing and beating me and confiscated the money I saved (Tribunal emphasis).

10. The Tribunal put to the applicant that this again was also inconsistent with his claims of harm in the hearing. In response, he said:

    I still mentioned, you know, the same thing. It’s just that it was lacking some information. So the police did summon me many times. But you know when I say orally I couldn’t say it as detailed as well as when I was, you know, writing it.

11. The Tribunal put to the applicant that he was now telling the Tribunal that he wrote his 2016 claims. He said:

    So I wrote down the information and, you know, other persons helped me with the translation.

12. The Tribunal spoke to the applicant about his claims that stated:

    the only reason was I participated in the Church's activities: they forbid me to go to Church, or take part in the religious activities. All the days and nights, I was living under fear, torture and terror (Tribunal emphasis). The only peace and happiness that I could find was the time in the Church where I could give all my sufferings to God and talk to my mother (Tribunal emphasis). Again in 2010, I had to move to [Location 3], Kon Tum; but there the same thing happened to me! (Tribunal emphasis). The level of maltreatment and tortures was even worse (Tribunal emphasis). Because of taking part in the Easter celebrations in 2013, I had to escape the arrest and persecution from the government (Tribunal emphasis).

100.   The Tribunal put to the applicant potential concerns about the inconsistencies between what he had said in the hearing and what he had written in his claims. The Tribunal put to him that the Tribunal may find that he had provided inconsistent information on this point that was not credible. In response, he said:

The thing that I find that when its an oral interview and a written statement – I find that the main points have been consistent and you are picking the different details only. I think the main point is the same. If you are asking for an exact replica of written and oral ones it would be very hard to achieve.

101.   When asked if he thought the Tribunal was being too picky, he said:

No I’m not saying that Sir. I’m just saying that you know like when I speak when its an interview orally and also there will be some minor discrepancies comparing to the written statement.

102.   The Tribunal put to the applicant that he had previously admitted that he was never involved in any political protests in Vietnam. He said:

No, just religion. Nothing political.

103.   The Tribunal then spoke to the applicant about the “supplementary statement” he provided with the 2016 SHEV application. When asked if he understood what the Tribunal had told him, he said “yes Member.” The Tribunal put to the applicant that in the “supplementary statement” he stated that he had amended his application, and in that further statement he had, with the assistance of [Mr A], gone into great detail about his claims.

104.   The Tribunal put to the applicant that in the hearing he appeared to have provided vague information surrounding his claims of harm in Vietnam but that the written claims were very specific about the harm he experienced in Vietnam. The Tribunal put to the applicant that in the additional statement he was very specific on the details and the timeframes, so the Tribunal put to the applicant that the Tribunal was not being “picky.” He said in response:

I’m not saying that you are being picky Member. I’m just saying that between the oral and written statements there are small discrepancies. That’s all I’m saying.

105.   The Tribunal then spoke to the applicant about the second SHEV application he provided in 2020, which stated:

When I was a young Student (Tribunal emphasis) back in the country, the corrupted official from Local made me think about the Regime, and fully discovered that this is a Communist Regime country (Tribunal emphasis), with only 1 and The only Communist Party running and controlled. No other party allow to join nor run, the people in the country not have choice of choosing. Just obey the Communist laws and quite, just keep quietly working and livings, do not have any Democratic / Human Rights at all (Tribunal emphasis), and even No speeches about the Regime (Tribunal emphasis) nor any opinions to promote any Human Rights / Democratic (Tribunal emphasis). As The Authorities said that the political issues and not to against nor be Arrested for Anti Government Policies. Many occasions (Tribunal emphasis) myself and friends who joining together raising the voice for "freedom of speeches, Human Rights for Local and Human Rights for the People of whole country (Tribunal emphasis), but immediate put on hold and taken away to the Authorities Station for questions and hold up. My personal business for livings also effected heavily (Tribunal emphasis) time to time because of this. We'd been heavily threaten and fines (Tribunal emphasis) for this issues. Also Catholic Religious of family weekly still have their eyes around as they're seeing the family spread out political opinions to other people. Myself and friends (Tribunal emphasis) have always fought for the "HUMAN RIGHTS And DEMOCRACY Act" (Tribunal emphasis) should have in the country. They called "Anti-State Government Propaganda. The Parents scary and from time to time become mental because of the country issue. I then seeking the travel abroad firstly travel around and Do learning the Democratic / Human Rights of the Western country such as Australia (Tribunal emphasis), and would spread out back to friends / people who still back in the Country, so they can fight peace fully, but surely deal by military style by the Government. The Locals taken this opportunity to heavily financially distortion, this is how they lives otherwise could not survive with the monthly salary, corrupted many levels from the Local up to the Federals (Tribunal emphasis). Then I seek to travel abroad to study for future career, also learning the Democratic / Human Rights / Freedom of speech also (Tribunal emphasis).

……

As I escaped from the country and totally opposing their regime, they treated as a Traitor. Would be arrested. As a well mature person and Love the Democratic / Human Rights, always fighting for this target issues, strongly after and supports the Vietnamese opposition Party here, Head office in Sydney "The Viet Tan Party", Demand for Change of current Vietnamese Government, promote the model of Democratic / Human Rights / Freedom of speech (Tribunal emphasis). many occasions raising opinions on [Social media] for the above issues (Tribunal emphasis), The media [Social media], which is now strictly monitor and controlled by the Authorities, as this fighting peace fully alone could end up 4 years in jails (they said: Anti-State Government Propaganda), causing the In-Stability in the country. Returning would surely face the Authorities for Political issues arrested. To stop further any contact and spread out the Democratic / Human Rights from Overseas country such as Australia, USA, UK, NZ..etc. The question is: " Is there any Communist countries in the world have Human Rights, Democratic nor Freedom of speech ?" The answer we have already known. Family then could become a target for the Local Authority to threaten, impose fines financially. Parents would become further scary, mental issues disorder increasing (Tribunal emphasis). Would not allow to live peace fully in the town, as would spread out further members supporting the Democratic / Human Right model from the Western country now bring back. Returning can be posed a very significant threat to their current Communist Regime.

106.   The Tribunal put to the applicant that he had previously admitted to the delegate that he did not have a [Social media] account, and he admitted that he did not engage in political activities in Vietnam. The Tribunal put to the applicant that the Tribunal may find that none of his 2020 claims were credible. In response, the applicant said:

Yeah so basically what you just read out was the first time I came to know the problem of what you’ve just read out because, yeah, the application I made in 2020 was made with the help of kind of a solicitor, group of solicitors.

107.   When asked what the solicitor’s name was, he said:

So the thing is, you know, that group they are from, like, a group of people who also immigrate here, and they have been helping out with a lot of applications like this, so, yeah, it’s not like the information comes directly from me.

108.   The Tribunal put to the applicant that on the 2020 application form it indicated that he did not receive assistance in completing the form. He said:

So, I think that information was put in my application by that group, and I’m not too sure if that group are registered solicitors or not – but they’ve helped many people.

109.   When asked what the solicitor’s name and address was, he said he only contacted them by phone. The applicant then admitted that everything that was said in the 2020 SHEV application was completely false. The applicant said it was the first time he was aware of what was said in the 2020 SHEV application. The Tribunal put to the applicant that in the delegate’s decision, the delegate indicated that she interviewed the applicant in respect to the claims made in the 2020 application. He said:

So, the thing is, because I got the help from the group, all the communications from the Department went to them, and I did not have any direct contact with department until later on. I did not hire them anymore. Then I made some direct contact.

110.   The Tribunal reminded the applicant that for the 2020 SHEV application he had an interview with the delegate. He said:

Yes, once. But I think that was before I made the application with the form that you just read out.

111.   The Tribunal then spoke with the applicant about the DFAT Country Information Report for Vietnam dated 11 January 2022 (hereafter referred to as the DFAT report) in respect to conditions for returnees. The Tribunal put to the applicant that based on the information in the DFAT report, the Tribunal may find that in his circumstances, the applicant would not face either a real chance of serious harm or a real risk of significant harm should he return to Vietnam in the foreseeable future. In response, he said:

It’s been a long time since I came here and I didn’t read any information about, you know, that kind of thing, so from personal experience I know of a few people who went back to Vietnam and got into troubles – you know.

112.   The Tribunal then spoke with the applicant about the DFAT report in respect to conditions for Catholics in Vietnam and put to the applicant that the Tribunal may find that in his circumstances, the applicant would not face either a real chance of serious harm or a real risk of significant harm should he return to Vietnam in the foreseeable future. In response, he said:

To be honest, what you read on paper, that’s just, but you can’t say for sure what is going to happen.

113.   The Tribunal put to the applicant that the Tribunal may find that the applicant’s protection claims are not credible and that in his circumstances, he would not face either a real chance of serious harm or a real risk of significant harm should he return to Vietnam in the foreseeable future. In response, he said:

Yeah so, I really don’t know what to say. I’m fearful and scared.

114.   When asked what he would do if he returned to Vietnam, he said he did not know.

115.   When asked if there was anything else he wanted to say, the applicant said:

I’ve said what I wanted to say. The information that I put in in my 2016 application was correct because that was the one I put in but the stuff in the 2020 application, I really have no idea what it is. I have no involvement in political matters. I also find myself in an incredible situation – I don’t find it credible at all. I don’t know why they put that in either.

116.   The applicant’s representative then said he only wished to make an oral submission and that there would not be any post-hearing written submissions. He said it was very difficult to be able to submit enough evidence. He said the applicant was young when the circumstances happened, and he has a vague memory. He said that the applicant had no time to collect evidence before he left Vietnam. He said the applicant had been away from Vietnam for a long time and it was hard for him to collect evidence. He said when the applicant applied for the visa in 2016, he did not know English. He said there was no way to check what the agent said in the form, so he signed the form.

Analysis and findings

117.   The Tribunal has carefully considered the applicant’s claims and the evidence before the Tribunal.

118.   The Tribunal holds significant concerns about the credibility of the applicant's claims, as well as the overall credibility of the applicant.

119.   The first key issue, however, is whether or not the Tribunal is satisfied the applicant is actually a Catholic. As indicated above, the applicant's evidence in regard to his claim of being a Catholic was vague and not overly clear. However, the Tribunal is not expecting perfect answers, or detailed accurate explanations from the applicant as if he was a subject matter expert on Catholicism. The Tribunal accepts there is a letter of confirmation in respect to the applicant. The Tribunal accepts that the applicant gave, at best, a vague description of what occurs in a Catholic Mass. The Tribunal is not satisfied that the applicant has a deep knowledge of Catholicism or even necessarily what happens in a Catholic Mass ceremony or a confirmation ceremony with any specificity. However, the Tribunal is prepared to accept that the applicant’s religion is Catholic, albeit in a minimalist way.

120.   The second key issue is whether the instances of harm occurred to the applicant as he had claimed to the Tribunal. The Tribunal has serious concerns about the applicant's credibility. There are certain key events that the applicant asserted happened to him that the Tribunal seriously doubts ever occurring.

121.   In the hearing, the Tribunal asked the applicant if he was harmed in Vietnam and, if so, when he was harmed in Vietnam. After some discussion, the applicant asserted that he was harmed at Christmas 2012 as well two other times in the months prior to Christmas 2012 (Tribunal emphasis).

122.   The Tribunal asked the applicant to give further detail about the instances in which he claimed he had been harmed, and finds that the applicant’s explanation was vague, evasive and lacking in detail. The applicant generally indicated that the Vietnamese authorities would come to Catholic gatherings, where he was present, catch him and others, and take them all to the police station. It is important to note the time frame the applicant is referring to (i.e., around 2012) means that the applicant was a child at the time these alleged events happened. The applicant was born in [Year], and if the events occurred in around 2012 that would make him around [Age] years old at the time they allegedly occurred. The applicant indicated that the Vietnamese police, on more than one occasion, came to the church or the Catholic events in which he was participating and would chase him and other children, as well as adults, around, before apprehending them and taking them to the police station. In his evidence, the applicant indicated that these instances involved the arrest and transportation of what appeared to be significant numbers of people to police stations. In his evidence, he indicated that the Vietnamese police took him and others to the police station, told him not to do any more Catholic activities and then assaulted him. The applicant then asserted that because of these events, despite still being so young, he decided to leave Vietnam because he feared that the Vietnamese authorities would harm him and continue to harm him on the basis of his Catholic faith and his decision to continue his involvement in Catholic activities in Vietnam.

123.   The Tribunal accepts, as the applicant indicated in the hearing, that he did not know the specific identities of any particular persons that he claimed to fear in Vietnam (Tribunal emphasis).

124.   When considering the applicant’s evidence at the hearing in respect to his written claims that he previously made in his SHEV applications, the Tribunal has serious concerns about the credibility of the applicant’s claims that he was arrested and harmed by the Vietnamese authorities for being involved in Catholic events or activities when he was in Vietnam.

125.   As noted in his 2016 application, the applicant first indicated that he had moved with his father to Dak Lak in 2006 (when he was around [Age] years old) and that while he was there the Vietnamese authorities “summoned” him up “all the time” and were “torturing, terrorising and beating” him and “confiscating the money” he saved. In the hearing, when initially asked to speak about when he was harmed in Vietnam, the applicant made no mention of this alleged behaviour towards him by the Vietnamese authorities in 2006.

126.   Again, as noted in his 2016 application, the applicant indicated that he was further mistreated by the Vietnamese authorities in 2010 (when he was around [Age] years old). Again, in the hearing, when initially asked to speak about when he was harmed in Vietnam, the applicant made no mention of this alleged behaviour towards him by the Vietnamese authorities in 2010.

127.   The Tribunal notes that the applicant did mention an incident where he allegedly took part in Easter celebrations in 2013, and he indicated that in respect to the alleged 2013 incident, he had to escape the arrest and persecution by the Vietnamese authorities.

128.   The Tribunal notes that in another part of his 2016 application, the applicant specifically claims that he was harmed three times and also experienced “economic harm” one time. Specifically, the applicant claimed that the first time he was harmed was when he got involved in a religious activity in Christmas 2007. He specifically claimed that at that time, he was arrested, tortured and beaten. The applicant then specifically claimed that the second time he was harmed was in 2008 when he took part in a Catholic youth group, and then the Vietnamese police called him up tortured him and beat him. He claimed the third time he was harmed was “after the celebration of Christmas 2009” when the Vietnamese police called him up “3 times” for “mental tortures” and the last time he was “arrested overnight and brutally beaten” and they “confiscated all of the money” he saved.

129.   The applicant then expressly claimed that the other time he was harmed was Christmas 2012 when he attended a prayer service and was then arrested by the Vietnamese police and “savagely beaten to hospitalising.” He claimed that he had physical scars on his [Body parts] from this assault and that he was emotionally affected by this incident.

130.   The Tribunal has considered the applicant's claims in his 2016 application and the expanded claims in the supplementary statement. However, in the supplementary statement, the applicant continued to maintain that he was harmed in 2007, 2008, 2009 and 2012. The supplementary statement goes into considerable detail about these claimed instances of harm. However, in the hearing, the applicant made no such reference to claims of what appeared to be significant instances of alleged harm in 2007, 2008 and 2009. As discussed in the hearing, the Tribunal put concerns to the applicant that there appeared to be significant inconsistencies in the information about the applicant’s particular claims that he had been assaulted by the Vietnamese police on a number of occasions. The Tribunal has considered the applicant’s explanation that when he made his application, he was in detention and there was no legal representative to help him. The Tribunal has considered the applicant’s explanation that it was friends of his who actually helped him to do the application because he didn't understand English.

131.   However, the Tribunal is not persuaded by the applicant’s explanation in this respect because, as discussed with him in the hearing, the applicant’s then representative from [Organisation 1] did ultimately assist him in the preparation of his 2016 SHEV application. In the hearing, the applicant ultimately admitted that he actually did get advice in respect to his 2016 application.

132.   In consideration of these issues, the Tribunal is not satisfied that the applicant has given credible evidence in respect to any of his claims of harm. The Tribunal does not accept that the applicant was harmed in 2006, 2007, 2008, 2009, 2010 or 2012 by the Vietnamese authorities or anybody else when he was in Vietnam. The Tribunal does not accept that the applicant was ever arrested by the Vietnamese authorities in connection with any Catholic activities or ceremonies at any time when he was in Vietnam, including in 2013. The Tribunal accepts that the applicant may have scarring to his [Body parts] but does not accept that this was caused by any harm at the hands of the Vietnamese authorities. The Tribunal does not accept that the applicant gave credible information in respect to his family swapping any land to build a church. The Tribunal does not accept the applicant’s claim that his family swapped land to build a church, or that he suffered any financial detriment or harm (or “economic harm”) at the hands of the Vietnamese authorities. The Tribunal accepts that the applicant may have moved around Vietnam but does not accept that he moved around Vietnam to get away from any mistreatment by the Vietnamese authorities or anybody else in Vietnam.

133.   The Tribunal does not accept that the Vietnamese authorities ever tortured the applicant, terrorised the applicant, beat the applicant or ever confiscated any money from the applicant. The Tribunal does not accept that the applicant was ever forbidden to go to church or participate in any religious activities when he was in Vietnam.

134.   The Tribunal has considered the applicant’s assertion during the hearing that it was trying to pick on different details, and that it was asking for an exact replica of written and oral claims. The Tribunal rejects this assertion entirely. Any reasonable consideration of the applicant's claims would show that there were very significant omissions and inconsistencies in regard to the information and evidence that the applicant gave in the hearing compared to what he has previously provided in his written applications. The Tribunal finds that it is a significant omission on the applicant’s part that he did not refer to any of the alleged instances of harm that he claimed he was subjected to, especially the claimed incidents in 2007, 2008 and 2009. It is particularly significant that when asked in the hearing about alleged harm to him when he was in Vietnam, the applicant was clear with the Tribunal that he had only been harmed in an incident during Christmas 2012, and two other times a few months prior to Christmas 2012, and then an incident in 2013 which caused him to go “in hiding” and then leave Vietnam. The Tribunal’s concerns about the significant inconsistencies in the applicant’s evidence lend support to its concerns about the applicant's lack of credibility.

135.   In respect to any potential claim that the applicant has been persecuted in Vietnam on political grounds, the Tribunal has considered this issue. The Tribunal accepts, as the applicant admitted in the hearing, that he was never involved in any political protests when he was in Vietnam, and that he was not asserting any claims that he was harmed or would be harmed if he returned to Vietnam on the basis of any political grounds.

136.   This brings the Tribunal to the 2020 SHEV application. As noted above, the Tribunal discussed with the applicant what was written in this 2020 application. The claims made in the 2020 application are significantly different from what the applicant had previously claimed in his 2016 application. In an extraordinary admission from the applicant, he indicated that the information in the 2020 application was not correct. The applicant further indicated that he had no idea what had been written in the 2020 application. He himself admitted that the information in the 2020 application was not credible. In its consideration of the 2020 application, the Tribunal does not accept that any of the claims made in the 2020 application are credible. The Tribunal does not accept that the applicant was ever involved in any political activities at all when he was in Vietnam. The Tribunal does not accept that the applicant was ever arrested or harmed by the Vietnamese authorities in respect to any anti-government sentiments or activities looking for “freedom of speech is, human rights for local and human rights for the people of whole country.” The Tribunal does not accept that the applicant’s “personal business” was ever affected adversely by the Vietnamese authorities. The Tribunal does not accept that the applicant was ever threatened or fined by the Vietnamese authorities for any issues including any alleged political activities when he was in Vietnam. The Tribunal does not accept the applicant's written claim that he had always fought for “human rights and democracy act.” The Tribunal does not accept that the applicant has been involved in any political activities against the Vietnamese government since he has been in Australia. The Tribunal does not accept that the applicant was ever involved in the Viet Tan party or made any demand for change of the Vietnamese government or involved in any activities concerning the promotion of democratic rights or human rights or freedom of speech in Vietnam. The Tribunal does not accept that the applicant ever raised any such anti-Vietnamese government political opinions on [Social media]. As the applicant himself admitted, he did not have a [Social media] account and he did not engage in any political activities when he was in Vietnam. In summary, the Tribunal finds that all of the claims made in his 2020 application are not credible.

137.   In considering the totality of the evidence, and the applicant’s claims both individually and cumulatively, the Tribunal does not accept that the applicant has given credible evidence in respect to his protection claims that he was harmed when he was in Vietnam.

138.   The Tribunal has, however, considered the applicant’s chance or risk of harm on the basis that he is a Catholic should he return to Vietnam in the foreseeable future. The Tribunal has considered the DFAT report, which states:

3.16 The Government recognises 38 religious organisations linked to 16 religious traditions, including Buddhism, Islam and Catholicism (Tribunal emphasis).

…

Catholics

3.22 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.

3.23 The Catholic Church is, by definition, united and can deal with the Government at a national level across Vietnam. Provincial authorities might also have relationships at the diocesan level; sometimes local relationships are better than the national level relationship. In general, relationships between the Government and the Church are cordial. Individual parishes need to be registered.

3.24 Most Catholics worship in churches as part of parishes. Some communities, particularly outside of cities, worship in homes of believers. These activities may be limited by authorities in some cases, but this differs from place to place. In general, Catholics in cities worship freely in churches.

3.25 Some Catholic communities are growing in size with evangelism or welfare efforts. This can occur especially where the local Catholic communities have good relationships with the Government. Some sources report that Catholic missionaries and officials have had difficulty reaching more remote parts of the country in recent years, which might be related to COVID‑19 restrictions. Written materials, such as newsletters, websites and social media materials exist, but their maintenance, distribution and promotion do not appear to be a priority for Catholic leaders.

3.26 There have been Catholic political movements that attract negative attention from authorities. The distinction between faith and politics can be difficult to draw. Examples include where Catholics are involved in political, human rights or environmental movements. For example, priests that are involved in those movements may be restricted from public ministry or given a far-away parish assignment. Participation in non-religious activities differs from diocese to diocese and parish to parish.

3.27 The ‘Red Flag Association’, a militant pro-Government movement allegedly under the direction of local governments, was reported to have disbanded in 2018. Red Flag Association activity included protests outside Catholic churches. In-country sources told DFAT that these protests have not occurred in the last two years and that such activity is now more likely to be online.

3.28 Land disputes have been reported, including the seizure of Catholic land and buildings. A particularly prominent example occurred in 2019 when a number of homes and a Catholic church were demolished and the land sold. Appropriated land might be sold to the private sector for development. Conversely, much of the land that was seized from the Church in the aftermath of the Vietnam War has been returned over decades. That process continues, including during the COVID-19 pandemic, reportedly in return for cooperation of the Church with authorities during the pandemic.

3.29 Church officials do not have official relationships with the Catholic Church overseas (except perhaps the Vatican), but in-country sources told DFAT that individual Catholics or communities have relationships with the diaspora overseas, including in Australia, and these relationships are generally unhindered.

3.30 In-country sources told DFAT Catholics generally do not experience societal discrimination (Tribunal emphasis). Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination (Tribunal emphasis).

3.31 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment (Tribunal emphasis). In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation (Tribunal emphasis). Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.

139.   In consideration of the country information above, the Tribunal is not satisfied that the applicant will face either a real chance of serious harm or a real risk of significant harm should he return to Vietnam in the foreseeable future on the basis of him being a Catholic.

140.   The Tribunal has also considered the issue of the conditions for returnees to Vietnam. The information in the DFAT report states:

Conditions for returnees

5.29 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.

5.30 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 (Tribunal emphasis).

5.31 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 (Tribunal emphasis).

5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.

5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.

5.34 Being a failed asylum seeker is not generally stigmatised (Tribunal emphasis). 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 (Tribunal emphasis).

5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals (Tribunal emphasis). 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 (Tribunal emphasis). 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.

141.   The Tribunal accepts that the applicant may, at most, receive an administrative fine on his return to Vietnam. The Tribunal accepts that the applicant is unlikely to be stigmatised on the basis of being a failed asylum seeker should he return to Vietnam in the foreseeable future. The Tribunal accepts that the applicant is likely to seen by the Vietnamese authorities as a victim and not as a criminal.

142.   In considering the totality of the claims and evidence, the Tribunal is not satisfied that the applicant would face either a real chance of serious harm or a real risk of significant harm, for any reason, should he return to Vietnam in the foreseeable future.

Second visa application: 2100873

143.   As discussed in the decision document dated 6 January 2021 given to the applicant, he arrived in Australia by sea in the vicinity of the Territory of Ashmore and Cartier Islands in April 2013.

144.   In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Temporary Protection visa or Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

145.   In this matter, the applicant was subsequently granted a Temporary Safe Haven (Subclass 449 -Humanitarian Stay (Temporary)) visa on 3 March 2016. At the time, this was thought to trigger a statutory bar contained in s 91K, which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.

146.   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.

147.   The applicant applied for a SHEV visa on 29 November 2016 (the first visa application, or 1910124). A delegate of the Minister decided to refuse to grant this visa on 21 November 2017. An application for review of the first application’s refusal decision was made on 23 April 2019.

148.   Following this, the applicant purported to make a second application for a SHEV visa on 26 June 2020 (the second visa application, or 2100873). The second visa application was refused by a delegate on 6 January 2021. An application for review of that decision was made on 27 January 2021.

149.   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.

150.   It is the Tribunal’s understanding that the second visa application pertaining to the applicant is, and always was, barred under s 48A. Accordingly, the Tribunal accepts that the second visa application is invalid.

151.   It follows that 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 made on 26 June 2020 is not valid.

Conclusion

152.   With regards to the first visa application, numbered 1910124, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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 criteria in s 36(2).

155.   With regards to the second visa application and for the reasons outlined above, the Tribunal sets aside the delegate’s refusal of the second visa application and substitutes it with a decision that the second visa application is not valid.

DECISION

156.   For case number 1910124: the Tribunal affirms the decision made by the delegate of the Minister on 21 November 2017 not to grant the applicant a protection visa.

157.   For case number 2100873: the Tribunal sets aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 26 June 2020 was not valid.

Joseph Lindsay
Member

ATTACHMENT – Extract from Migration Act 1958

5 (1) Interpretation

…

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

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

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

(a)     that is not inconsistent with Article 7 of the Covenant; or

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

…

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

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

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

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…