1910200 (Refugee)

1910200 (Refugee) [2023] AATA 3190 (23 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Andrew Vu Phuoc Luong (MARN: 1174565)
CASE NUMBER: 1910200 & 2117252

COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Meena Sripathy
DATE:23 June 2023
PLACE OF DECISION:  Sydney
DECISIONS:
CASE NUMBER 1910200   The Tribunal affirms the decision not to grant the applicant a Temporary Protection ( Subclass 785) visa.
CASE NUMBER 12117252  The Tribunal sets aside and substitutes a decision that the Temporary Protection visa made on 12 November 2020 is invalid.

Statement made on 23 June 2023 at 11:37am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – 2004 land acquisition and subsequent protests – issues with authorities since that time – police visit to parents’ home following data breach incident – left the country unlawfully – political activity in Australia – fear from money lenders – Australian citizen partner and child – referred for ministerial intervention – Temporary Protection visa of 12 November 2020 is invalid – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48A, 48B, 65, 91K, 411, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
GLD18 v MHA [2020] FCAFC 2
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZRSN v MIAC [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of two decisions made by delegates of the Minister for Immigration and Border Protection on 11 August 2016 (the first protection visa application) and 1 November 2021 (the second protection visa application) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicant, who claims to be a citizen of Vietnam, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 9 October 2015 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, where the Court held that the Temporary Safe Haven visa grants in the Ashmore affected cases were invalid, the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant first applied for a Temporary Protection visa on 4 November 2015. That application was not subject to the s 91K bar and was a valid application.
The Minister then purported to lift the s 91K bar and also lift the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.
The applicant then made a second application for a Temporary Protection visa on 12 November 2020. However, as the applicant had already made an earlier application which was not subject to the operation of s91K (given the effect of the decision in MICMSMA v CBW20), the Minister’s determination purporting to lift the s48A bar in respect of the applicant was of no effect and therefore this second application is not valid.
The first protection visa application made on 4 November 2015 was refused by the delegate on 11 August 2016. The delegate refused to grant this visa on the basis that they were not satisfied the applicant was a refugee or that complementary protection provisions applied. A valid application for review of that decision was made on 24 April 2019 following a new notification of the decision on 23 March 2019.
The second protection visa application made on 12 November 2020 was refused by the delegate on 1 November 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid, notwithstanding the delegate having made a decision on it. Notwithstanding that a valid application for review was made on 22 November 2021, the Tribunal has no option other than to set aside the delegate’s refusal and substitute it with a decision that the second visa application is invalid.
The applicant appeared before the Tribunal on 21 February 2023 and 16 June 2023 by video conference to give evidence and present arguments. The applicant was advised that the both cases would be combined in the hearing invitation, and this was explained at hearing. He did not indicate any issues with this approach. 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 did not attend the first hearing but was present at the second.
The issues in these cases are whether, for the purposes of the first protection visa made on 4 November 2015, there is a real chance, if the applicant returns to Vietnam now or in the reasonably foreseeable future, that he would be persecuted for one or more of the following reasons: his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm. As discussed above (paragraph 8) the Tribunal finds the second protection visa made on 12 November 2020 was an invalid visa application.
For the following reasons, the Tribunal has concluded that the decision under review in respect of matter 1910200 relating to the first protection visa application made on 4 November 2015 should be affirmed. In respect of matter 2117252 relating to the second protection visa application made on 12 November 2020, the Tribunal sets aside and substitutes a decision that the Temporary Protection visa made on 12 November 2020 is invalid.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born in [year] in Hai Phong, Vietnam and is now [age] years of age. He claims to be a citizen of Vietnam and provided various identity documents in support including a birth certificate, household registration and national ID card. The delegate’s decision record indicates that the originals of these were sighted at interview and no concerns were raised by the delegate about them. He indicates he has a wife and two daughters born in [year range], residing in Vietnam. He also has parents and one [brother], also in Hai Phong, Vietnam. He is in regular contact with his wife and daughters. He arrived in Australia illegally, arriving by boat via Indonesia without any documents. He provided three addresses in Vietnam prior to Australia. He declared past employment as a self employed [person] until 2011, and then was unemployed. He is educated to high school level.
Protection claims
At the first interview conducted with the applicant, on 16 May 2013 shortly after his arrival, he indicated that he came to Australia for peace, no war, respect for human rights, the opportunity to work. He indicated if he were to return to his country he would face a big debt, including the house. He wished to stay to work for his life and for his children’s education. No other reasons are referred to in this interview.
On 1 August 2013, a document was purportedly provided by the applicant while he was at [the] Detention Centre sent through the detention services provider to the Department.[1] The unsigned typed statement, written in English and containing the applicant’s name at the end provides the following information:
[1] [File] provided to the Tribunal in documents contained in [file number]
·In 2004 his family, along with around 200 other households in [Hai Phong], agreed to a request by the government to hand over their land to be used to develop a [construction] in exchange for certain compensation. The families moved to temporary shelter arrangements.
·After the completion of the [construction] later in 2004 the government did not compensate them as per the initial commitment.
·Thousands of people from the affected families demonstrated at the new [construction] to reclaim justice and human rights but their petitions were rejected. The government let the police, thugs and criminals oppress, beat and threaten them.
·The Government summoned people who submitted claims against them, including the applicant’s father, to the local government department and they were tortured, beaten and threatened. They were told if they tried to claim against them they would be charged with being members of the Viet Tan party and for organising a public disturbance.
·In [year range] the applicant applied for birth certificates for his two children from the local authorities in [Hai Phong] but they rejected and created difficulties for him so he had to get the documents from his wife’s home town.
·In 2013 he could not stand the way the government oppressed people while they could not state their opinion.
·His life was also threatened by thugs hired by his lender.
·If he returns to Vietnam the government will imprison him because of his illegal border crossing and the gangland will overwhelm his family’s life.
A document entitled Additional claims 14 August 2013, which appears to be a file note contains the following further information :
·In the context of the crackdown on protesters by undercover police he was injured on the left side of his cheek and his cheekbone was broken resulting in surgery.
·Government people were sent to his [business] and confiscating his equipment [and] discriminated against his family as he had two children and was not allowed to be issued birth certificates.
·He owes money to gangsters and fears for himself upon return.
First Protection visa application (4 November 2015)
The applicant’s claims for protection are set out in his application and in a supplementary statement provided to the Department subsequent to his Entry interview on 25 May 2013, and file note of ‘additional claims’ provided on 14 August 2013. [2] In response to the questions under reasons for claiming protection the applicant provided:
·In 2004 when his family was living on their own land the government asked them and 200 other households to move for a [development]. They were promised compensation and so they agreed and went to a temporary place. When they were not compensated as per the initial commitment the applicant stood up to reclaim justice and human rights.
·When he and 1000 people demonstrated the government summoned him and tortured and beat him and broke his cheekbone.
·Afterwards the government always created pressures and difficulties for him and his family and let thugs disturb them. He tried to escape to Nghe An where his wife’s family lived but could not escape Vietnam’s government.
·If he returns to his country the government will imprison him and torture and beat him. They will come to his family and beat, threaten and disturb them. Also he borrowed money from gangsters to care for his family and fears for himself upon return.
[2] Located by the Tribunal in [file numbers]
The applicant was interviewed by the delegate on 20 July 2016. The Tribunal has listened to an audio recording of this interview. At the interview he repeated the claims made in the application and provided the following additional information:
·In 2005 he went to live in Nghe An, where his then girlfriend was from (who later became his wife) and learned the trade [from] her cousin. After that he returned to Hai Phong and in 2006 he set up a [business] which he ran until 2011. During this period he was frequently visited by local authorities who would extort money or stock or demand that he buy them gifts (such as beer) on the threat of closure of his business. Once when he did not pay them they broke the signage to his business and threatened that worse would follow if he did not keep up his gifts/payments. He claims no other business operator in the market strip was likewise affected by the local authorities and that he was targeted for his standing up to the authorities in the 2004 land dispute.
·In late 2011/early 2012 in order to escape his troubles he moved to his wife’s home village in Nghe An where his application to register a [business] with the local authorities was refused without reason, which he believes was due to his bad name stemming from the 2004 land dispute in Hai Phong.
·On 31 January 2014 some of the applicant's biodata was inadvertently published on the department's website for a short period of time and he was invited to raise any issues or concerns he may have about that. The applicant responded that soon after the data breach took place, local police visited the home of his mother and presented to her a paper demanding that the applicant report to police when he returns. They did not leave the paper with his mother.
·He borrowed $US10,000 from a shop front money lender to fund his journey to Australia. The interest payment is 5% per month and his family back in Vietnam are making the monthly payments. The lender has sent their ‘thugs’ to his wife’s home (she lives with her father) stating that they will kill the applicant if he returns to Vietnam as they want their money back.
Second Protection visa application (12 November 2020)
The applicant’s claims in his second application for a protection visa lodged in 2020 were provided as follows:
In 2004 the Vietnamese Communist Government (VCG) took possession of the land that my family was living on. The VCG took our land and land from about 200 other households to build a [construction]. They promised to pay as compensation for the land, but once the [construction] was completed, they did not compensate as for the land was worth. I stood up to demonstrate and to reclaim our rights along with more than 1000 people attended this demonstration. The VCG sent the secret police, thugs and criminals to oppress, beat us and threatened us with harm. I was summonsed but the local authorities to be interrogated, where they beat and tortured me to the point where my cheekbone was broken. After this, the VCG continued create pressure and difficulties me and my family.
He stated that he did not seek help within the country because there is no one that could help him. He did not move or try to move because there was nowhere he could go for safety. He fears that if he returns to Vietnam he will be arrested, imprisoned, beaten and tortured. He claims the VCG is very secretive about their abuse of human rights and people who disagree with them can be imprisoned and sometimes ‘disappear’ (killed). He fears he would be such a victim. There are no independent bodies that protect people from abuse of the VCG because they are a dictatorship. There is no where he can hide from the VCG in Vietnam where he will be safe from harm.
The applicant was interviewed on 9 March 2021. The Tribunal has listened to an audio recording of the interview. At the interview the applicant discussed the claims made previously and provided the following information:
·He divorced his first wife in 2017. He has a new partner now, who has a child and they also have a child together.
·Since lodging his SHEV application, he has participated in Vietnamese community protests seeking freedom from the Communist regime in Vietnam. When asked for further details, he indicated that he attended one event while living in Melbourne around the end of 2015 or early 2016, where he held a sign in opposition to the Vietnamese regime. He moved from Melbourne to Perth in September 2016. In Perth he participated in one or two protests, around the end of 2016 and October or November 2017. His involvement was to chant slogans and show signs. He could not remember many details about what the protests were about. Since then he has not been involved in any other activities with the Vietnamese community because he has less time due to work and children. He indicated that there was a member of the Vietnamese Community in Perth who could support his claims called Uncle [A] and he would ask him to provide a letter.
·He did not previously mention this protest activity in Australia because he was only recently advised by his new advisor that it may be relevant to his protection claims.
·In discussing the protest he was involved with in Vietnam in 2004 he said he was the only one beaten very badly. His father was summonsed also but not beaten.
·After the protest and his beating he worked for a while with his father in his [business] but they were disrupted and had to close it. In 2007 he went to Nghe An and helped his brother in law with his [business].
·He lived in Nghe An from 2007 to 2013 and did not suffer any problems from the government there because he was only an employee.
·Between 2007 and 2013 he travelled back and forth to Hai Phong to see his parents and did not have any problems.
·He left Vietnam in 2013 because he felt that he was unable to do anything there, due to obstruction and harassment from the authorities. For example he could not register his children’s birth in Hai Phong and he lived like a dog in Nghe An, staying with his in laws and unable to establish his own business. His in laws had to pay a bribe to include him on their household registration.
·Although he previously claimed fear of harm from money lenders, the applicant confirmed that he no longer fears harm from them because he has paid back all the money he borrowed. His main fear now is from the communist government, because of the manner in which he left the country.
Tribunal hearing 21 February 2023

The applicant confirmed his current address in Perth, Western Australia, where he has been living since the end of 2017. He lives with his de facto partner, who is an Australian citizen, their daughter, born in [date] and his partner’s [age] year old son. He has been in a relationship with his partner since February 2016, when they met via social media. She was in Perth and he was in Melbourne at the time. She later came to meet him in Melbourne and he moved to Perth to live with her later that year. He stated that he provided his partner’s citizenship certificate and daughter’s birth certificate to his representative to provide to the Tribunal. The Tribunal indicated it did not have these documents but can give him time to provide them after the hearing.
He is not working at present because he does not have work permission.[3] His wife works part time, as she also had to care for their young child.
[3] The Tribunal notes that his current bridging visa does not appear to include a no work condition
The applicant has no other family in Australia. In Vietnam he has his parents and an elder brother. They all live in Hai Phong. His father is [an occupation]. His mum no longer works, she used to be [an occupation]. His brother has a [shop]. He is married and has [children]. His family have always lived in Hai Phong.
His ex wife has since remarried and he understands from information his parents told him, that she moved with her new partner to [Country 1], taking their younger daughter with them. His elder daughter is still in Vietnam, with her maternal grandmother. The applicant said his relationship with his wife ended in 2016 when he learned she had a boyfriend.
The Tribunal asked if he is in regular contact with his family in Vietnam. He is in contact regularly with his parents but less regularly with his brother. When asked if there are any issues, he said his father has [medical condition] and he is in contact with them about this.
The Tribunal asked about his addresses in Vietnam prior to coming to Australia. He gave two addresses, consistent with those provided previously. He said the one in Nghe An was from 2012 until he came to Australia in April 2013. Prior to that he was in Hai Phong in the same ward where his parents still live. He said he had a business in Hai Phong until around 2007. Because of problems he was experiencing he had to shut it down and he moved to Nghe An to work with his brother in law. He worked for his brother in law from 2007 -2008, then he returned to Hai Phong and worked with his brother until 2012 when he moved back to Nghe An. The Tribunal asked why he moved back to Nghe An in 2012. He said his mother told him that if he cannot operate a business in Vietnam he should try and leave the country. So he went to Nghe to make arrangements to leave the country.
The Tribunal asked if he travelled to any other place before coming to Australia. He said he did not. He applied for a passport in Nghe An for the reason that he was thinking of leaving the country. He took his passport with him when he left but was advised to dispose of it on the boat so he threw it into the sea. He could not apply for a passport in Hai Phong because of his issues there but he did not have any trouble obtaining his passport in Nghe An. He has never applied for a renewal of his passport since coming to Australia.
The Tribunal asked about his previous employment. He said he opened his business in 2005. It was a small [shop]. This was his first employment in Vietnam after leaving school.
The Tribunal asked the applicant why he applied for protection in Australia. He said he is concerned that the communist government of Vietnam knows that he fled the country for Australia. At an interview in Australia he talked about problems he had with the communist government in Vietnam and that he was not allowed to run his business. He is afraid if he goes back they will know about this. In 2014 and 2015 members of the security forces came to visit his parents house and asked about him. They issued a verbal summons for him to present the next day at the local police command. They did not say why they were looking for him. The applicant believes that the reason they came looking for him was connected with information being released about him being in an Australia detention facility around this time. He heard from fellow detainees that this information was released. Apart from two visits in 2014 and 2015, his parents did not tell him about any other visits.
The other reason he is afraid to return is that he borrowed money from money lenders to come to Australia and he is afraid they will come and chase him if he returns. He borrowed about USD$10000. When asked if he paid it back, he said he was not able to pay it all back because there was a very high interest rate. When asked how much he paid back, he said he paid a bit when he was working but because the interest was so high he does not know how much was paid.
The Tribunal put to him that at his interview with the Department in March 2021 he said he paid the whole amount back and is no longer fearful of the money lenders and this now appears to contradict his earlier evidence. In response he said in fact he learned the debtor did not accept that he had paid it all back and said it was only interest he had paid. When asked when he found this out, the applicant said he sent money to his wife in 2016 and that is when she told him that the payments were not completed. The applicant then changed this and said he sent the money to his wife. She was in contact with the money lenders. He does not know the money lenders. Now she is in [Country 1]. He is afraid if he returns they may track him down and demand he still owes them money. He does not know them but they know who he is. He does not know if he owes them money. But this is only the secondary reason he is afraid to return. The main reason is his fear of the communist authorities.
When asked why he fears the authorities would be interested in him he referred again to having heard that what he declared to the Department was released in 2014 and he believes the authorities obtained that information and would take revenge on him. He said he had heard of other cases where this happened.
The Tribunal put to him that it accepts that he was advised in February 2014 that his name and details of his detention, among other personal details were exposed in a data breach but there is no information to indicate that any details of his protection claims were included. It also notes that he did not lodge his protection visa application until November 2015 and was not interviewed about that until July 2016 and therefore the Tribunal may not accept that he is at risk of persecution for that reason as he claimed. The Tribunal invited his comment on this. In response he said that he fled the country without permission and in doing so breached the immigration laws so he is afraid because of that. When asked what he is afraid will happen to him because of that, he said they will charge him with an offence of intention to oppose the government and state. He said no matter what you do even if it is a small mistake, if you flee the country illegally the government will charge you with this offence.
The Tribunal put to the applicant that independent information it has considered, including information from DFAT that it is required to consider, indicates there is no evidence that all people who left illegally are charged with this offence. The information indicates that at most people may be questioned about the arrangements made to depart in this manner and may be administratively fined. In response the applicant said he would like to say a few things about this. Firstly the Communist Government may show this to the world at large but we don’t really know what they actually do. He agrees that some people will not be charged but his situation is different. He used to join in a protest against the government and was previously detained and mistreated – he had his cheekbone broken- and was on a blacklist and unable to run his business or register his children. So because of this background he will not be treated like others. The applicant said the whole world talks about the situation of the lack of human rights in Vietnam. There are many people who are detained for protesting against the government.
The Tribunal asked what protest he is referring to in relation to himself. He said the communist authorities came to his place and demanded the land be handed over for public use. They promised compensation would be paid but did not compensate as they announced and delayed the payment for a long time. People in the residential area, including his family, marched on the road with banners to protest against the project. The police came and tried to get them to stop and there was a conflict. The applicant said he was arrested and he was demanded to not repeat the activity and prohibited form demonstrating again. This incident took place in 2004.
When asked if there were any other repercussions of this for him up to the time he left the country in 2013, he said he tried to open a [shop] in 2005 but encountered many problems and harassment from people. He assumed the authorities were behind this because there was no other explanation for it. The Tribunal asked why he was singled out to be targeted if so many people in the area were involved. The applicant said he was young at that time and was very vocal. He was like the big mount during the demonstration, the loudest voice and the authorities therefore targeted him.
The Tribunal put to him that even if it were to accept his account of this incident in 2004 and that he suffered subsequent harassment trying to run his business soon after, it may not accept that the authorities in Hai Phong would still have an interest in him almost 20 years later. It also pointed out that he moved to Nghe An and was able to live there for years without problems from the authorities and was able to register his children and apply for a passport which suggests no interest in him. The Tribunal invited his comment on this. He said he would like to comment about how the authorities in Vietnam work. When he could not register his daughter’s birth in [year] and again in [year] and had to come to Nghe An to do it, he was required to pay a bribe to get it done. The same with registering his address in Nghe An, it took time and payment of money. In Vietnam if you pay money you can get anything done. Just because he was able to get things done does not mean he did not have problems.
The Tribunal noted that it is assessing whether he faces a real chance of harm now or in the near future and it is almost 20 years since this incident in 2004 and the Tribunal may not accept he will be of interest to the authorities now for this reason. The applicant disagreed. He said because he fled the country while on a black list it does not matter how long he will always be of interest to them and be targeted. The applicant gave as an example the situation of Chau Van Kham who is an Australian citizen who has been held in detention for a lengthy time because of his activities in Australia. The applicant said he believes his situation is similar to that and he fears also being detained despite the time that has passed since his incident.
The Tribunal put to the applicant it would consider his response but the issue is whether it accepts he has a profile of this level to warrant the ongoing interest of the authorities. It must also consider that he was able to remain in the Nghe An area until 2013 and did not appear to suffer serious harm from the authorities.
It asked if apart from the events in 2004, is there any other reason he would have a profile to authorities. The applicant said he does not know of any other reason the authorities would target him, other than that he was previously on a blacklist and he does not believe they would forget. He repeated the issues he faced running his business, registering his child and changing his residential address to a new area.
The Tribunal put to him that his parents and brother have remained living in the same area throughout and this would suggest no interest by the authorities from the 2004 events. He said his brother did not join the demonstration and so was never of interest to them. His father was involved but he has been afraid ever since and never did anything else.
The Tribunal asked the applicant to confirm if the demonstration in 2004 was the only political activity he engaged in in Vietnam before coming to Australia. He said he was just [age] years old, had participated in a demonstration to seek fairness and was arrested and had his cheekbone broken, given this how could he be brave enough to do anything else. After that he was prevented from running his business and had to hide his residential address.
The Tribunal noted in previous interviews he referred to attending political activities in Australia and asked if he wanted to say anything more about that. He said when he came to Western Australia his daughter was just born and he was busy working. He received messages about demonstrations and had joined a couple previously but only as a participant and not in any organising role. The Tribunal noted he previously referred to attending one event in Melbourne and two in Perth is this what he is referring to. He said he cannot recall what he said previously. He did not have serious interest in those activities. He was staying with people at that time and just went along with them at their invitation. In Perth the movement is not strong and he has not been involved.
The Tribunal asked if there was anything else he wanted to say. He said he has now been living in Australia for almost 10 years. When he was in Vietnam he was unable to live as a citizen despite being born and raised there, he had no rights as a citizen. Here he has been living for 10 years, he has a wife and a daughter. He just wants to have the opportunity to stay with his family and work and pay taxes.
The Tribunal explained that it will consider all of the evidence before it, but the decision it makes relates only to whether he meets the criteria for protection. It has no power to take into consideration other circumstances. However, there may be other options for him to consider pursuing, if he is found not to meet the criteria for this visa, in light of the developments in the law that allowed his case to proceed to this Tribunal. Specifically, he may have the option of making a Partner visa application or if not seeking Ministerial intervention given that he has an Australian citizen partner and child.
The Tribunal allowed the applicant a period of 2 weeks to provide any further information or submissions arising from the hearing.
On 7 March 2023 the Tribunal received the following documents from the applicant, through his representative: birth certificate for applicant’s Australian born daughter and Australian citizenship certificate for mother of applicant’s [child].
On 26 May 2023 the Tribunal invited the applicant to a further hearing on 16 June 2023 to discuss an issue arising concerning the scope of its jurisdiction in relation to the matters before the Tribunal. The hearing was conducted by video conference.
Tribunal hearing 16 June 2023
The Tribunal explained to the applicant the issue that has arisen since the last hearing relating to the scope of the Tribunal’s review of the decision relating to his second SHEV application made on 12 November 2020. In summary, it explained that the Ministerial determination purporting to lift the s48A bar to allow him to lodge this application was of no effect, and this means the visa application was invalid. The effect of this for the Tribunal is that the only decision it can make in relation to matter 2117252 is to set aside and substitute a new decision that the visa application is invalid. However, the first application is valid and the Tribunal will be considering in respect of this application, whether he meets the criteria for protection as a refugee or, alternatively, under the complementary protection criteria. Therefore the substance of the review remains the same. The Tribunal asked the applicant or his representative if they had anything to say on this. The applicant indicated he did not. The representative asked whether, in light of the finding that the second visa application is invalid, it is necessary to resubmit to the Tribunal any claims or evidence put forward in that application. The Tribunal said it does not consider this necessary because all of that information is before the Tribunal and was discussed with the applicant at the first hearing. It considers the applicant’s oral evidence at the first hearing was given in relation to both matters and it will be taking all the evidence into consideration in making its decision.
The representative requested further time to provide submissions addressing the complementary protection criteria. The Tribunal noted the time he has had to date, but agreed to allow until 20 June 2023 for any final submissions.
The Tribunal explained that it will be considering all of his evidence provided at the last hearing and asked if he wishes to say anything more about his protection claims. The applicant repeated that he has a young daughter here and they are very attached and he would like to be able to stay in Australia and look after her. The Tribunal acknowledged this and repeated that it can only consider whether he meets the protection criteria relating to the visa application he has applied for. Depending on the outcome of the review he may wish to consider whether he has other options, for example to apply for a Partner visa or seek Ministerial intervention on the basis of his family circumstances.
On 20 June 2023 the Tribunal received a post hearing submission from the applicant’s representative. It submitted that information obtained and relied upon in DFAT’s Country Report Vietnam are ‘woefully inadequate, outdated and reliant upon a self-serving propagandic regime.’ The representative refers to the case of Australian citizen Mr Chau Van Kham, jailed since 2019 for 12 years on ‘terrorism’ offences as an example of human rights abuses in Vietnam and refers the Tribunal to the UN’s Working Group on Arbitrary Detention’s opinion that Mr CHAU, Vam Kham’s detention is arbitrary and an unlawful abuse of international human rights and the government’s continued imprisonment of him. The representative cites, in support of his submissions, a personal anecdote taken from his own childhood, in 1981. The representative submits
The Applicant in this case left Vietnam after direct confrontation with the VCG, given the VCG’s inability to speak the truth.
Assessments such as the one in this case, “DFAT assesses that low-level protesters against the government, and their supporters, face a more moderate risk of harassment from authorities…” are not helpful as they rely upon the information disseminated by the self-serving VCG.
The real position is that Australia cannot guarantee the Applicant’s safety, nor, can it ignore the real risk that the Applicant will suffer the mistreatments as set out in section 36(2A) of the Act if he is returned to Vietnam.
FINDINGS AND REASONS
Nationality
The applicant does not have, and did not arrive with, a passport. He claims he had a passport but disposed of it at sea as advised by the smugglers. He provided a birth certificate and nationality certificate to the Department to establish his identity. Since his arrival he has been interviewed by the Department on three occasions, submitted two written applications, and had a face-to-face hearing before the Tribunal. In all of these interactions he has provided substantially consistent written and oral evidence about his family composition, place and date of birth. No concerns about his identity or nationality have been raised by the Department at any time.

On the basis of the consistency of his evidence and the identity documents before it, and in the absence of any specific concerns raised about these matters, the Tribunal accepts the applicant is a national of Vietnam and considers Vietnam is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70. The Tribunal takes the above principles into consideration in making its findings below.
The following claims have been advanced in the course of the applications for protection visas that are the subject of the present reviews: His family’s land was the subject of a compulsory acquisition in 2004 for which they did not receive proper compensation; in response he and other villagers participated in a demonstration to protest the government’s actions and he was called in to the authorities and threatened and beaten; he suffered a broken cheekbone in this incident; after this he was unable to successfully run his [business] in Hai Phong due to harassment and extortion instigated by local authorities; he was prevented from registering the birth of his daughters in Hai Phong in [year range]; he moved to Nghe An province but was unable to register his new address there until 2012; he borrowed money from money lenders at a high interest rate to fund his travel to Australia; he departed Vietnam illegally using the services of people smugglers in 2013; in 2014 he was the subject of a data breach in Australia and subsequently his family was visited and demanded he report to authorities; he participated in one anti Vietnamese Government protest in Melbourne and two events in Perth. The applicant fears harm from the authorities in Vietnam because of his past profile arising from protesting the 2004 land acquisition and conduct since then, including the manner of departing the country.
Below the Tribunal makes findings on the material facts and claims arising from the evidence and then assesses the applicant’s risk of future harm.
Claims relating to 2004 land acquisition and subsequent protests
The applicant raised this claim consistently in both applications, and in fact earlier still, in the statement he made in August 2013. However his evidence about the level and consequences of his involvement in the subsequent protests has varied over time and in certain respects has been inconsistent with respect to particular details. For example, he did not mention the injury to his cheekbone in the first statement about this incident, stating only more generally that the protesters were beaten and threatened by police, thugs and criminals. In his subsequent claims for protection he referred to being specifically summonsed, tortured and beaten. Before the delegate, at interview in March 2021, he stated he was the only one of the protesters who was beaten badly, and his father was summonsed by not beaten.
The Tribunal accepts there is support in the independent information before it that land disputes and compulsory acquisitions by the government occasionally lead to protests. As stated in the DFAT report, “the state retains the right to reacquire the land and land owners allege low levels of compensation, which sometimes leads to protests”. Often these disputes and conflicts arise in the context of environmental or religious contexts. The DFAT report acknowledges that it is difficult to predict when a protest will escalate or attract Government attention, and that it can be dependent on the local government authority and its priorities.[4] Other sources considered by the Tribunal also refer to the issue of land disputes, and particularly to police being used as a coercive measure in land disputes.[5]
[4] DFAT Country Information Report Vietnam para 3.65-3.67, p20
[5] LAND GRABS IN VIETNAM | Facts and Details, Factsanddetails.com, 1 May 2014, CX1B9ECAB12849; Land Disputes Stir Political Debate in Vietnam (csis.org), Center for Strategic and International Studies, 24 July 2012, CX0D38E8E21045; Report on Human Rights in Vietnam 2012, The Vietnam Human Rights Network (Westminster, California, USA),1 May 2013, CIS36DE0BB1573, pp.32- 34 ; Human Rights Watch 2008, Not Yet a Workers’ Paradise: Vietnam’s Suppression of the Independent Workers’ Movement | HRW
With regard to the inconsistences in the applicant’s evidence, the Tribunal takes into account the substantial time that has passed since his claims for protection were made, the impact of this on his memory and recollection, and that he has made statements with limited English capacity and has given evidence at numerous interview through different interpreters. Taking all of that into consideration, together with the independent evidence that generally supports his claims, the Tribunal accepts, on the basis that it is plausible and credible, his family land was subject to a land acquisition in 2004 and that he, and others, protested the action at the time. It accepts, for this assessment, that he was subject to beatings and mistreatment in the context of his protest activity and suffered an injury as claimed.
He has not, nor has he claimed to have, been involved or engaged in any other protest activity in Vietnam after that incident.
Claims of issues with authorities since that time
The applicant claims that following the land acquisition and protest activity relating to it, he experienced problems with local authorities when he tried to register the births of his daughters in [year range] in his home town of Hai Phong and had to register them in his wife’s town of Nghe An. The applicant’s evidence of when, for what period and why, he lived in Nghe An has varied over the course of his applications.
He has variously claimed a) that he experienced extortion and harassment when he was running a [business] in Hai Phong and believes this was because of his history as a land dispute protester (in his interview on 20 July 2016 in respect of the first visa application) and b) that he lived from 2007 -2013 in Nghe An where he worked with his brother in law, and experienced no problems from the government because he was an employee (in his interview with a different delegate on 9 March 2021 in respect of the second visa application), and c) before the Tribunal at hearing in February 2023, that he lived in both Hai Phong and Nghe An in the period 2005 -2013, operating his own business in Hai Phong until 2007 and then working for his brother in law in Nghe An between 2007-2008, before returning to Hai Phong to work for his brother until 2012. He told the Tribunal he returned to Nghe An in 2012 to make preparations for his departure to Australia in 2013.
Having regard to the evidence before it, the Tribunal accepts that the applicant lived in both Hai Phong and Nghe An, his wife’s hometown, between 2005-2013 prior to coming to Australia in April 2013. It has some concerns about the reliability and credibility of his claims about having difficulties with the authorities in Hai Phong because of his protest history given the lack of consistency in his accounts, however, for the purposes of this assessment, it will give him the benefit of doubt and accept that in the early days following the land confiscation and dispute he may have experienced issues with authorities in the context of running his business in Hai Phong. However, he has consistently claimed that he did not experience any issues with the authorities in Nghe An when he worked with his wife’s brother; was able to register his daughter’s births in Nghe An, and apply for and be issued a passport in Nghe An. The Tribunal also finds, on the applicant’s evidence, that his brother continues to operate a [business] in Hai Phong to this day.
Claim of police visit to parents’ home following data breach incident
The applicant has claimed that in 2014 or 2015, members of the security forces visited his parents and asked about him. He believes that this visit was prompted by the data breach in Australia which disclosed personal details about him. He has not claimed that there has been any further visits or interests by the authorities apart from this one occasion.
As discussed with the applicant at hearing, while it is acknowledged that he was included in the data breach that occurred in 2014, there is no information to suggest that any details of his protection claims were exposed in the data breach. The Tribunal also notes that he did not lodge his first protection application until November 2015 and was not interviewed until July 2016. The data breach letter sent to the applicant on 2 July 2014 [6] states the information that was able to be accessed in that period was his name, date of birth, nationality, gender, details of when and where he was detained and related family members in detention. It specifically did not include any information about protection claims or any other information. The applicant offered no further explanation as to how and why any visit by authorities to his parents would be connected to the Australian data breach. He repeated his claim that he fears repercussions because of his manner of departure from the country.
[6] [File number]
On the above information, the Tribunal does not accept that the applicant’s parents were visited by authorities in 2014 or 2015 because of the data breach in Australia or for any reason. In any event he has not claimed any further visits, and therefore the Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of the data breach that occurred in 2014.
Claims of fear of harm from authorities because he left the country unlawfully
The applicant claims he left the country without permission, by boat. He has also given evidence that he applied for and was issued a passport in Nghe An but stated that he did not use this to depart the country and has since disposed of it as instructed by the smugglers. For the purposes of the present assessment, and in light of the evidence before the Tribunal, including his consistent evidence regarding his manner and means of arrival and lack of passport documentation to date, the Tribunal accepts the applicant departed Vietnam by boat and would not have obtained permission for his departure.
Information in the DFAT Country Information Report Vietnam states the following regarding illegal departure and conditions for returnees[7]:
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.
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..
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.
[7] DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 11 January 2022, p.26
Having regard to the above information and the applicant’s claims, it is not satisfied that there is a real risk he will face serious harm upon return solely for the reason that he departed Vietnam by boat without using his passport. At most he may be questioned upon arrival about the arrangements for his departure, but given the passage of time, he is not likely to have much information of use to the authorities. The Tribunal makes this finding on the basis of DFAT information that they are not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia, the substantial passage of time since the applicant’s departure (almost one decade ago now), and the applicant’s lack of any profile of interest. The Tribunal has specifically considered the applicant’s claim that his history of joining a protest against the government (referring to the 2004 land acquisition event) when he was detained and mistreated and subsequently on a blacklist such that he was unable to run his business or register his children are the reasons why he would not be treated like others when questioned on arrival. However, as explained earlier and further below, it does not accept that the authorities have any interest in him arising from that event of two decades ago.
Claims of political activity in Australia
The applicant raised this claim for the first time at his interview for the second protection visa application in March 2021. At that time he indicated he attended one event in Melbourne at the end of 2015 or early 2016, and one or two events in Perth in 2016 and 2017. He had minimal details of what the protests were about and why he attended. He stated that he has not been involved since then because of commitments to work and children.
At the hearing, the applicant told the Tribunal he never had serious interest in any of those events, and just went along to them because the people he was staying with were going. He confirmed he has not been involved in any political activities while living in Perth.
On the basis of the applicant’s recent evidence at the hearing it does not accept he has been actively involved in political activities in Australia that would lead authorities to have any interest in him upon return. Apart from the incident of the dispute over his family’s land confiscation in 2004, he did not engage in any other political activity in Vietnam prior to coming to Australia. Given his lack of political engagement in Vietnam and Australia in almost two decades, the Tribunal finds that the applicant is not likely to engage in political activities or protests which would bring him to the adverse attention of the authorities upon return in the reasonably foreseeable future.
Claimed fear from money lenders
The evidence from the applicant about his fear of harm arising form debts owed in Vietnam has been inconsistent and lacking in convincing detail. The Tribunal notes he first mentioned this claim in his written statements provided to the Department in August 2013. He also referred to this claim in his first TPV application in November 2015, and referred to ‘thugs’ being sent to his wife’s home at the interview with the delegate in July 2016. However, this claim is not mentioned in his second SHEV application made in November 2020, and at the interview in March 2021 he told the delegate he no longer fears harm from the money lenders because he has paid back all the money he borrowed. At the hearing in February 2023, the applicant again raised this claim, but was unable to provide any details about how much he paid back and how much was still owing. When the contradictory evidence he gave to the delegate in March 2021 (that he had paid it all back was no longer in fear of the lenders) was put to him he gave various responses, initially stating he later learned that it was not all repaid, and then stating that he gave the money to his wife and does not know if she paid the lenders and she is now in the US.
Having considered all of the above, including the contradictory, inconsistent and vague evidence about whether, how much and to whom he owes money, and given the substantial passage of time since his departure from Vietnam (over one decade now) the Tribunal is not satisfied that the applicant has an outstanding debt owing to any lenders in Vietnam and is not satisfied that he faces a real chance of harm arising from an outstanding debt.
Fear of harm upon return due to past protest activity and actual or imputed political opinion
The applicant claims to fear harm from the authorities because of his profile as a person who was involved in a land dispute in the past, who protested against that and was detained and mistreated in that context. He claims that his past difficulties in Hai Phong registering his children and running his business indicate he has a political profile there which he believes would still apply to him upon return. Given this, he fears he will attract adverse attention from the authorities when questioned on return about his manner and reason for departure.
The Tribunal has considered the applicant’s claims and arguments. Above, it has accepted for the purposes of this assessment, that the applicant participated in protests about the land confiscation in 2004 and was prepared to accept, following this, he faced difficulties or issues with the authorities in the context of getting his daughter’s birth registered and running his business. However, since then, he was able to get his daughter’s births registered in Nghe An, apply for and obtain a passport in Nghe An, and continued to live and work in Nghe An and Hai Phong until 2013 when he came to Australia, without experiencing serious harm. He did not participate in any other political or protest activity in Vietnam nor has he actively participated in political activities or protests while in Australia that would give him any profile of interest upon return. It has been a substantial period of time since he last came to the attention of the authorities in Vietnam and over a decade since he departed the country. In these circumstances, the Tribunal is not satisfied there is a basis to conclude that he faces a real chance of serious harm for reasons of his actual or implied political opinion arising from this historical event.

In reaching this conclusion the Tribunal has considered country information about political opinion and freedom of expression in Vietnam. The DFAT report provides the following information. Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. While the information indicates that there is some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; with activists in different contexts facing arrest. Human rights, environmental or land-use protests and calls for democracy are sensitive, and NGO’s links to foreign governments may also intensify Government monitoring. DFAT concludes that it is difficult to make an overall assessment of risks to activists because there are no clear patterns to determine who will be arrested or when. It concludes that those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting and those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.[8]
[8] DFAT Country Information Report paragraphs 3.49-3.57, p18-19
The Tribunal has considered the applicant’s response when this issue and the country information was raised with him at hearing, and specifically his response that, having departed Vietnam while on a blacklist his situation is similar to that of Chau Van Kham, an Australian citizen who has been held in detention for a lengthy time because of his activities in Australia. The Tribunal acknowledges there are numerous examples of arrests and lengthy sentences for high profile activists and specifically that Australian citizens with links to Viet Tan, have been sentenced to lengthy prison sentences for engaging in terrorist activities.[9] The Tribunal has also considered the representative’s post hearing submission and the UN’s Working Group on Arbitrary Detention’s Opinion No. 13/2022 concerning Chau Van Kham (Viet Nam) provided.
[9] ‘DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019, p.26. In November 2019, Chau Van Kham, a 70-year-old Vietnamese-Australian dual citizen, and two co-accused (Vietnamese nationals) were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). According to DFAT, authorities arrested him, ‘a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist’. Despite international pressure to release Kham, his appeal was denied in early 2020: '2019 Report on Political Prisoners and Activists at Risk in Vietnam', The 88 Project, 22 June 2020, p.16, 20200630115846.
However, given the findings above regarding the applicant’s background and profile, the Tribunal does not accept the applicant’s circumstances are comparable to that of Mr Kham as claimed. He has not been of interest to the authorities in Vietnam for close to 20 years, there is no evidence that he suffered treatment amounting to serious or significant harm in the period he lived in Nghe An and Hai Phong until he travelled here in 2013 and he has not engaged in any political activity that would attract attention to him while in Australia. Nothing in the applicant’s claims or evidence suggests that he will engage in political activism or protest activity upon return that would put him at risk of adverse attention or harm from the authorities.
Having regard to the evidence before it, and considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant faces a real chance of serious harm for reasons of his actual or imputed political opinion upon return to Vietnam in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criteria
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk that he will suffer significant harm as defined in s36(2A) of the Act.
Above, the Tribunal has accepted the applicant protested against the confiscation of his family’s land in 2004 and suffered an injury in the context of that incident at that time. It also accepted that in the year or two following that he may have had some difficulties with local authorities in Hai Phong in the context of registering his child and running his business. However, he moved to Nghe An and travelled and lived between these two places until 2013 when he came to Australia and was able to register his children, obtain a passport and suffered no further adverse interest or harm since then. He has not participated in political activities or actions since 2004 that would bring attention to him from the government. It accepts that he would return as a failed asylum seeker returnee. Considering these findings, for the same reasons given above, that the Tribunal was satisfied he did not face a real chance of serious harm, the Tribunal is satisfied that there is no real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Vietnam.
Accepting that the applicant has been outside Vietnam for over a decade now, and that he has an Australian born child and an Australian citizen partner, the Tribunal acknowledges that he may face challenges and hardships being separated from his immediate family and may find it difficult to earn sufficient income to support his family here from overseas. However, it finds that financial hardship or unemployment does not come within the meaning of ‘significant harm’ for the purposes of this criteria. Regarding the implied claim of harm of separation from his child and partner in Australia, the Tribunal is bound by case law authority, SZRSN v MIAC, confirmed in GLD18 v MHA, that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[10]
[10] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]). In GLD18 v MHA [2020] FCAFC 2, the Full Federal Court confirmed that SZRSN was correct about the scope and operation of the concept of ‘significant harm’ as part of the protection visa criterion in s 36(2)(aa), and also held that regardless of the location or visa status of other family members, the authority of the approach set out in SZRSN would continue to apply and any claim of harm arising from family separation resulting purely from an applicant’s removal from Australia will not satisfy s 36(2)(aa): at [36]–[58], [67].
For these reasons, while not unsympathetic to the applicant’s situation regarding his family situation, economic prospects and future in Vietnam, the Tribunal is satisfied there are no substantial grounds for believing that there is a real risk the applicant will suffer significant harm if he is returned to Vietnam.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Ministerial intervention
Although the applicant has not made an express request for referral, having regard to the applicant’s circumstances, in particular, the evidence that he has an Australian citizen partner and a [age] year old Australian citizen child, together with the substantial period of time he has been residing in Australia and his prolonged visa application history (due to multiple legal complications relating to his visa applications which were not of his making), and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
DECISIONS
In respect of matter 1910200, the Tribunal affirms the decision not to grant the applicant a Temporary Protection (Subclass 785) visa.
In respect of matter 2117252, the Tribunal sets aside and substitutes a decision that the Temporary Protection visa made on 12 November 2020 is invalid.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3190

23 June 2023

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice