1916133 (Refugee)

1916133 (Refugee) [2024] AATA 4164 (8 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Hoang
CASE NUMBER: 2115792; 1916292; 1916133;1910227

COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Damian Creedon
DATE:8 September 2024
PLACE OF DECISION:  Perth
DECISIONS:  2115792: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

1910227:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

1916133:The Tribunal sets aside the decision refusing to grant a protection visa and substitutes a decision that the Safe Haven Enterprise Visa application is not valid and cannot be considered.
1916292:The Tribunal does not have jurisdiction in this matter.

Statement made on 08 September 2024 at 3:20pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – Viet Tan member – illegal departure – political activities in Australia – fear of detention – torture of political prisoners – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 423, 499
Migration Regulations 1994, Schedule 2; r 1.12
CASES
DBB16 v MIBP [2018] FCAFC 178
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 decisions made by delegates of the Minister for Home Affairs on 29 October 2021 and 2 April 2019, in relation to the first and second applicants respectively, to refuse to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background:
General

The first applicant, [an age]-year-old citizen of Vietnam, applied for the visa on 28 October 2020. The second applicant, [an age]-year-old citizen of Vietnam, applied for the visa on 27 September 2018.
Departmental records indicate that the first and second applicants arrived separately in Australia as Irregular Maritime Arrivals [in] April 2013 and [March] 2011 respectively.
For the balance of this decision the Tribunal will refer to:
a.the first applicant as the applicant; and
b.the first and second applicants jointly as the applicants.
Application for Safe Haven Enterprise Visas
The procedural history of the applicants’ status since their arrival onshore is complex and was impacted over time by judicial consideration and ministerial interventions. A detailed examination of that history is not directly relevant to resolution of the issues for review, suffice it to note that the Tribunal is satisfied that the first and second applicants made valid applications for Safe Haven Enterprise Visas (XE-790) (SHEV)s on 28 October 2020 and 27 September 2018 respectively.
The applicants are presently onshore on bridging visas pending the outcome of this review.
Joint hearing and combined decision
The applicants made separate SHEV applications, and separate applications for review.
[In] April 2018 the first and second applicants were married according to the laws of the Commonwealth of Australia, and the Tribunal is satisfied that they are members of the same family unit for the purposes of the Act.[1]
[1] See: Sec 5 of the Act (definitions of "member of the same family unit" and "member of the family unit"); and Reg 1.12(2)(a) of the Regulations.
Prior to their hearings the applicants requested a joint hearing; the request was appropriate in the circumstances and was granted by the Tribunal. During the hearing the applicants consented to the Tribunal making a combined decision on their respective reviews.
For reasons which will become apparent the substance of the review will focus upon the circumstances of the first applicant.
Protection visa application
The applicant’s claims for protection may be summarised as follows:
·The applicant is a member of the Saint Theresa group in Vietnam. This catholic group aided sick and dying Catholics in his local community.
·He was interviewed by the Department soon after arrival, he was asked to give a brief description of his claims, so he did not provide full details of his claims at the time. The Department did not explain to him what was relevant and what he needed to say.
·He travelled from Vietnam to [a second country] by air using a fraudulent passport. The passport was destroyed by the people smuggler in [that country].
·His family gave his original Vietnamese documents to a student who was coming to Australia, he posted it to the applicant after he arrived in Australia.
·His father is working as a casual [occupation 1] and his mother is selling local produce at their family store in the local markets. They are both living in Nghe An Province.
·His [specified family members] are all residing in Vietnam.
·From 2006 to 2012, he was in [Country 1] working in a [business].
·At the Entry interview, he claimed that he did not understand he had to explain events that happened to him personally and he instead gave an account of what happened to the leader of Saint Theresa group in his area.
·In 2000, he joined the Saint Theresa group and became a member at his local province. The group visited sick people within the Catholic community in Vietnam, helping them to complete household chores. The group was also responsible to clean the church area.
·He heard about the Saint Theresa group when the group director came to his area to talk about the group and Catholic faith. The group was targeting at Catholics.
·His brother [also] joined the Saint Theresa group.
·In March 2012, he returned from [Country 1].
·In May 2012, he went to pray at the [Church 1] Church with the Saint Theresa group and other members of the catholic community. The church was located fifty kilometres from his home, and they were stopped by the police on the way. [Details deleted]. The priest from this church was arrested and tortured by the police. The police and army came to [Church 1] to prevent all the people from visiting the area.
·While he and the group were on the way to the church, the police stopped them and told them to go back home. The group including himself argued with the police before complying with the police’s demand.
·He believed they were initially identified by the police because they were a group of young people travelling in the same car.
·After they returned him, he and his Catholic youth group printed a banner and hung it on the road near his local church to raise community awareness about the [Church 1] incident, including the arrest and torture of the [Church 1] priest and the closure of the church by the police and army. They wanted the local community to pray for the [Church 1] Catholic Church.
·The local priest in his community organised a group prayer session for the local community to pray for [Church 1]. During the praying session, plain clothes police came along.
·After this prayer session, one of the prominent group member named [Mr A] who attended the prayer session was arrested by the police. He was sentenced to [number] years of imprisonment and [number] years of government supervision.
·A week after the incident, a stranger visited his home and asked his family about him. This happened on a number of occasions. He believed these strangers were undercover police.
·After [Mr A’s] arrest, he decided to leave Vietnam as he believed he would be arrested for participating in the same activities as [Mr A], in his local church and the Saint Theresa group.
·If he returns to Vietnam, he will be arrested and imprisoned due to his illegal departure from Vietnam, membership with Viet Tan and his participation in protests in Australia.
·He became a member of Viet Tan in 2016. He participated in two marches in [Australia] [in] April 2015 and [April] 2016.
The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied to the Tribunal for a review of the delegate’s decision.
Application for review:
Evidence
The Tribunal has before it a range of material including, relevantly:
(a)the applicants’ SHEV application forms;
(b)the applicants’ identity documents, being their ‘Household Registration Books”;
(c)the applicants’ respective SHEV decisions;
(d)the application for review forms;
(e)documents submitted to the Tribunal in support of the applicants’ review, including the following:
·Two photographs being the front and back of a document written in the Vietnamese language, together with a translation thereof; the document appears to be of a ‘proforma’ style bearing both ‘formal’ printing and handwriting in the various sections on its face. The translation of the document is as follows:
SOCIALIST REPUBLIC OF VIETNAM
Independence-Freedom-Happiness
MEETING REPORT
At 3pm on [a day in March], 2023 at the police station of [Commune 1] commune, [specified] district, Nghe An We include:
Mr. : [Official A] Title
Under the Department of Homeland Security, Nghe An Provincial Police.
And [Mother A], born on [date], living in hamlet [number] [Commune 1]. Dien Chau district, Nghe An [area code]
Proceed to work with the following content:
l inform her ([the applicant’s] biological mother, born in [year], living in Australia) about [the applicant’s] activities related to Viet Tan organization and his participation in protests against the state of Vietnam.
WORK RESULTS
Information and background and activities of [the applicant] had been clarified: [Mother A] said that [the applicant] travelled illegally to Australia in 2013, since then, he has never returned. After his arrival in Australia, he was arrested.
He was only released one year later. Currently he is working in [a] shop with his wife in Australia.
Inform [Mother A] was informed about her son's activities related to the members of Viet Tan organization and about [the applicant’s] participation in anti-Vietnam protests in Australia.
Through the working process, [Mother A] realized that [the applicant’s] actions were against the law of Vietnam, she made the commitment to the police agency to use her influence to advise [the applicant] to give up all activities and his connections with Viet Tan organization. [Father A] agreed that [the applicant’s] activities, including participating in protests in Australia and meeting with the members of Viet Tan organization, are illegal, and to take responsibility for coordinating with local security authorities. in educating and preventing illegal activities of [the applicant].
The working minutes ended at 16:30 on [a day in March], 2023.
This 'minutes has been read to the people whose names are properly acknowledged and signed below.
l have read and confirmed the content of working with the police agency related to my son [the applicant]
(Signed)
[Father A] (Signed)
[Mother A]
RECORD MAKER
(Signed)
[Official A]
·A letter from the applicant dated 8 August 2024 the material aspects of which are as follows:
I came to Australia in early 2013, I was detained at the Immigration Department's temporary camp in [city] for nearly 1 month, then I was transferred to [offshore centre] and stayed there for nearly 3 months before being transferred by the Immigration Department to [another detention centre]. Australia and stayed there for nearly 2 years. In early 2015, I was sent to the community in Sydney by the Immigration Department to live, to integrate into the new community and new life.
I am grateful that Australia has given me new opportunities. In the early days, I tried to learn to drive and after a short time I got my driver's license [in June], 2015 in NSW, with the hope of settling in a free, peaceful, country that promotes justice. I started looking for a job in order to quickly integrate into this new society in Australia. Luckily for me, I had a job as [an occupation]. Even though I had never done it before, I told myself I had to make efforts not to disappoint my second home, Australia.
After getting a job, I voluntarily went to inform the Centrelink staff that I was already working, I expressed my sincere gratitude to Centrelink for helping me in the past, and that I no longer needed this benefits, and use the money for others in need.
At the end of 2016, I went to Perth WA to visit and have decided to stay there to develop myself, and I also met my girlfriend in Perth, my girlfriend also arrived in Australia by boat, her name is [Applicant 2’s name], born on [date], her boat number is [number].
At the end of 2017, we decided to go to the countryside of [Town 1] to settle. I have made constant efforts to develop myself. I learned how to do [a] profession that was foreign to me. After accumulating a lot of experience in [that] profession, we bought [a] shop [in April], 2018. Under the name: [Business 1], at the address [specified]. [In April], 2018, we got married at [a named] Catholic Church in Perth. We have [number of children], [names and dates of birth].
Since the day the [shop] opened. I am truly grateful to our gentle Australian customers. Up to now, our shop has grown and is loved by many residents here, and we have also helped many associations as well as many schools, and created many jobs for many people. For me, it is a reward for this country of Australia that has given me so many opportunities, allowing me to have the peaceful life of today.
[In October], 2023, we have saved enough to buy the house at [an address in Town 1] Western Australia. We are very happy because after many years of continuous efforts we have integrated into this country of Australia. Our lives are now stable, and we have never done anything illegal during the process of building our life in Australia. Then I bought the second house at [another address in [Town 1] WA (July 25, 2024)
·A letter dated 14 August 2024 bearing the letterhead of the [Town 2] Catholic Parish, [details deleted], [Town 2], under the hand of Parish Priest [Priest A], the material aspects of which are as follows:
I was the Parish Priest of the [named] Catholic Community based in [Town 1] from [year] until May 2024 and have known [the applicant] and his family for several of those years as regular parishioners, attending Mass at least once or twice every week.
During that time, I also got to see his family grow with the birth of his and his wife's [children], the first being baptised in our church in [Town 1] [details deleted]. Also, the family are active in our church community contributing financially and in other ways, including often inviting myself and the other priests to their house and so we got to know the family well over the years.
Based on his active practice of the Catholic Faith and ongoing contribution to the Catholic community, it is with certitude that I can support his claim that he is a Catholic.
·A letter dated [in] August 2024 bearing the letterhead of the Vietnam Reform Party, Australia Division, [Location 1], under the hand of Viet Tan Representative/[Location 1 group], [Leader A], the material aspects of which are as follows:
This letter is to confirm that [the applicant] is our member since [2016]. He is an active member of our [Location 1 group].
Currently, he is a member of [specified groups] of Viet Tan/Australia Division/[Location 1 group]. He is also a fund contributor to our efforts.
[The applicant] has involved in numerous projects and grass-root activities in promoting […] human rights and pro-democracy in Vietnam. His views and activities will be subjected to severe persecutions should he return to Vietnam.
The Tribunal has also had regard to:
a.the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Vietnam, 11 January 2022 (DFAT Report);
b.the United Kingdom Home Office (UKHO) Country Policy and Information Note Vietnam: Opposition to the State, August 2023 (UKHO Note); and
c.other country information as set out in the analysis below.
Hearing
16. The applicants appeared before the Tribunal on 29 August 2024 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 Tribunal also received evidence from [Mr B]. Where relevant the evidence of the witnesses is analysed below.
For the following reasons, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law:
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Country of reference:
The applicants claim to be citizens of Vietnam. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Assessment of evidence – general principles:
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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Analysis – evidence and credibility:
The applicant’s oral evidence as to his childhood, youth and young adulthood in Vietnam was consistent with his previous claims; it was uncontroversial, coherent, and plausible and did not run counter to generally known facts, including the country information which is considered in detail below.
The corroborating evidence provided by the applicant as to his religious beliefs, particularly that of [Priest A], establishes to the satisfaction of the Tribunal that he is an observant Catholic, and it would not be unusual for a person in the circumstances to be active in their faith in the manner he has described in evidence.
The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible,[2] and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[3]
[2] President’s Direction, Conducting Migration and Refugee Reviews, para [2.1].
[3] Ibid, para [8.1].
Although the Tribunal notes the applicant’s religious faith, it is, however, of the view that the applicant’s membership of, and support for, the Viet Tan party since his arrival in Australia is the necessary element for resolution of his review and the focus of the review will be upon that element.
The applicant’s oral evidence to the Tribunal in this regard was that he became affiliated with the Viet Tan movement after his arrival in Australia, and that he has become an active member of the organisation within his means and is committed to its aims. He stated that he has established both a public and an online profile as a member of the Viet Tan, and that he fears persecution for this reason if he were to return to Vietnam now or in the reasonably foreseeable future. Overall, and making allowance for the challenges of interpretation, the Tribunal found the applicant’s account of his membership of Viet Tan, and his activities with the group to be credible.
In tandem with the credibility of the applicant’s account of his circumstances is the question of whether he is in fact a bona fide member of the Viet Tan. An assessment of the applicant’s bona fides provides a basis for the Tribunal to determine whether and to what extent his behaviour must be disregarded pursuant to s 5J(6) of the Act.[4] There are two competing considerations which the Tribunal keeps to the front of its mind in this regard. The first is the ease with which a claim to adhere to certain personal beliefs can be fabricated. At the same time, the Tribunal is in no doubt as to the predicament for an individual trying to establish such a claim, given the internal nature of a such beliefs.
[4] Section 5J(6) of the Act provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
In assessing this question, the Tribunal places weight upon the oral evidence of [Mr B]. According to [Mr B’s] evidence at the hearing he has held various leadership positions of the “Vietnam Reform Party, [Location 1 group]” (i.e. Viet Tan),[5] including that of “[Position 1]”.
[5] [Source deleted.]
[Mr B] stated to the Tribunal that he has been an active member of the [Location 1] Viet Tan for “over 20 years” as both a general member, and in leadership positions in the group; he stated that he first met the applicant at interstate “Viet Tan conferences”, as the applicant was then living in Sydney, and that his acquaintanceship with the applicant grew after the applicant moved to Perth and became involved with the [in Location 1].
[Mr B] stated that he has worked “very closely” with the applicant at monthly meetings of the [Location 1 group]. When asked what was expected of the applicant as a member, [Mr B] stated that at monthly meetings members would discuss increasing the movement’s “capacity”, its fundraising, and its membership, and that to his observation the applicant was a regular attendee at meetings and an enthusiastic contributor to the group’s activities.
When pressed as to the process for admission to Viet Tan, [Mr B] stated to the effect that potential members had a period of at least six months’ probation during which they were observed by the organisation so as to gauge their genuineness and dedication to the group’s objectives. [Mr B] stated that the applicant was subject to such a process and was found by the group to be genuine in his motives. He stated that part of the applicant’s role as a member was to try to enlarge the membership of the group through making contacts within the Vietnamese community.
[Mr B] stated that the applicant also became part of the [named group] within the organisation, and as such was [was involved in] dissemination of the group’s message online.
[Mr B] stated that the applicant was particularly active in fundraising efforts for the group, such as through their [specified events and] programmes, and notably through the contribution of his own funds.
When pressed by the Tribunal whether to his (that is, [Mr B’s]) knowledge the applicant had gained a profile as a member of Viet Tan with the authorities in Vietnam, [Mr B] stated that the applicant is not “secret” about his membership of Viet Tan and was “visibly” associated with the group at both physical meetings and online.
[Mr B] stated that Vietnamese diplomatic staff are “everywhere” in Australia and are known to visually observe and record attendees at public Viet Tan events, including the use of audio/visual equipment to “tape” people. [Mr B] stated that to his observation the applicant did not seek to hide his membership of the group, or his support of their aims.
When asked by the Tribunal to comment upon the applicant’s motives in joining the group, [Mr B] reiterated that “everyone” who sought membership was “judged” by the group before admission, including close observation of them both within the group and in the community, and when they were regarded as genuine there was a final meeting where the potential member was questioned by leaders of the group as to their genuineness and motives.
[Mr B] stated:
To commit to Viet Tan is not an easy task [for an individual]; it is risky and is not of any benefit to them…. They come to us because we are a means to carry out what they want to do for the country.
[Mr B] stated that the group was satisfied as to the applicant’s motives and genuineness. He stated that the applicant completed the group’s “lessons” and “tasks” to their satisfaction. [Mr B] stated that, even though the applicant lived in a remote area, he was a regular and valued contributor to the group.
When asked what the consequences for a known member of Viet Tan’s family in Vietnam were, [Mr B] stated that the family risked being labelled as “traitors”, that the family could be “hounded” by authorities, and that family members could be “restricted” from educational and other opportunities.
Based upon [Mr B’s] evidence the Tribunal accepts that the [Location 1 group] of the Viet Tan regards the applicant as a genuine member of the group, and that he shares its values and goals. The Tribunal is satisfied that the applicant’s involvement with the Viet Tan is otherwise than for the purpose of strengthening this claim to be a refugee.
The Tribunal is further satisfied that there is a real risk that not only could the applicant be identified by Vietnamese authorities as an active member of the Viet Tan, but that he has already been so identified.[6]
49. For the sake of completion the Tribunal accepts that the applicant has a reasonable explanation as to why his claims in this regard were not fully developed before the date of this decision, namely that his admission to, and work with, Viet Tan has occurred and evolved over time: s 423A(2).
50. The applicant’s claims for protection will be assessed against this background.
Country information:
Political opinion (actual or imputed)
[6] The Tribunal notes in this regard the contents of the “Meeting Report” set out at para [14] above.
The DFAT Report sets out the following information regarding people who hold an actual or imputed political opinion in Vietnam:
3.49 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. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but 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; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted
Online activists and social media users
3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.
3.62 Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
3.63 Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.
3.64 It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.
The Viet Tan
The UKHO Note records the following in respect of the Viet Tan movement (citations omitted):
8.2.1 The Guardian reported in 2016 that:
‘Vietnam has declared a US-based activist group a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished.
‘The government said the California-based Viet Tan, or Vietnam Reform Party, had recruited and trained operatives to use weapons and explosives.
‘Vietnam has long been sensitive to the activities of Viet Tan, calling the group “reactionaries”, but the announcement carried on state television was the first time it had designated it a terrorist organisation.
‘The police-run ministry of public security said Viet Tan had trained members in militant activities, kidnaps and murders and arranged for operatives to sneak into Vietnam to organise protests and instigate violence.
‘Viet Tan has long been an annoyance for the Communist party that has ruled since the US-backed South Vietnam government fell to northern forces in 1975, leading to an exodus of more than 1 million people, mostly to the US.
‘It was founded by exiled remnants of the deposed Saigon government in 1982 and states as its mission to “overcome dictatorship and build the foundation for a sustainable democracy”.
‘… Despite steadily introducing more liberal social and economic reforms in recent years, the Communist party has a zero-tolerance approach to criticism and has punished detractors harshly.’
8.2.2 ABC News noted that: ‘Vietnamese authorities …sentenced … [Australian citizen Chau Van Kham] to 12 years in prison on national security charges, due to his links with pro-democracy group Viet Tan.’
8.2.3 The Overseas Security Advisory Council (OSAC) security report on Vietnam published in July 2022 noted that: ‘The Vietnamese government has …designated California-based pro-democracy group Việt Tân as a terrorist organization, accusing the group of training members to sneak into Vietnam to organize protests and instigate violence. Among others, authorities in 2019 arrested a Vietnam-born Australian citizen for his work with the group, convicting him of working to “fund terrorist operations.”’

The government of Vietnam considers opposition pro-democracy groups such as Viet Tan to be terrorist organisations. As political opposition parties are illegal within Vietnam,[7] opposition parties are typically based overseas to avoid harassment, arrest and detention.[8] The Vietnam Reform Revolutionary Party (or Viet Tan) is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[9] In 2016, the government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism.[10] Other foreign-based opposition groups including the Brotherhood for Democracy, who campaign for human rights and democracy in Vietnam[11] and who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[12]
[7] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9.
[8] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9; Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
[9] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
[10] Associated Press, 'Vietnam declares San Jose-based Viet Tan a terrorist group' (7 October 2016).
[11] Human Rights Watch, 'Vietnam: Drop Charges Against Rights Campaigner' (10 September 2018).
[12] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
In November 2019, Chau Van Kham, a Vietnamese/Australian dual citizen and a member of Viet Tan, was sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code)[13] and in March 2020 lost his appeal against his 12-year prison sentence for ‘financing terrorism.’[14] Chau Van Kham entered Vietnam on a false identity and was arrested in Ho Chi Minh City whilst meeting with a member of the Brotherhood for Democracy.[15]
[13] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.26.
[14] Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020).
[15] Ben Doherty, The Guardian, 'Jailed Australian democracy activist has 'disappeared' inside Vietnam's prison system', (7 June 2020); Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020); Erin Handley, ABC, ‘Penny Wong raises Chau Van Kham case with Vietnamese President after UN finding he was 'forcibly disappeared'’, (30 June 2022).
Political prisoners are likely to be treated more harshly than ordinary inmates. A 2020 report by local NGO The 88 Project highlights the harsh conditions that the Vietnamese state has imposed upon political prisoners in recent years.[16] The report argues that ‘Vietnam has continued practices amounting to torture of political prisoners’ who have been detained or imprisoned.[17] According to the report, political prisoners are treated as a different class of person than ordinary inmates, receiving harsher treatment ‘which often amounts to torture and inhumane treatment’.[18] A US citizen recently released from incarceration in Vietnam after being charged with political offences also described being mistreated while in prison.[19]
[16] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.3.
[17] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.4.
[18] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.7.
[19] Radio Free Asia, 'Recently Released US Citizen Describes Mistreatment in Vietnamese Prison' (28 October 2020); Orange County Register, 'American released from Vietnam prison speaks out, describes ordeal' (28 October 2020).
The Viet Tan Party is an opposition party run in exile which is considered by the Vietnamese government as a terrorist group.[20] Country information shows the Vietnamese government takes a strict stance against the organisation:
- Two Vietnamese have been convicted of ‘attempting to overthrow the people’s administration’ for among other things having received training and funding from Viet Tan abroad.[21]
- A Vietnamese-American was detained for nine months awaiting trial solely for being a member of Viet Tan.[22]
- 14 members of Viet Tan were convicted to between three and 13 years in prison for ‘subversion of the administration’ by actively participating in and being members of Viet Tan.[23]
Findings:
For the reasons set out above the Tribunal is satisfied that the applicant is a bona fide member of Viet Tan, and that the Vietnamese authorities could identify the applicant as such. The Tribunal is satisfied that were the applicant to return to Vietnam under his own identity, the authorities could identify him and connect him to the activities that he has undertaken in Australia with Viet Tan.
Considering the country information set out above regarding government action against members of Viet Tan, the Tribunal is satisfied that there is a real chance that the applicant will face serious harm were he to return to Vietnam, including but not limited to threats his life or liberty; significant physical harassment; and/or significant physical ill-treatment.
The Tribunal accepts therefore that the applicant has a well-founded fear of persecution in all areas of Vietnam, and that the essential and significant reason for such persecution is the applicant’s political opinion.
For these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The second applicant:
Section 91WB of the Act, as it applies to the second applicant, provides that the Minister must not grant a protection visa to her on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless she applied for a protection visa before the applicant is granted a protection visa. Self-evidently the second applicant has applied for a protection visa prior to the grant of a protection visa to the applicant.
The Tribunal, being satisfied that the applicants are members of the same family unit for the purposes of the Act, finds that the second applicant is a person in respect of whom Australia has protection obligations under s 36(2)(b) of the Act.
Case numbers 1916133 and 1916292
The applicant’s visa application underlying case number 1916133 was invalidated consequent upon the decision of the Full Court of the Federal Court of Australia in DBB16 v MIBP [2018] FCAFC 178 and the application for review cannot be considered.
The application to the Tribunal in case number 1916292 was a duplicate of the application made in case number 1916133 and consequently the Tribunal does not have jurisdiction in the matter.
DECISIONS:
2115792:
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
1910227:
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.
1916133:
The Tribunal sets aside the decision refusing to grant a protection visa and substitutes a decision that the Safe Haven Enterprise Visa application is not valid and cannot be considered.
1916292:
The Tribunal does not have jurisdiction in this matter.
.
Damian Creedon
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.
…

[2024] AATA 4164

8 September 2024

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