2009727 (Refugee)

2009727 (Refugee) [2022] AATA 2618 (16 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009727
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Anne Grant
DATE:16 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 June 2022 at 1:34pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – member of religious human rights activist group – questioned and warned – long period as unlawful non-citizen and work without right – reliance on former partner – brief and general claims and evidence – departure without hindrance and renewal of passport – no political activity in Australia – no contact with group since departing and no claim on ground of religion – not eligible to apply as member of sister’s family unit – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H(1), 5J, 36(2)(a), (aa), (2A), 65, 91WB
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 25 February 2019. The delegate did not interview the applicant. The delegate refused to grant the visa on the basis that they were not satisfied that there was a real chance that the applicant would suffer persecution for reasons relating to imputed anti-CPV political opinion or speaking out against the Vietnamese government. In the alternative, the delegate was not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a necessary consequence of her being returned to Vietnam.
The applicant appeared before the Tribunal on 18 May 2022 to give evidence and present arguments. She was supported by her sister, [Ms A] who also spoke briefly to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a citizen of Vietnam and has provided evidence of this by providing her passport to the Department and to the Tribunal. Her protection claims will be assessed on the basis that Vietnam is the country of her nationality and the receiving country.
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Vietnam, there is a real risk that she will suffer significant harm.
The applicant arrived in Australia [in] September 2010 on a visitor visa which ceased on 21 December 2010. She then remained in Australia without a visa until she was granted a Bridging Visa C on 12 March 2019. She applied for the protection visa on 24 February 2019.
The applicant’s written claims were brief and general. She claimed that she is in search of freedom and democracy and human rights. She claimed she has found this in Australia. She claimed there is no freedom of speech in Vietnam, and that the media is censored and that the government of Vietnam is oppressing its citizens. She claimed that she cannot return out of fear of personal harm and persecution for speaking up against the government of Vietnam, because the Government of Vietnam is prepared to use all means to silence and annul opposition. She claimed she did not seek help in Vietnam ‘for fear of reprisals.’ She did not try to move within Vietnam because there is ‘nowhere to hide, everywhere is the same.’ She claimed that she would be in trouble with the government of Vietnam, and probably in jail because she has dared speak against them and also by applying for a protection visa.
At hearing, the applicant explained that she met a man when she arrived in Australia who was an Australian permanent resident. She lived with him for several years. She believed (and he told her) that he was going to apply for a partner visa for her but eventually she realised that he was just using her and she left him. She now lives with her sister.
The applicant gave evidence that she wrote the application for protection herself though she had assistance to translate it into English. When asked to tell the Tribunal in her own words why she fears returning to Vietnam, she gave evidence that it was because Vietnam has no human rights and no freedom.
The applicant confirmed that she came to Australia when she was [Age] years of age. She was (and is) single and with no children. The applicant said she worked in her own small [business] in Vietnam. She said she came to Australia to visit her sister.
The applicant acknowledged that she was in Australia many years before she applied for protection. She confirmed that for some time she was living with a man in [Suburb], who she met when she arrived in Australia. She first said that she met him when they were working together [at a Workplace], though she later said that he was actually the person who suggested she work [at the Workplace]. The Tribunal noted that she did not at that time have a visa that allowed her to work in Australia. She responded that when she met him he suggested that they work together, and later they moved in together. It was put to the applicant that the fact that she did not have a visa which permitted her to work in Australia caused the Tribunal some concern because, like overstaying her visitor visa for several years, it was another example of her not having respect for Australia’s migration laws. The applicant repeated that her former partner was supposed to apply for a partner visa on her behalf but he never did.
When asked why she left it so long to apply for protection, the applicant repeated that she followed the man she lived with and then he didn’t care for her properly. He said he was going to do the necessary documents for her, for a partner visa. Because he said that, she followed him.
It was put to the applicant that it was her own responsibility to ensure she had a visa, particularly since she had previously visited Australia and was aware of the need for a visa to visit and stay in Australia. The applicant acknowledged this, but said that she trusted him. She said that her former partner is a permanent resident of Australia. The applicant claimed not to know that she should have departed Australia. When asked what right she thought she had to stay in Australia in the years before applying for protection, she said she didn’t know, but she liked it in Australia. She did not mention a fear of returning to Vietnam, only stating again that she was in a relationship for some of that period and ‘following’ that man.
The applicant was asked to explain what she was afraid of in Vietnam. She responded that sometimes ‘they’ asked her to come in. She was asked if anything bad happened to her. She said she was with a group. She named the group [Group name] (Tribunal spelling) but the interpreter did not recognise the words and the applicant was unable to provide many other details which would enable the group to be identified. The applicant said they were a Catholic or Christian religious group who were involved in activism for human rights. When asked to give more information about the group and her involvement with it, the applicant responded that she was tired. She later explained that this group was concerned to protect human rights. She was just a follower of the group. She saw the work they were doing, liked it and followed them.
Despite being prompted to do so, the applicant did not give any details about her involvement with or activities whilst associated with the group. She said she was just a follower, not an organiser. One time, before she first came to Australia, the Government invited her to come in, questioned her, warned her not to continue her involvement and then released her a few hours later. She described this as ‘annoying her’ and said that she worried they would annoy her again in future. When asked to give details about what happened, the applicant repeated that she is tired and nervous. She said she has had covid and since then she is often tired. The Tribunal ensured that the applicant was given time to answer questions to take account of her feeling tired and nervous. This did not appear to assist her to be forthcoming with details about her problems and activities in Vietnam.
The applicant said in response to direct questions aimed at clarifying her claims that she was never arrested but she was questioned by the police once about her involvement with the group. They kept her for a few hours. Then they released her and told her not to undertake any activism about human rights and warned her that if she did they would put her in custody. This was one about one year before she first came to Australia. (The applicant first came to Australia [in] February 2009 and departed Australia [in] May 2009.) This harassment only happened on one occasion.
The applicant said that nothing else happened to her in Vietnam which caused her to be fearful. When asked why she was afraid to return to Vietnam now, the applicant said that in Vietnam, you have no freedom of speech, you can face threats. The Tribunal noted that she had renewed her passport since departing the country and that this suggests that the government of Vietnam was not interested in her. The applicant agreed and said that she did not think that the authorities in Vietnam were interested in her.
The applicant gave evidence that she had been in touch with members of the group since she had been in Australia, but only once, shortly after she came to Australia. She then lost contact with them. The last contact she had with them was about one month after she came to Australia. Nonetheless, the applicant claimed that she would again be involved with the group if she returned to Vietnam because they stand up for people’s human rights. The applicant said that she had not joined any political activity regarding Vietnamese Human Rights whilst in Australia.
The applicant gave evidence that she has family living in Vietnam. She has [brothers] and [sisters] in Vietnam. They are all living in the same area of Vietnam. When asked if any of that family had problems or conflict with the government of Vietnam, she responded that they had not. She said that she heard that one time, someone came to ask about her (the applicant) after she had come to Australia. They went away because only her younger sister was home, and have not been back. She assumed this was the government, checking on her.
When asked what she feared would happen to her if she returned to Vietnam, the applicant said she was afraid because they have no human rights and because she had been with that group, that the government would do ‘things’ to her. She said that they might arrest her. When asked what human rights in particular are of importance to her, the applicant responded ‘citizen rights.’ She said that people in Vietnam do not have freedom of speech, or real freedom of choice in elections, like in Australia.
The Tribunal discussed with the applicant concerns that the harm she had experienced (being questioned and warned once by the government and released after a few hours), even if that were to happen again, would not amount to causing her serious or significant harm. She responded that they could also arrest her if she does activity with the group again.
The applicant’s sister (‘[Ms A]’) was given an opportunity to give evidence and make a submission. [Ms A] was sworn in and confirmed that she is a permanent resident and citizen of Australia who arrived here about 40 years ago as a refugee. [Ms A] said that her sister was involved with a Christian group, and because of that she was invited to ‘come in’ by the authorities and that’s why [Ms A] asked her to come here. Then when she came to Australia, [Ms A] said the applicant met a man who pursued her and asked her to stay with him. She followed him for many years and he promised to do the papers for her but he didn’t do it.
The applicant’s sister gave evidence that the applicant has a full time job now but if she goes back to Vietnam, she cannot live because like some people in ‘that group’ she might get arrested.
The Tribunal discussed with the applicant the concerns it had that her visa history suggested that she did not have respect for Australian migration law which might impact on whether the Tribunal finds her to be a truthful witness. The applicant said she was relying on her former partner and was not aware of what she needed to do.
The Tribunal also discussed its’ concern that the harm that she fears does not involve serious or significant harm, and that given how long since that single incident occurred, (at least 12 or 13 years) the renewal of her passport (which suggests she is of no interest to the Government of Vietnam), her lack of any substantial or adverse profile in the years after that one incident, and the fact that no one in her family has ever had any problems with the Government of Vietnam (either because of her involvement with the group or any other reason), that there did not seem to be a real chance or a real risk that she would face any harm now or in the foreseeable future if she returned to Vietnam.
The applicant responded that no one else in her family is involved with any activist group and that is why they have had no problems with the Vietnamese government. She repeated that she heard that one time, not long after she came to Australia in 2010, someone came by the family home making enquiries about her but they didn’t leave any identification. The applicant claimed that if she goes back and resumes her involvement with the group, (which she would because there are no human rights in Vietnam) she feared that the Government would again annoy or arrest her.
The Tribunal asked the applicant if she had given the Tribunal all of the information and evidence she wanted to do about her claims for protection. She replied no and was asked to please make sure she told the Tribunal all about her claims. In response, the applicant said that she likes the way things are in Australia, it’s a good country. Australians have freedom of movement, activity and work. People are supported by their government here.
Consideration of Evidence and Claims
The applicant did not give evidence freely to the Tribunal, even when asked and given an opportunity to provide detail about the substance of her claim for protection. Some allowance has been made for her being nervous and perhaps for being wary of authority, but even so, her evidence about her involvement in ‘the group’ was extremely vague, as was her claim that the Government of Vietnam ‘annoyed her’. Efforts made after the hearing to identify a religious group in Vietnam which is or sounds like [Group name] were unsuccessful. Because the applicant gave the Tribunal so little information about ‘the group’ with which she was involved, the Tribunal cannot be sure which Christian group the applicant claimed to have followed in Vietnam. The applicant has provided no information or evidence about what activities she had undertaken with the group, or about their beliefs beyond being Christian and ‘for’ human rights. Despite claiming to support claims for human rights in Vietnam, she could not name or describe those human rights, apart from freedom of speech and freedom to choose your government.
The Tribunal accepts that the applicant may have had an expectation that her former partner would sponsor her or apply for a permanent visa on her behalf. However the Tribunal does not consider that this explains why she remained in Australia for so many years without holding a legal visa or applying for protection or why she remained in Australia working illegally for so long.
The Tribunal does not accept the applicant’s evidence that she ‘didn’t know’ she had to apply for a visa or that she couldn’t legally work in Australia. Even allowing for a manipulative and deceptive ex-partner, the applicant bears the responsibility for ensuring that she complied with Australia’s laws and visa requirements and knew that she needed a visa, because she was hoping for her partner to apply for one on her behalf. The Tribunal has taken into consideration that the applicant had entered and departed Australia previously in compliance with her visa conditions, and that her sister arrived in Australia as a refugee, albeit 40 years ago. The Tribunal considers that the applicant’s decision to overstay her visa and remain for 10 years without applying for protection is a factor which should be taken into consideration and weighs against her having a genuine fear of serious or significant harm due to her political opinion or for any other reason in Vietnam.

General country information, including the most recent Department of Foreign Affairs and Trade (DFAT) report on Vietnam[1] suggests that conduct of the State such as that described by the applicant is plausible. Particularly where political or human rights activism is undertaken by religious groups, the State security organs sometimes arrest and harass participants in such organisations and in other groups involved in political activism, and in protests.
3.17 The extent of difficulty that a religious group could expect to face from authorities (for example, refusal of registration, questioning or disruption of activities) can depend on where they are located. Many claims of Government interference are at the hands of local and provincial authorities rather than national authorities. Attitudes and policies can differ between authorities.
3.18 Many incidents relate to religious groups that are politically active in local land or environmental disputes. It can be difficult to distinguish between religious and political claims. The distinction is not necessarily apparent in the everyday experiences of religious adherents or the authorities, either or both of whom may see religious activity as inherently political.
3.19 There are several high-profile examples of religious figures who have advocated for religious freedom and been imprisoned. Such cases are fewer in recent years but those who have been arrested and imprisoned in the past might still be under surveillance by authorities or summoned for regular interrogation. DFAT understands this is generally limited to questioning and surveillance and not violence.
[1] Country information Report, Vietnam 11 January 2022
The applicant did not claim that she had been persecuted in Vietnam due to her faith, that she had been prevented from following her faith or that she would be persecuted due to her faith or prevented from following her faith in Vietnam. Indeed, she was not able to reliably identify the faith of the group that she claimed to have followed – describing them as Catholic and later changing that to a more generic ‘Christian.’ For the purposes of considering her claims, the Tribunal accepts that the applicant is a Christian.
As may be noted from the country information extract above, where religious organisations are politically active, their members could potentially face some interference, questioning and surveillance. Otherwise, the Tribunal notes and accepts DFAT’s assessment:
3.20 Pew Research conducted a study in 2016 of global restrictions on religion that included analysis of ‘social hostility’ against people of different religions. That report placed Vietnam as one of the countries with the lowest levels of social hostility, along with other East Asian countries. Several in-country sources told DFAT that religious intolerance between people of different faiths is not an everyday problem in Vietnam.
3.21 DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, but the situation differs from place to place. Those in large cities are particularly free to practise. Adherents associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.
In relation to the applicant’s general claims about the lack of human rights in Vietnam, the Tribunal accepts that the Communist Party of Vietnam controls and limits citizens’ right to criticise the government, to protest, and to freely express opposing political views, such as a preference for a more democratic system of representation. The Tribunal has considered the information in DFAT’s most recent report referring to treatment of persons with oppositional political opinions in Vietnam, including on human rights issues:
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
The Tribunal has taken into account the general country information as discussed above and which could be characterised as being consistent with the types of harm the applicant claims to have experienced in Vietnam, generally and which she claims to fear now or in the foreseeable future. However, the capacity of the Tribunal to accept the applicant’s claims is affected by the lack of detail and coherent evidence she was able to provide about her beliefs, her experiences, the ‘group’ she followed, and her reasons for delay in seeking protection in Australia. Having carefully considered her evidence and claims, and after making some allowance for her nerves and claimed fatigue, the Tribunal has decided to give the applicant the benefit of the doubt and accept some of her evidence as below indicated, though the lack of coherent, credible and detailed information about various aspects of her claims will affect the weight to be given to that evidence and in assessing whether there is a real chance that she will face persecution now or in the foreseeable future in Vietnam.
The Tribunal accepts that the applicant holds a political view which supports the recognition of human rights generally in Vietnam, and that she may have briefly been involved with a group agitating for greater recognition of human rights in Vietnam in around 2007 or 2008. Although it has doubts about her claim to have been questioned once for several hours, (given her failure to describe any actions on her own part which might have drawn her to the attention of authorities in any way, (such as attending protests)) for the purposes of considering her claims, the Tribunal is prepared to give the applicant the benefit of some doubt and accept that she was invited in for questioning on one occasion in 2007 or 2008, warned about her involvement with human rights activists and then released after three or four hours.
The Tribunal has taken into consideration the applicant’s evidence that she remained in Vietnam for at least a year after that incident and (as she confirmed) then travelled to and returned from Australia in 2009 with no official hindrance. She was then allowed to depart again in 2010. Since living in Australia, the applicant has renewed her passport without difficulty. After taking all of these matters into consideration, the Tribunal does not accept that the applicant has a profile as a political or religious activist in Vietnam. The Tribunal does not accept she has established to any level of satisfaction that a person from the Government was looking for her again on one occasion after she had left the country. If indeed the person was the Government as she claims, they could be expected to know of her departure from Vietnam – and if she was in fact a person with an activist profile as she claims, it would be expected that her movement in and out of the country and even the issuing of a new passport would not have been possible or without incident.[2]
[2] From DFAT’s most recent report: 5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
The applicant claims that she would again ‘follow’ the group and support greater human rights in Vietnam if she returns there. The Tribunal has serious doubts about the level of the applicant’s actual involvement in political activism in the past, given her vague description of ‘following’ ‘that group’ and her lack of capacity to explain her beliefs beyond the desire for ‘civilian rights’, freedom of speech, and the right to have democratic elections. Given her lack of detailed evidence about her past involvement and even about the beliefs of the group she previously followed, the applicant’s evidence about her commitment to rejoining the group and agitating for change in the human rights situation in Vietnam if she returns was not compelling. As noted above, it is accepted that she generally holds a view that Vietnamese people should have more and greater human rights than they do, but given the very low level of her past activism, her lack of any involvement in political agitation from Australia and her lack of any contact with members of her former ‘group’ in Vietnam since one month after arriving, the Tribunal does not accept that the applicant would actually undertake human rights activism in Vietnam at any level which would draw her to the attention of the authorities when and if she returns to Vietnam, now or in the reasonably foreseeable future.
However, despite not being satisfied that the applicant would undertake human rights activism in Vietnam, the Tribunal has also considered whether, if the Tribunal is wrong in finding that the applicant would not undertake human rights activism in Vietnam and the applicant did resume involvement with the group she described and as she claims she will, there is a real chance that she will suffer serious harm. Having considered her evidence overall, the Tribunal is not satisfied that her involvement would be at any level above being a ‘follower’ as she was in the past. The Tribunal considers that such activity not be at a level which would potentially draw her to the attention of the government of Vietnam beyond having a minor interest in her as they did in the past. In that event, there is a real chance (low but, in light of the country information, not remote) that she will again face some low level ‘annoyance’ and face questioning and warnings, as she did many years ago. The Tribunal considers that given her low profile, there is a remote chance that she will face arrest and detention.
The Tribunal considers that being questioned, warned and released after a few hours as the applicant has described is low level harm. The Tribunal finds that the harm previously experienced by the applicant and which she would face a real chance of experiencing if she continued her previous practices now or in the reasonably foreseeable future does not involve serious harm. The Tribunal is therefore not satisfied that there is a real chance that the applicant will suffer serious harm, (that she will be arrested, detained, or assaulted) due to her political opinion now or in the reasonably foreseeable future if she returns to Vietnam.
Although the applicant did not claim to fear persecution due to her faith (and indeed, she was vague about her faith group) she did claim that the group she followed to advocate for better human rights in Vietnam was a Christian religious group. The Tribunal has considered whether there is a real chance that the applicant will be persecuted as a Christian in Vietnam.
The Tribunal refers to the country information included above and has taken into account the very general description given by the applicant of her faith and failure to claim that she has ever been persecuted because of her faith. As noted earlier, the country information suggests that Christians do not face persecution generally in Vietnam unless they engage in public protest and advocacy on behalf of their faith community or the Vietnamese community generally for an improvement or recognition of human rights or in pursuit of some other ‘political agenda’ (as perceived by the Vietnamese authorities.) The issue of persecution on the basis of your political opinion and activism has been considered above. In relation to whether there is a real chance that the applicant will be persecuted in Vietnam due to her Christian faith, the Tribunal considers that the applicant has not established that she has ever experienced any past persecution due to her faith, and the information and evidence before the Tribunal does not establish that there is a real chance that the applicant will suffer persecution in Vietnam because of her faith as a Christian now or in the reasonably foreseeable future.
No other claims arise on the information before the Tribunal. The Tribunal has considered the applicant’s claims individually and cumulatively. Even considered cumulatively, the Tribunal finds that there is not a real chance that the applicant will suffer persecution in Vietnam because of her political opinion, political activism or her faith now or in the reasonably foreseeable future. The applicant does not have a well-founded fear of persecution in Vietnam.
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
The Tribunal has found that there is not a real chance that the applicant will suffer persecution in Vietnam due to her political opinion, political activism and/or her faith. In reaching that conclusion, the Tribunal found that although there was a real chance that she may face questioning, warning and release in the future (as she did once in the past) if she chooses to again follow the same group who advocate for human rights in Vietnam, such harm would not involve causing the applicant serious harm. The Tribunal has found that there is not a real chance that the applicant will face arrest, detention or assault now or in the reasonably foreseeable future due to her political opinion, activism or faith if she is returned to Vietnam.
Noting that the real risk test is the same as the real chance test, the Tribunal therefore turns to consider whether being questioned, warned and released by the Government of Vietnam if she is returned to Vietnam would satisfy the definition of causing the applicant ‘significant harm’ as defined in s.36(2A).
The Tribunal finds, based on the information and evidence before the Tribunal, that there is not a real risk that the applicant will suffer arbitrary deprivation of her life in Vietnam nor is there a real risk that she will be subjected to the death penalty if she is returned to Vietnam.
The act of being questioned for a few hours and then released with a warning is not at a level which satisfies the definition of torture, because it does not involve severe pain or suffering (physical or mental) being intentionally inflicted on the applicant for any purpose as described in s.5. The Tribunal also finds that it does not involve an act or omission which could reasonably be described as intentionally inflicting severe pain or suffering on the applicant, or intentionally inflicting pain or suffering which could reasonably be regarded as cruel or inhuman in nature. The Tribunal finds that the real risk of harm does not involve cruel or inhuman treatment or punishment. Finally, the Tribunal also finds that temporary questioning, warning and release of the applicant would not satisfy the definition of degrading treatment or punishment as it would not be an act or omission which causes and is intended to cause the applicant extreme humiliation which is unreasonable.
The Tribunal concludes therefore that there is not a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of her being returned to Vietnam, for any reason. The applicant’s claims have been considered cumulatively and individually and the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Vietnam, there is a real risk that she will suffer significant harm.

The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
During the course of the hearing, the applicant’s sister confirmed that she is a citizen and permanent resident of Australia and that she holds a protection visa, having arrived in Australia by boat as a refugee around 40 years ago. Assuming for the purposes of this discussion that the applicant’s sister holds a protection visa of the same class as that applied for by the applicant, the Tribunal considered whether the provisions of s.36(2)(b) or 36(2)(c) were relevant in this case (that is, whether the applicant satisfies s.36(2) on the basis that she is a member of the same family unit as a person (her sister) who satisfies s.36(2)(a) or (aa) and who holds a protection visa.)
S.91WB provides that where a person (the ‘family applicant’) applies for a protection visa and is a member of the same family unit as a person who has been granted a protection visa, ‘despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.”
The applicant’s sister was granted a protection visa decades ago, according to her evidence. In that event, s.91WB applies and the applicant cannot be granted the protection visa on the basis that she is a member of the same family unit as her sister who holds a protection visa.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as any other person who satisfies s 36(2)(b) or (c) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
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.
…

5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.

[2022] AATA 2618

16 June 2022

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