2010831 (Refugee)

[2021] AATA 2129

2010831 (Refugee) [2021] AATA 2129 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010831

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Senior Member Dr N Manetta

DATE:6 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a new decision under s 415(2)(d) of the Migration Act 1958 that the applicant satisfies the criterion in s 36(2)(aa).

Statement made on 06 May 2021 at 12:23pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – anti-government protester – attended Viet Tan protest – victim of police brutality – complementary protection – photos and commentary on social media – credibility issues – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 415

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review by [the applicant] of a decision made by a delegate of the Minister for Immigration on 25 June 2020 to refuse to grant him a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (“the Act”).

2. [The applicant] applied for the visa on 31 October 2019. The delegate considered the applicant’s claims in some detail.  I have read the delegate’s decision carefully.

3. [The applicant] appeared before the Tribunal on 22 October 2020 and 3 November 2020 to give evidence. His representative, [Ms A] (a registered migration agent), was in attendance.  The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  I have considered the written submissions filed on [the applicant]’s behalf and the oral submissions made by [Ms A] and [the applicant].

   TRIBUNAL’S TASK

4. My task is to decide whether to affirm the decision under review or whether to set it aside. If I set aside the decision, I may substitute a new decision: see s 415(2)(d). The Tribunal’s proceedings are known, technically, as a de novo hearing on the merits. That is, I must decide the matter afresh on the evidence adduced before me. I must reach the correct or preferable decision on that evidence. This implies that I may set aside the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding the absence of any discernible error in the decision under review; equally, I may affirm the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding an error in the delegate’s reasoning.

   STATEMENT OF CONCLUSION

5. I have concluded that [the applicant] is not a refugee to whom Australia owes protection obligations for the purposes of s 36(2)(a) of the Act; but I have concluded that [the applicant] meets the criterion in s 36(2)(aa) of the Act; that is, I am satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant]’s removal from Australia to Vietnam, there is a real risk that he would suffer “significant harm”, as defined.

6. To give effect to these conclusions, I shall set aside the decision under review and substitute a new decision that [the applicant] satisfies the criterion in s 36(2)(aa) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. I first set out [the applicant]’s evidence and then my findings of fact.  I shall then apply the relevant statutory provisions to the facts as I have found them to be.

   [The applicant]’s evidence

8. I accept that [the applicant] was born in [Province 1] of Vietnam on [date].  He is now [age] years of age.  Both his parents are still alive and live some [number] kms from Ho Chi Minh City. He has one older brother and one younger sister.

9. His primary school education was completed in [Province 1], and his secondary school education in [Province 2] according to his protection visa application. His post-high school vocational diploma was completed in Ho Chi Minh City. [The applicant] finished high school with what he described as average marks.  He went to a college first, and then on to university, he said. His parents were well enough off financially to meet his tuition costs and living expenses. [The applicant] gave evidence that he studied [Field 1] in a pre-university college and then studied [Field 2] at university. He attended night classes at university but did not receive a qualification because he could not complete the course given his work commitments.  I accept this evidence.

10. I accept that in the years from 2011 to 2015, or thereabouts, [the applicant] first worked as an [occupation] and then worked for a company known as [Employer 1], which I understand from his evidence is equivalent to a [well known Australian] store.  His application for a visa records that he was in fact a salesman for this company.  He said in his evidence that he was involved in purchasing goods and supervising contractors.  Whatever his exact position and duties, I accept [the applicant] worked with this company. 

11. After that he worked with a company called [Employer 2] and in 2016 he moved to a firm known as [Employer 3]. He stayed with that firm for one and a half years, he said. I understand that he then obtained a better-paid position with a company called  [Employer 4] in August 2017. From his evidence I understand that he was paid twice as much as he had been earning at [Employer 3].  I accept this evidence.

12. From this history as given by [the applicant], I infer that he has obtained useful qualifications that have stood him in good stead, and that he has achieved progressively better-paid positions.  I note that his application for a protection visa shows that he travelled abroad on holiday in April, May, June and October of 2018.  From this, I infer he was doing at least reasonably well in Vietnam.

13. [The applicant] gave evidence, which I accept, that he was raised with no religious outlook or faith as a boy. His parents were adherents of Buddhism, but he did not become a Buddhist.  I accept that evidence.

    Protest activities

14. [The applicant] gave evidence before me concerning his involvement in certain protest activities. He gave evidence that he first joined a protest against the Government opposing its decision to let land to the Chinese government. He opposed the lease of land to create a special economic zone for Chinese interests, he said. When I asked him why he opposed such a zone, he said that on a visit to [country], he had seen similar zones and observed that the let land no longer belonged to the local people.

15. [The applicant] said that he attended a very large protest on 10 June 2018 in Ho Chi Minh city. He attended the protest, he said, with his girlfriend and other friends. He was arrested, he said, although his girlfriend and friends were not.  He said he was arrested because he was holding a placard. He said that on that occasion he was beaten because he would not sign a confession and he was kicked. He was kept in isolation and then released. He then returned to work full-time.

16. [The applicant] gave evidence of a summons he received in April 2019. The summons was in evidence before me. The summons bears his family’s home address in [Province 1] and not his Ho Chi Minh City address. [The applicant] explained to me that the envelope in which it was delivered had his more current address written on the front.  When I asked how that could be, he answered that he had informed the authorities of his new address in Ho Chi Minh City but had not formally registered the change. He said that the summons properly referred to his registered address, although it was delivered correctly in the post to Ho Chi Minh City. 

17. The summons required [the applicant] to attend an interview at a police station in his home province of [Province 1] on [a date in] April 2019 at [time].  The reason for his attendance is given, in the translated version, as “clarify the case of opposing the state”.  [The applicant] had to travel to [Province 1] from Ho Chi Minh City. He obtained leave from his employer to attend. He said he attended the police station. He said police officers gave him a document requiring him to acknowledge that he had been spreading propaganda against the Government through social media. He said that he declined to sign it on the basis that he was merely exercising his right to freedom of speech.

18. [The applicant]’s me was that after he declined to sign the document, he was severely assaulted by the police. He said he was hit with a chair.  He sought to avoid a blow to his head by raising his right arm, and his arm was injured by the chair. After that, he was beaten. The police officers took a break in the middle of the day, he said, and resumed their assault in the afternoon.  They hit him many times he said. [The applicant] said they took hold of his head and knocked it against a wall. They did so many times, he said. Sometimes they would lightly knock it while on other occasions, they would forcefully push his head against the wall. At one point, he screamed at them to stop, he said. They indicated they would stop when he agreed to sign the document. [The applicant] said that at some point in the afternoon he lost consciousness.  He remembers nothing after that point.  He said he woke up in the local hospital in [Province 1].  

19. His evidence was that his girlfriend attended the hospital in [Province 1] and arranged for his transfer on the same day to [Hospital 1] in Ho Chi Minh City. He understands that the police notified his girlfriend that they had taken him to hospital. They retained his telephone and extracted her contact details.  As he and his girlfriend were regularly in contact with one another, [the applicant] surmises that the police were able to guess that she was his partner. [The applicant] said he was treated in the Emergency Department of the local hospital before travelling to [Hospital 1].

20. [The applicant] said his girlfriend was concerned that he should receive better care, and so she took it upon herself to arrange his admission to [Hospital 1] in Ho Chi Minh City. Initially, I understood [the applicant]’s evidence to be that his girlfriend drove a vehicle to [Hospital 1], but he then indicated, as I understand his evidence, that she hired an ambulance and got him to the Hospital that way. Ho Chi Minh City, [the applicant] confirmed, is some [number] km away from [Province 1] and a [number]-minute drive.

21. [The applicant] was hospitalised for some 12 days in [Hospital 1]. He said that it was left up to him how long he stayed; and, as his girlfriend wanted to ensure that he was properly looked after, she insisted that he stay on.

22. [The applicant] said that after he was discharged, he received a further summons from the police after he continued to share critiques of the Government on social media. The summons required his attendance at the [Province 1] police station on [date] July 2019.  He knew he was being monitored, he said. He said he was afraid to go and ignored the summons. He applied in July 2019 for a visitor visa to come to Australia.  He received a third summons dated [in] August 2019 requiring his attendance at the [Province 1] Police Station on [date] August 2019. [The applicant] left Vietnam [in] August 2019.  He flew to Melbourne Australia from Vietnam. No attempt was made to prevent his departure from Vietnam.

23. [The applicant] arrived with a tour group and stayed in Melbourne for one and a half days only.  He then moved to Sydney for two days. After that, he moved to Alice Springs and began work.  [The applicant] organised his Alice Springs job while in Melbourne, that is, as soon as he had arrived in Australia.  From Alice Springs, [the applicant] flew to Sydney to join a protest against the Vietnam government organised by the Viet Tan in late September 2019. There were in fact two protests [the applicant] attended, according to his evidence, namely, on September 27^th and 29^th. He joined these protests, he said, in order to share his concerns about his country. He then left Sydney and came to Adelaide where he said he knew a number of people. He lodged an application for a protection visa through his migration agent, [Ms A], at the end of October.

    Findings of fact

24. The foregoing paragraphs include the essence of [the applicant]’s evidence to me in respect of his interactions with the police in Vietnam. One critical question I must decide is whether I accept that version of events as true. In reaching my conclusion of fact, I believe I should give [the applicant] the benefit of a reasonable doubt, and I have done so.

25. Having given [the applicant] the benefit of a reasonable doubt in respect of his evidence, I am nevertheless of the opinion that [the applicant] did not suffer the police beating he claimed he suffered in Vietnam [in] April 2019, and I do not accept the genuineness of the summonses that he claimed he received, all three of which were in evidence before me.  I do not know whether [the applicant] was admitted to [Hospital 1] in Ho Chi Minh City [in] April 2019, but if he was, the admission was not as the result of a police assault.

26. I now set out my reasons for these findings. So far as the summonses are concerned, there are several aspects that cause me to doubt their genuineness. The documents before me purport to be police summonses. I note they are hand-written except for certain pre-printed parts. It struck me as strange that some of the information which was hand-written would require inclusion in many summonses. For example, the place of attendance is handwritten as “[Province 1] provincial police” in each summons, but one would have thought that this information would be pre-printed on the form to save the clerk or officer the trouble of writing it out each time. In addition, a hand-written part of each summons requires the attendance of [the applicant] before “[a senior officer] of [Agency 1] Colonel [B]” and this Colonel has signed the summons and affixed a stamp with the same information.  Again, it seems odd that Colonel [B]’s name and position are hand-written and not pre-printed on the form. 

27. More significantly, in no summons does the address of the police station in [Province 1] appear.  Obviously, a proper form would need to indicate exactly where the attendee is intended to present himself or herself.  That would be an obvious part of any pre-printed form. In the top left-hand corner there is a reference to “[Province 1] Province’s Police” and its “Investigation Agency” but no address, phone number, or any other contact details are given. It is a very deficient form from an administrative perspective.  That leads me to doubt its authenticity.

28. Turning now to [the applicant]’s version of events [in] April 2019, I note that [the applicant] was quite clear in his evidence to me that he was assaulted in the morning, that a break was then taken, and that he was further assaulted in the afternoon.  At some point in the afternoon, [the applicant] lost consciousness and was taken to the local hospital by the police.  His girlfriend was contacted by the police. She then attended the hospital. [The applicant] was initially treated in the local hospital. And then [the applicant]’s girlfriend arranged for his transportation to Ho Chi Minh City, [number] kilometres away, in an ambulance that she privately hired.

29. [The applicant] provided to the Tribunal a discharge summary from [Hospital 1]’s Orthopaedic Department which, if it is a genuine document, records his admission to the Hospital [in] April 2019 at 1800 hours (or 6 PM). All the events I have mentioned occurred on the same afternoon on [date] April 2019. I bear in mind [the applicant]’s evidence that, depending on traffic, a trip to Ho  Chi Minh City from [Province 1] would take approximately [number] minutes by car.

30. There is, in my opinion, a very strong implausibility in the sequence of events described to me by [the applicant].   At some point in the afternoon, but not earlier, [the applicant] lost consciousness and was dropped off at the hospital in [Province 1] by his police interrogators.  By 6 PM that same day, that is, in a matter of hours only, he had been admitted to [Hospital 1] in Ho Chi Minh City. I note that the hospital authorities in [Province 1] did not arrange for [the applicant]’s transfer to [Hospital 1]. Rather, [the applicant]’s evidence was that his girlfriend hired a private vehicle after his initial treatment in the Emergency Department of the [Province 1] Hospital.  She arranged [the applicant]’s transportation to [Hospital 1] to ensure he had better care.  I do not believe that the timing of this sequence of events is plausible.  On [the applicant]’s evidence, events must have moved very quickly indeed in [Province 1]. In just a matter of hours, he was dropped off and treated in the emergency department of the local hospital, and his girlfriend then managed to hire an ambulance and secure his transfer and admission to [Hospital 1], some [number] kms away.  This timeline is, in my opinion, very unlikely.

31. I also bear in mind that [the applicant] was, on his evidence, seriously injured as a result of a vicious assault upon his head. He lost consciousness, he said, and woke up in hospital, which suggests a loss of consciousness for some considerable time. I am doubtful that the hospital authorities in [Province 1] would have authorised his release at the insistence of his girlfriend if [the applicant] required hospitalisation.  I note that [the applicant] was indeed hospitalised, on his evidence, in [Hospital 1] for some 12 days. I do not accept that the Hospital would have allowed him to stay as long as he wished, as [the applicant] suggested to me in his evidence; but even when some latitude is allowed for a longer stay than is strictly required, at least a significant part of [the applicant]’s stay in hospital must have been required for treatment on his evidence.  I note further that the hospital discharge form gives [the applicant] a further 10 days’ medical leave after discharge.  In these circumstances, [the applicant] must have been severely injured, because he was assessed as needing 10 days’ medical leave to recuperate fully (after a 12-day hospital stay).

32. I further note that despite the vicious assault [the applicant] said he had received, he began, rather unwisely, further agitation against the Government via social media soon after his discharge from hospital. I accept that a person may have very strong political views, but I also think that it is odd that a victim of such a severe assault would immediately recommence anti-Government posts on social media.  [The applicant], on his evidence, had been hospitalised after losing consciousness and must have appreciated that the unlawful assault he had suffered might easily have resulted in a critical brain injury.

33. In addition, I find it strange that [the applicant] began to look for work immediately upon his arrival in Melbourne, then travelled to Sydney, and from there moved to Alice Springs for work. I note that he then chose to fly back to Sydney in order to participate in the Viet Tan protests in Sydney. All this occurred before he claimed protection through his migration agent at the end of October 2019. This also makes little sense. If [the applicant] were fleeing Vietnam, I believe he would have begun the process for a protection visa soon after his arrival.  He chose instead to investigate work opportunities.  He said in his evidence to me that he needed money; but if that is true, his decision to fly to Sydney from Alice Springs to attend a protest makes little financial sense. The protest could hardly effect any practical change in Vietnam.  [The applicant] might have strong political views, but spending money flying from Alice Springs to Sydney in order to attend a protest is a financially imprudent decision for a person who has limited means. 

1. I also note that [the applicant] was not stopped in Vietnam from leaving the country. [The applicant]’s evidence to me was that he had failed to attend the second summons on [date] July and the third summons on [date] August.  He left Vietnam [later in] August 2019.  Despite two police summonses not having been answered, the authorities allowed [the applicant] free passage out of Vietnam. I do not accept that a person who had failed to answer two police summonses would be permitted to leave Vietnam under his or her own name as [the applicant] did.

2. In all the circumstances, I believe that [the applicant] was not summonsed to a police station on [date] April 2019 (or on any later occasion) and that he was not beaten and assaulted there. I am prepared to assume that [the applicant] may have placed posts concerning the Government’s activities on social media, as he has claimed.  Some of those posts were in evidence before me.  But I do not believe that activity or any protest activity in which he claims he participated in Vietnam led to police summonses. In my opinion, the summonses are not genuine documents.  I also regard the account of the assault, hospitalisation in [Province 1], and subsequent transfer to [Hospital 1] as implausible for the reasons I have given. 

3. I cannot determine whether the [Hospital 1] discharge form is genuine.  [The applicant] has gone to the effort of producing or acquiring false police summonses in my view, and this hospital form may well be false as well.  If it is in fact a genuine document, then the internal head injury [the applicant] is recorded in the form as having suffered occurred for different reasons.  [The applicant] also tendered photos taken by his girlfriend.  The photos appear to show him in a hospital setting and he has his head bandaged and arm in a sling.  Again, I cannot be sure that these photographs are genuine, but if they are genuine photographs, they relate, in my opinion, to an injury suffered in some other way. I am quite clear in that conclusion.  Even on the assumption that the [Hospital 1] discharge form and the photographs are genuine, these documents have not caused me to doubt my conclusions as to the falsity of the summonses and the falsity of the evidence given by [the applicant] concerning police brutality towards him.

4. I do accept, however, that [the applicant] attended protest meetings in Sydney in support of the Viet Tan. I accept that his photograph and a commentary in connection with the protests were posted by him online via a social media account that is linked to his name.  Downloads of the post were before me in evidence.  In my opinion, this activity was undertaken by [the applicant] with a view to strengthening his application for a protection visa. I believe [the applicant] took a deliberate decision to do this to enhance his chances of success in the application he made a month later. 

   APPLICATION OF THE RELEVANT STATUTORY PROVISIONS TO THE FACTS AS FOUND

5. Having made these findings of fact, I now turn to assess [the applicant]’s claim for protection under the Act. The claim falls to be considered against the criteria specified in section 36(2)(a) and (aa), which I shall not set out.

   Section 36(2)(a)

6. So far as [the applicant]’s claim concerns his fear of persecution and a submission that he is a refugee to whom Australia owes protection obligations (see ss 36(2)(a) and 5H), I note that I have rejected [the applicant]’s evidence to me that he has been subjected to police brutality in Vietnam on account of his political opinions. I do not believe his evidence to me was honest in this regard.

7. I do not believe that he holds any well-grounded fear of persecution that he would be persecuted on account of his political opinions if he returned to Vietnam.   

8. I should add that I do not believe that [the applicant] fears persecution on the basis of what he claims is his interest in the Roman Catholic faith. [The applicant] is not a baptised member of that church. Despite his interest, as at the date of the hearing before me, [the applicant] had not proceeded to baptism after his arrival in September 2019.  He was not raised by his parents with a Catholic faith. He may genuinely have an interest in the social justice teachings of the Catholic Church, as he said in his evidence to me, but it is an interest only and it is significant to my mind that he has not been formally received into the Catholic Church.  He cannot be said, therefore, to be a practising member of that church.

9. As for [the applicant]’s protest activities with the Viet Tan in Sydney, which he posted to social media, my conclusion is that these have been undertaken solely for the purposes of strengthening his claim for a protection visa. I must disregard this conduct for the purposes of deciding whether [the applicant] has a well-founded fear of persecution as a refugee: see s 5J(6).

10. In my opinion, [the applicant] is not a refugee to whom Australia owes protection obligations for the purposes of s 36(2)(a).

    Section 36(2)(aa)

11. Section 36(2)(aa) applies to non-refugees. [The applicant] is, on my findings, a non-refugee. The criterion in this paragraph requires me to be satisfied that Australia owes [the applicant] protection obligations because I have substantial grounds for believing that there is a real risk that [the applicant] would suffer significant harm, as defined, on return to Vietnam as a necessary and foreseeable consequence of his removal from Australia. “Significant harm” is defined in subsection (2A).

12. This aspect of the claim has two dimensions.

13. First, I do not accept that [the applicant] would face a real risk of significant harm as a failed asylum seeker. Given his lengthy period away, I accept that it is likely that an inference might be drawn that he has overstayed his time in Australia and is a failed asylum seeker. Nevertheless the latest DFAT Country Information Report,[1] for reasons that are explained at paragraphs [5.24] to [5.35], does not support a conclusion that a person in [the applicant]’s position would face a real risk of serious harm, as defined in sub s (2A), on his return to Vietnam. I act on the basis of the Report. (To the extent this aspect of the claim is advanced with respect to the criterion in s 36(2)(a), I would reject it for the same reason.)

    [1] DFAT Country Information Report (Vietnam) dated 13 December 2019.

14. Secondly, I must consider [the applicant]’s participation in the Viet Tan protests in Sydney. This raises a more difficult issue. I have already stated my finding of fact that [the applicant] engaged in the protests, and posted his participation to a social media platform linked to his name, as a means of strengthening his claim for a protection visa. I have also indicated that the Act, in s 5J(6), specifically requires me to disregard [the applicant]’s participation when assessing his application for a protection visa as a refugee.

15. In respect, however, of the criterion specified in s 36(2)(aa), I am not directed by the Act to disregard [the applicant]’s protest activity. The fact that [the applicant] deliberately undertook the activity to bolster his claim does not entail the legal consequence that I must exclude the activity from my consideration when I come to apply the criterion in s 36(2)(aa). The question I must ask and answer under s 36(2)(aa) is whether I have substantial grounds for believing that there is a real risk that [the applicant] would suffer significant harm on his return to Vietnam as a necessary and foreseeable consequence of his removal from Australia to Vietnam. His motivations for participating in the Sydney protests are irrelevant to that question unless they bear on the question of the risk that he would face in Vietnam on his removal. I do not believe they bear on this question.

16. It is well understood that the Viet Tan is considered to be a terrorist organisation by the Vietnamese government.[2] I find as a fact that there are substantial grounds for believing there is a real risk of significant harm, as defined, to any person in Vietnam who is known by the Vietnamese Government authorities to have been involved with Viet Tan protest activities (inside Vietnam or outside Vietnam).  I accept that the Vietnamese Government, as an authoritarian regime, maintains a significant security apparatus.

    [2] Ibid, at [3.47].

17. In other cases, I have decided, however, that I would be merely speculating if I concluded that participation in a protest of itself gives rise to substantial grounds for believing there is a real risk of that participation coming to the attention of the Vietnamese Government; that is, I believe I would be merely speculating, rather than addressing the statutory criterion which requires me to be satisfied that I have “substantial grounds for believing” a real risk exists of the Vietnamese Government finding out and inflicting significant harm.

18. Once, however, a person posts information on social media accounts linked to his or her name, the situation changes in my opinion. I do not think it is mere speculation to conclude that the Vietnamese government, as an authoritarian regime, could well monitor social media accounts for references to a terrorist organisation like the Viet Tan, and it might also receive information from local informants about posts to social media accounts.  

19. In [the applicant]’s case, I have concluded that I am satisfied that there are substantial grounds for believing that [the applicant]’s participation in the Viet Tan protests on two occasions in late September 2019 might well have come to the attention of the Vietnamese government authorities as a result of the posts to social media platforms made by [the applicant], or might come to their attention in the future on his return to Vietnam. If his participation has come, or comes in the future, to the attention of the Vietnamese Government authorities, a real risk exists that [the applicant] will suffer significant harm, as defined in s 36(2A), in Vietnam.  I accept that the brutality used in Vietnam by Government authorities extends to inflicting torture, or cruel, inhuman, or degrading treatment or punishment upon suspected dissidents: see the definition of “significant harm” in s 36(2A).  The risk of such harm to [the applicant] would arise, in my opinion, as a necessary and foreseeable consequence of his removal from Australia to Vietnam.  Section 36(2B) does not apply in this case, in my opinion.

20. [The applicant] might seek to persuade the authorities in Vietnam that he only attended the protests in Sydney as a means of bolstering his claim for a protection visa.  On my review of [the applicant]’s application, that would be, in fact, the truth. Denial of genuine association is, however, an obvious defence to an allegation of sympathy with a terrorist organisation, and I am not satisfied that the Vietnamese authorities would accept that explanation of [the applicant]’s attendance at the protests. I doubt they would. In any event, [the applicant] might well suffer significant harm before his explanation is accepted and he is released.

21. My conclusion in respect of s 36(2)(aa) is that I am satisfied that there are substantial grounds for believing that there is a real risk that [the applicant] would suffer significant harm on his return to Vietnam and that this risk would arise as a necessary and a foreseeable consequence of his removal. [the applicant] is owed protection obligations by Australia for this reason.

    CONCLUSION

22. The end result of my de novo review is, therefore, as follows. [the applicant] is not a refugee to whom Australia owes protection obligations. Although he attended the Viet Tan protests in Sydney and posted photos and a commentary on social media for the purposes of strengthening his claim to a protection visa, [the applicant] is nevertheless a non-refugee who satisfies the criterion specified in s 36(2)(aa) of the Act.

    DECISION

23. Accordingly, the Tribunal will set aside the decision under review and substitute a new decision under s 415(2)(d) that [the applicant] satisfies the criterion in section 36(2)(aa) of the Act.

    Dr N Manetta
    Senior Member