2011459 (Refugee)

2011459 (Refugee) [2022] AATA 4737 (30 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Andrew Au (MARN: 1686684)
CASE NUMBER: 2011459

COUNTRY OF REFERENCE: Vietnam
MEMBER:Peter Katsambanis
DATE:30 September 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 September 2022 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – family connection to the former regime – Republic of Vietnam army – re-education – education and employment opportunities – detention – torture – voluntary returns to Vietnam – passport renewal – political activities in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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 26 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 12 August 2019. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The first named applicant appeared before the Tribunal on 23 August 2022 to give evidence and present arguments. The second named applicant attended the hearing but chose not to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Sister A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review by a registered migration agent. The representative attended the Tribunal hearing.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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.
ISSUES
The issues in this case are whether there is a real chance that if the applicants return to Vietnam they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Claims and evidence
Protection Visa Application
The applicants applied for protection to the Department on 12 August 2019.
In the application for protection, the first named applicant stated he was born in [Town in] Ho Chi Minh City, Vietnam on [date]. He was married to the second named applicant [in] December 2004. The second named applicant was born on [date] in Ben Tre, Vietnam.
The third named [applicant] was born on [date] in Perth, Western Australia and is the child of the first named and second named applicants.
The fourth named [applicant] was born on [date] in Perth, Western Australia and is the child of the first named and second named applicants.
The first named applicant stated that he had lived at the same residential address in Ho Chi Minh City from January 1999 to October 2003 and again from January 2009 to November 2009. He had lived in [City 1], [Country 1] from October 2003 to July 2004 and in [City 2], [Country 1] from August 2004 to January 2009. He had also lived at various residential addresses since he arrived in Australia in November 2009.
The second named applicant stated that she had lived at an unspecified address in Ho Chi Minh City from January 1999 to December 2004 and then had lived at the same residential address in Ho Chi Minh City as the first named applicant from December 2004 to February 2007 and again from January 2009 to November 2009. She had lived in [City 2], [Country 1] from January 2007 to January 2009. She had lived at the same residential addresses as the first named applicant since her arrival in Australia in November 2009.
The applicants stated they were of Kinh ethnicity. The first named, third named and fourth named applicants stated that they were of Catholic religion. The second named applicant stated that she was of no religion.
The first named and second named applicants had arrived in Australia [in] November 2009 using their valid Vietnamese passports and as holders of valid Australian student visas. The third named and fourth named applicants had acquired valid Vietnamese passports from the Vietnamese authorities in Australia after they were born in Australia.
The first named applicant stated that he was currently employed a retail assistant in a [business 1]. He had previously been employed as [an occupation 1] and as a production worker in Australia. In [Country 1], he had been employed as a production contractor in both [City 1] and [City 2]. In Vietnam, after completing his education and his military service, he had been employed in [occupation 2] for a local company in Ho Chi Minh City and then as a production manager for several international companies based in Binh Duong, Vietnam.
The second named applicant stated that she was currently employed as a retail assistant in the same [business 1] as the first named applicant. She had previously been employed in several other jobs whilst in Australia. In Vietnam, she listed her only employment as a purchasing officer for a company in Bihn Duong from July 2001 to December 2006.
The first named applicant stated that he had completed high school and then completed a course in [occupation 3] at the [named university] in Vietnam. In Australia he had completed English courses at [a named] University from November 2009 to June 2010 and at [College 1] from July 2010 to July 2011.
The second named applicant stated that she had completed high school and then completed a course in [Subject 1] at [a named] University in Vietnam. In Australia, she had completed an English language course at [a named] University, an Advanced Diploma in [Subject 2] at [College 1] and an Associate Degree in [Subject 3] at [College 2]. These studies had been undertaken from August 2011 to November 2017. She stated that she was currently studying a Bachelor of [Subject 3] with [a Subject 2] major at [another] University, which she had commenced in February 2018.
The first named applicant stated that he was seeking protection in Australia because he could not return to Vietnam. The first named applicant claimed he left Vietnam to avoid the ruling party’s dictatorship and discrimination against families that were involved with the old regime. He claimed that he wished to experience the world outside of Vietnam and observe how people in foreign jurisdictions live and how other governments operate their countries. He stated that he first left Vietnam in 2003 to work in [Country 1] and for a mind-opening opportunity. After finishing work in [Country 1] in 2008, the first named applicant returned to Vietnam to be with his family. He again left Vietnam in 2009 to live in Australia because Australia is a nice country that upholds freedom and democracy. The first named applicant’s sister, who lives in Perth, encouraged him to study in Australia and experience the Australian lifestyle and culture including the freedom of expression under democracy.
The first named applicant stated that he had experienced harm in the past in Vietnam and claimed that his mother had been incarcerated and tortured by the Communist government for nearly 2 years because she had worked for the old regime. This treatment resulted in lifelong harm to her mental and physical health, and her mental health condition affected the first named applicant’s mental status greatly. It was claimed that the first named applicant was severely distressed after witnessing his mother suffering from depression, fear and anxiety caused by the mistreatment by the Communist regime. It was claimed that the first named applicant had lived in fear of being persecuted by the government because of his political opinion. It was also claimed that the first named applicant was discriminated against and his options for study and employment were limited due to his status as the son of parents who were involved with the old regime. In particular, it was claimed that the first named applicant cannot study certain tertiary subjects including but not limited to political sciences and he cannot hold certain positions of employment within the government.
It was stated that the first named applicant cannot seek help within Vietnam because the authorities, including the police, are responsible for the persecution that he fears. It was claimed that the Communist government and authorities responsible for persecution, including the police, have power throughout the entire country of Vietnam.
The first named applicant claimed that if he returned to Vietnam, he would be persecuted by the government due to his political opinion and status as the son of parents who were involved with the old regime. He claimed that the methods of persecution used by the government included, but were not limited to, kidnapping, arresting and mentally and physically torturing. It was claimed that the government could threaten the first named applicant’s family and ability to subsist. It was stated that the only way for the first named applicant to avoid the persecution would be to repress any expression of political opinion or criticism of the current regime. It was also stated that as the first named applicant is the son of parents who were involved with the old regime, he would face discrimination which would limit his options for study and employment. In particular, it was claimed that the first named applicant cannot study certain tertiary subjects or hold certain positions of employment.
It was stated that the applicant cannot relocate within Vietnam to avoid the harm he fears because the Communist government and authorities responsible for his persecution, including the police, have power throughout the entire country of Vietnam. It was claimed that to escape the risk of persecution, the first named applicant had previously sought to reside in [Country 1] and Australia.
In the application for protection, it was stated that the second named applicant, the third named applicant and the fourth named applicant were not making their own claims for protection.
All four applicants provided the Department with copies of their current Vietnamese passports. All four passports were issued by the Vietnamese authorities in Perth, Australia.
Also provided to the Department were the following documents:
·Copies of birth certificates, together with translations, for the first named and second named applicants;
·A copy of the marriage certificate for the first named and second named applicant;
·Copies of birth certificates for the third named and fourth named applicants;
·A translated Certificate of Completion of Re-Education Program for the first named applicant’s father dated [in] 1975 indicating that he had completed a three-day program of re-education in Vietnam;
·A translated Certificate of Completion of Re-Education Program for the first named applicant’s father dated [later in] 1975 indicating that he had completed a six-day program of re-education in Vietnam;
·A translated document headed [a Division] Command and dated [in] 1976 verifying the completion of re-education and release back into the community for the first named applicant’s mother;
·A translated letter dated [in] 1998 from the first named applicant’s mother requesting an exit visa from the Vietnamese authorities;
·An undated statement from the first named applicant, written in Vietnamese and translated into English, supporting his claims for protection, together with an appendix to the statement containing media articles and country information about human rights and the treatment of political activists in Vietnam. The Tribunal has read and considered these media articles and information prior to making its decision in this matter.
In this undated statement, the first named applicant outlined the history of his parents who had been active members of the Republic of Vietnam army during the civil war in Vietnam. His father, who was [an occupation 4], had been a [specified rank] in this army and after the end of the war had served two short periods of re-education. As [an occupation 4], after the end of the war he was prevented from making negative comments about the Vietnamese government and had to undertake regular compulsory studies of communism during school holidays.
The first named applicant claimed that his mother was [another rank] in the Republic of Vietnam army and had [a specified role] in the army. After the war ended, she had been taken by the communist government to a re-education camp [between dates in] 1976 and then served a further 6 months on supervised parole. It was claimed that she had been taken and jailed in violation of her human rights, and that she was cruelly mistreated both physically and mentally during this period. After what happened to his mother, the family did not want to live under communism and his mother kept trying to migrate to [Country 2] without success until 1998 when she became ill.
The first named applicant stated that he and his siblings had suffered discrimination in Vietnam because they were the children of former regime officers. He claimed that he was not allowed to study in the police force, military, diplomacy or politics even though he would love to do that if his country was a free country. He stated that work wise, management positions in these areas were for Communist Party members only and the dictatorship restricted choices for people like him.
After what happened to his mother and family, he could never trust the Communist government and was opposed to the current one-party regime. However, in Vietnam he could not express his political view or do anything to enable change without the fear of being arrested and persecuted. The first named applicant claimed he started to look for opportunities to experience the world outside Vietnam. He went to work in [Country 1] from 2003 to 2008 and then returned to his family in Vietnam.
The first named applicant claimed that he knew Australia was a nice country that upheld freedoms and democratic values. His sister, who lived in Perth, encouraged him to study in Australia and he accepted this opportunity. He claimed that for many years he had hoped for radical changes in the Vietnamese political system so he could enjoy true freedom and equal opportunities without discrimination. However, the Vietnamese government had been suppressing fiercely and opposing activists.

The first named applicant stated that he would like to ask for political asylum for himself and his family. If he returned to Vietnam and publicly expressed his political view against the current regime, he was really fearful that he would be arrested and persecuted by the Vietnamese government.
The first named applicant stated that his political view was that he disagreed with the one-party regime in Vietnam. He stated that the Vietnamese political environment must be open for participation by a variety of parties and Vietnamese people must have the freedom to vote for whichever party they choose. He stated that the Vietnamese government must treat people equally without discrimination for their family background.
The first named applicant claimed that because of the discrimination, when discrimination or injustices happen, people like him did not have the chance to be protected equally by the law. This would have an impact on the security of himself and his family.
The first named applicant claimed that if he had to return to Vietnam, he would have two choices. The first choice was his conscience, and he needed to express his political dissent and support activities that would help to change the current regime. But, based on what happens to public political dissenters, if he did that he would certainly be persecuted by the government. The methods of persecution by the government would be kidnapping, arresting, torturing physically and mentally. In addition, they could threaten his family and make it difficult for his family to earn a living. He claimed that these methods had been used by the government to deal with political dissenters in Vietnam for many years.
The first named applicant claimed that his second choice, for the safety of his family and himself, would be to lead a lying life. He had to keep silent and conceal his true political views to survive. He claimed that this would be against his will and his conscience. He stated that both these choices would take away his basic human rights.
The first named applicant referred to the treatment of five people who had been persecuted for political dissent in Vietnam and included media reports about their treatment as an appendix to his statement.
The first named applicant claimed that if he was arrested for political dissent anywhere in Vietnam he would certainly not be protected by the law because in Vietnam the legal system only protects the dictatorship of the Communist Party and suppresses political dissenters without mercy. He earnestly asked for consideration to grant his family refugee protection so they could live in an environment of true freedom where they can enjoy basic human rights such as expressing their political view without fear of being persecuted and not being discriminated against for his family background. He claimed that with this freedom, he could be actively devoted to changing the Vietnamese political regime.
The delegate refused to grant protection visas to the applicants on 26 June 2020.
Application for Review
The applicants lodged their application for review with the Tribunal on 10 July 2020. Together with their application for review, the applicants provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
The Tribunal was also provided with copies of documents previously provided to the Department, including the first named applicant’s undated statement and appendix of country information and news articles; the statement from [a Division] Command; the letter dated [in] 1998 from the first named applicant’s mother; and the two certificates evidencing completion of re-education by the first named applicant’s father.
Also provided to the Tribunal was a letter dated [in] July 2020 from [Witness A], [Official A] of [Community Organisation 1] and the [Community Organisation 2]. In this letter, [Witness A] outlined the first named applicant’s family history in Vietnam and stated that the first named applicant had regularly attended the Vietnamese community events in Western Australia for the past 10 years as he felt these events resonated with his parents’ connection with the [community] association values. The writer claimed that the first named applicant had volunteered at various community events organised by the Association and through his positive contributions he had demonstrated that he was a helpful person who had a positive impact on society. The writer claimed that the first named applicant had expressed a strong political view against the Communist government of Vietnam to the writer and to a few trusted friends. He stated that if these views had been expressed in Vietnam, they would put him and his family in danger. The writer asked the Tribunal to consider approving permanent residence for the first named applicant to give him an opportunity to further contribute to Australian society.
On 18 July 2022, the applicants’ representative provided the Tribunal with a submission dated 28 June 2022. In this submission, the representative repeated the history of the first named applicant’s parents in the Republic of Vietnam army and their subsequent periods of re-education after the end of the war. The representative stated that the first named applicant’s mother had subsequently attempted to migrate to [Country 2] but discontinued her attempts due to ill health. The representative stated that the first named applicant and his siblings faced discrimination because of their parents’ occupations and association with the old regime. It was claimed that the first named applicant had been prevented from study and employment in fields including but not limited to the police force, military, diplomacy and politics. It was claimed that the first named applicant was and continues to be denied freedom of political expression and in particular he could not criticise the Communist regime without being subject to persecution including but not limited to imprisonment, physical harassment and denial of the ability to subsist. It was claimed that the first named applicant fears that he would face harm upon return to Vietnam due to his family background and anti-Communist political views.
Together with this submission, the representative provided the Tribunal with a signed declaration from the first named applicant confirming that the submission had been read and explained to him and that the submission accurately and completely presented his claims. Also provided to the Tribunal was a statement dated 8 July 2022 from the first named applicant and a character reference from [Sister A].
In his statement dated 8 July 2022, the first named applicant responded to the findings made by the delegate on 26 June 2020. The first named applicant stated that discrimination against people involved in the old regime had mainly diminished over time in Vietnam because many of these people had left Vietnam as refugees, however his mother had to discontinue her attempts to migrate due to her ill health caused by the torture she had experienced in re-education.
He stated that limiting the career paths of people involved in the previous regime by excluding them from the police force, military diplomacy and politics was a sophisticated move by the Communist regime and there was no fair treatment before the law because the system suppresses opposition to protect the dictatorship of the regime. He stated that cabinet members still had to be members of the Communist Party and normally they had either served for the Vietcong or had now returned to their homeland. He added that since 1975 a lot of people had moved from the north of Vietnam to the south.
The first named applicant claimed that despite having studied in [occupation 3] and then being employed and being able to travel, he had already suffered discrimination before that because he had been excluded from other fields of study.
The first named applicant stated that although you could obtain employment in the private sector and be successful in business in Vietnam, this success would be ruined as soon as you openly express opinions against the government. He highlighted the case of a successful IT entrepreneur who had raised concerns about the current regime and was then imprisoned for 16 years for “activities aimed at suppressing the people’s administration.”
The first named applicant argued that his ability to travel frequently to Vietnam did not indicate that he did not have a subjective fear of harm in Vietnam. He claimed that due to fear and because of what his mother had experienced in the past, he had to conceal his real political opinion to survive. He claimed that in Vietnam if you do not openly express your political view against the Communist Party of Vietnam you are safe and can get on with your life. He stated that with limited and censored information from outside, a lot of people in Vietnam do not even know that they are allowed to express different political views. Silence or concealing real political views was a way of survival and, for some people, expressing or not expressing political views does not matter. However, for himself it was a matter of will and conscience. It was part of his personality to desire freedom to express his political views and be able to engage in activities that would improve democracy in Vietnam without fear of persecution. After many years living outside Vietnam, he had realised that it was a basic human right to be able to express his political beliefs without fear of persecution. He would find it very hard to return to Vietnam, stay quiet and live a life of concealing to survive.
The first named applicant stated that his last trip to Vietnam was in 2012 and during that short trip he stayed very low-key. He claimed he had not travelled to Vietnam since that time. He had two small children and in normal circumstances he would have taken them to Vietnam to see their family, but he had not done so.
In relation to the Department finding that the first named applicant was not a high-profile activist so less likely to be monitored and had not been involved in political activities in Australia, the first named applicant stated that last time he was in Vietnam it had been a short and low-key visit. He claimed that it was not difficult to get the attention of the Communist Party of Vietnam and become a high-profile activist. All that was needed was to openly express opinions against the government, and the consequences were predictable including persecution. He had to suppress his desire to do that for the sake of his extended families still in Vietnam. He claimed he had always opposed the Communist regime but could not express it due to fear.
The first named applicant claimed that in Australia he had regularly participated in activities of [Community Organisation 3] and [Community Organisation 2]. He claimed these organisations upheld the values that were in line with his own values such as supporting freedom for Vietnam and stated that the flag and national anthem of the Republic of Vietnam was used at their events as a way of showing disapproval against the current regime. He claimed that he had attended annual events such as the Black April Day, when South Vietnam had been taken over by the communists, Republic of Vietnam Armed Forces Day and Vietnam Veterans Day. He claimed that commemoration of these events was prohibited in Vietnam as it was against the Communist Party of Vietnam.
The first named applicant claimed that he had also attended events with visiting speakers from interstate and overseas presenting about democracy and human rights in Vietnam, including events held in Perth [in] June 2016 and [in] June 2017. He stated that he had also closely followed activities of various movements related to improving the situation in Vietnam.
The first named applicant claimed that to improve democracy in Vietnam was a long process. For him, it started with awareness and involvement. His view was that the Vietnamese political process must be open for involvement by multiple parties and Vietnamese people must have the freedom to express their political beliefs or vote for any party that they choose. Human rights in Vietnam must be respected.
The first named applicant claimed that a lot of Vietnamese, especially those in Vietnam, are not interested in politics, human rights or democracy as it is too much of a risk and too much trouble. However, he believed that this would change if more awareness was raised.
The first named applicant claimed that if he went back to Vietnam to live, it would be against his conscience and his character to conceal or alter his political beliefs just to survive. He claimed that if he chose to express his views openly, he would be surely persecuted by the Communist Party of Vietnam government as has happened to many other Vietnamese people. Anyone who raised their political view against the Communist Party of Vietnam would be noted and persecuted. He had a passion for politics and would like to get involved in making meaningful changes to democracy for Vietnam.
The first named applicant claimed that refugee protection would give him the basic human right of freely expressing and following his political beliefs without fear of being persecuted by the Communist Party of Vietnam government. It would also enable him to contribute more to activities of bringing democracy awareness to Vietnam and other countries in the world.
Also included with this statement were two photographs claimed to have been taken at activities of the [Community Organisation 2]; a copy of the letter of support previously provided to the Tribunal from the [Official A] of [Community Organisation 1] and the [Community Organisation 2]; internet links to reports of the events held in 2016 and 2017 which the first named applicant claimed to have attended; and internet links to information about suppression of political dissent in Vietnam.
In a character reference for the first named applicant dated 12 July 2022, [Sister A] stated that she was the sister of the first named applicant. She highlighted the suffering of her parents in Vietnam since the end of the war and claimed that as the youngest child in the family the first named applicant had been affected the most by his parents’ plight. She stated that the first named applicant had always been passionate about politics, human rights and democracy. He had always hoped to change the current regime in Vietnam and his parents often had to remind him to keep his view to himself to avoid trouble.
The sister claimed that the first named applicant could have stayed in Vietnam after university by concealing his political views against the government. However, her family knew that it would be against his character to obey the oppressing rules of the Communist Party of Vietnam, so he applied to go to [Country 1] for a few years until the global financial crisis hit and he had to return to Vietnam.
The sister claimed that she knew the first named applicant would not be able to live truly in Vietnam with his political beliefs, so she encouraged him to come to Australia to study and wait for the situation in Vietnam to subside. However, the Communist Party regime in Vietnam had got more oppressive over the past few years so he had no choice but to seek refugee protection from Australia. As his sister, she was quite certain that if the first named applicant had to return to Vietnam, he would not be able to remain silent with what is happening there, and as soon as he openly expresses his political view he would be in trouble with the government and would be persecuted like many other Vietnamese people.
The sister stated that it was a fact that Vietnam was a dictatorial regime and while many Vietnamese are either not concerned or accept this fact, the first named applicant is one of those who like to fight against it. She stated that it was against his character to keep concealing his true political beliefs just to survive and that he had been struggling with this for his whole life. She stated that her family would be very grateful if his application for protection was approved as it would save his life so he could live a life with freedom to express his political beliefs in a free and democratic society like Australia.
Tribunal Hearing
At the Tribunal hearing held on 23 August 2022, the first named applicant confirmed his date of birth and stated that he had been born in Saigon, Vietnam. He claimed that his father was still alive and living in the family home in Saigon with the first named applicant’s [Relative A]. He confirmed that his mother had died in November 2008.
The Tribunal stated to the applicant that it accepted the claims he had made relating to his parents’ involvement in the Republic of Vietnam army during the Vietnam War and the periods of re-education they had endured after the ending of the war, including claims of excessive re-education with associated physical and mental harm for his mother.
The first named applicant stated that he had [specified family members]. [His sister] lived in Australia. His other [family members] continued to live in Vietnam. [One relative] in Vietnam worked in an office of a foreign company and [another] worked in a [company] that was owned by [another relative].
The first named applicant confirmed that he had graduated with an [occupation 3] degree from the [named] University in Vietnam around 2001. He claimed that he had then completed his compulsory military service by enrolling in the popular forces that were organised at a local level. He stated that every young man had to be enrolled in this military organisation and confirmed that he had completed his military service without encountering any problems.
The first named applicant claimed that after university and military service, he was recruited by a company in Vietnam to [role specified] but after a while he was promoted to the level of manager. He confirmed that he met his wife when she was working in the office of the same company that he was working at in Vietnam. He stated that he went to [Country 1] in 2003. When asked why he went to [Country 1], the first named applicant stated that after his time at university he had started to admire [Country 1] and really wanted to go there to see the technology that they were using. He claimed that he saw some advertisements for jobs in [Country 1] and applied. After an interview he was accepted for a position, and he went to [Country 1] as an employee. He stayed in [Country 1] from 2003 to 2008 and claimed that he had returned to Vietnam twice during his period of employment in [Country 1].
When asked why he had chosen to leave [Country 1] in 2008, the first named applicant stated it was for two reasons. He claimed that his mother had passed away and the economic situation was not very good in 2008 in [Country 1], so employment opportunities were not as good as they had been in the past. He also stated that his sister had advised him to return to Vietnam and then come to Australia.
The Tribunal asked the first named applicant if it was his claim that his sister had told him she would bring him to Australia. He responded that his sister told him that he could use his experience in [Country 1] to come to Australia and also informed him that Australia was a free society where he could do very well.
The first named applicant confirmed that in Vietnam he lived at his parents’ house. He stated that he became engaged to his wife, the second named applicant, around 2003 before he went to [Country 1] and then he brought her with him to [Country 1]. He claimed that the couple were legally married in Vietnam in 2004 but because of his work commitments in [Country 1] the wedding reception was held later.
The first named applicant confirmed that he came to Australia in November 2009. He stated that he came to Australia because his sister told him this was a free country and there would be opportunities for him in Australia. When asked what visa he had used to come to Australia, the first named applicant stated that it was a student visa and confirmed that he travelled to Australia together with his wife, the second named applicant.

The first named applicant stated that after his arrival in Australia he spent a lot of time struggling to learn English because it was different to Vietnamese and [the language of Country 1], and added that he had stopped studying in Australia in 2011. He claimed that after he stopped studying, his wife started studying and continue to study through to 2019.
The Tribunal asked the first named applicant if his wife, the second named applicant, had continued to study after the couple applied for protection visa or whether she had ceased her studies around that time. He responded that when they submitted their application, his wife was still studying because she wanted to finish her course. However, at this point in the hearing, the second named applicant, who was sitting at the back of the hearing room, interrupted and stated that around that time she did not finish her course because her [child] had become unwell.
The first named applicant confirmed that the couple had two [children] who were born in Australia, in [respective years]. He claimed that in Australia he was currently working as [an occupation 5] in a factory in [Perth]. His wife, the second named applicant, was currently working as an ] in a private [business].
The first named applicant confirmed that his two children born in Australia had been issued with Vietnamese passports by the Vietnamese authorities in Australia. He also confirmed that he and his wife had both renewed their Vietnamese passports through the Vietnamese authorities in Australia. He claimed that he had no real difficulties in obtaining these passports. He stated that the authorities asked them to provide documents, and the family provided the documents as had been requested by the Vietnamese [authorities].
The Tribunal asked the first named applicant if he had experienced any problems in Vietnam before he came to Australia. He responded that his first difficulty was when he applied for further studies. He claimed that he was interested to study for the police force, but he was refused because of his family background. He stated that he also was interested in studying law but again was refused because of his family background. He added that in Vietnam the authorities check the history of three generations of your family, so they refused him on the grounds that his family had been associated with the Republic of Vietnam army.
When asked if he had any documentary evidence of making these applications to study for the police force or to study law, the first named applicant stated that he did not have any evidence but when he was in Year 12, he made enquiries and was told immediately that he should not apply. He added that if the Tribunal made enquiries online, they would find that this eligibility criteria still applied. The Tribunal asked the first named applicant whether he did make these applications in Vietnam as claimed or whether he was simply reciting what he had read online. He responded that it was his personal experience when he was in Year 12. He went to the relevant departments and was told the criteria. He was not eligible due to his background, so he did not bother to apply.
The Tribunal pointed out to the first named applicant that it did not appear that he had been prevented from studying at university or graduating from university in Vietnam with an [occupation 3] degree. He responded that the ban did not extend to [this] field.
When asked if he had experienced any other problems in Vietnam before he came to Australia, the first named applicant stated that because of his family background he always encountered difficulties and he knew that the stigma would always be with him. He stated that he went overseas to find the opportunities he could not find in Vietnam. He claimed that when he applied for any position, they would check his family history and he had no choice in that matter because it is impossible for him to change his family affiliation.
The Tribunal stated to the first named applicant that despite his family background as the child of parents who had supported the previous Republic of Vietnam regime, he had managed to obtain a good university degree and held down a good job in Vietnam prior to moving overseas, which would indicate that he had not suffered any serious harm in Vietnam in the past. The first named applicant responded that this was correct, but those opportunities were limited in Vietnam. He added that during his time in Vietnam he realised that the law in Vietnam did not protect the ordinary person.
The Tribunal asked the first named applicant why he could not return to Vietnam now or in the reasonably foreseeable future. He responded that if he went back and did not say anything, they would leave him alone. However, if he started speaking about his political inclination he would be in trouble. When asked why he would speak about these issues, the first named applicant stated that these were the main things he cherished, and he did not want the restrictions in Vietnam that he had experienced to extend to his children. He claimed that he wanted to benefit from freedom of thinking.
The Tribunal asked the first named applicant what actions he had taken in the past to promote his political views and his political inclination. The first named applicant responded that when he was in Vietnam, he didn’t advance his ideas because he knew he would be in trouble. He stated that since he moved overseas, he started to participate in different occasions celebrating the history of Vietnam and in particular the history of the Republic of Vietnam. He mentioned that he had attended the events commemorating 30 April and the day to celebrate the history of the Republic of Vietnam Armed Forces. He stated that he was not a member of the organisations that were organising these events, but he tried to help at the gatherings. He stated that he also participated in the Vietnam Day events on 18 August.
The Tribunal asked the first named applicant to confirm whether he was a member of [Community Organisation 1] or [Community Organisation 2], from whom he had received a letter of support. He responded that he was not officially a member of these organisations but had participated in the reunions. He claimed that he was very young but he still participated because he wanted to celebrate with the members of these associations at the functions that they held.
The Tribunal asked the first named applicant what was stopping him from becoming a member of these organisations. He responded that all of the members were a generation older than him so he wanted to ascertain that they had values that he would like to follow. Therefore, he had yet to apply to become an official member. He stated that in Australia he could see these groups and participate and rejoice in the events that are prohibited in Vietnam.
The first named applicant confirmed he had been in Australia for around 13 years. On this basis, and on the basis of statements he had made that these organisations represent his values, the Tribunal asked the first named applicant why he had not bothered to become an official member of these groups in the 13 years he had been in Australia. He responded that when he first attended these functions, he could see the members were older. He added that his situation in Australia was not certain and he did not have the opportunity to join as a member. However, he claimed that he attended the reunions with his sincere thoughts in support of the values of the organisations.
The Tribunal asked the first named applicant if he had ever made any critical public comments about the Vietnamese government or the political situation in Vietnam. He responded that he had presently not dared to do so as yet because he was afraid.
The Tribunal asked the first named applicant if he had published any articles or any online statements that were critical of the Vietnamese government or the political situation in Vietnam. He responded that he shared some online articles with his father about what is happening in Australia. After he sent these articles to his father, the Vietnamese Internet police had visited his father and threatened him about receiving any more communications from the first named applicant.
The Tribunal asked the first named applicant to clarify when his father had been threatened by police for communicating with him. He claimed that he could not remember the exact date, but it was sometime last year (2021) when he was looking at clips on his phone. His father had been advised by the Internet police that he should not look at those clips and subsequently his father told the first named applicant not to share them with him anymore.
The Tribunal pointed out to the first named applicant that he had not raised this issue about his father being visited by the Internet police in Vietnam after receiving information from the first named applicant in his statement dated 8 July 2022 or in the submissions made to the Tribunal by his representative. The first named applicant responded that these things had happened but if he feared that if he made them available his father, who was a very old man, would be very afraid. He asked the Tribunal to accept what he was now claiming but stated that he could not provide any more evidence about his claim. He added that if he returned to Vietnam and expressed political ideas he would be in trouble.
The Tribunal pointed out to the first named applicant that if he had sent this information to his father as claimed, then he ought to be in a position to obtain a copy and provide that copy to the Tribunal. The first named applicant responded that he would like to go back to his [social media] to check but he did not know if the information was still available.
At this point in the hearing, the Tribunal pointed out to the first named applicant that it had significant credibility concerns about this claim relating to the provision of information to his father and the subsequent visit to his father by the Vietnamese Internet police. The Tribunal pointed out that the first named applicant could have made this claim at any time prior to the hearing, including in the written statement he had provided to the Tribunal but had not done so. In response, the first named applicant stated that at first when he came to Australia, he participated in commemoration days as a person who wanted to celebrate the day of significance and did not know that he would need to prove it later.

100. The Tribunal pointed out to the first named applicant that it was not referring to his participation in events in Australia, but instead was referring to the claimed communications between the first named applicant and his father that had occurred around a year ago. The Tribunal added that the non-responsive answer the first named applicant had just provided increased the Tribunal’s concerns about the credibility of this claim. In response, the first named applicant stated that, as he had mentioned earlier, when he shared the information with his father, his father had been advised by the Vietnamese Internet police not to read such communications. His father had been very afraid and told him not to do it again.
101. The Tribunal asked the applicant if he had published any critical comments about the Vietnamese government or the political situation in Vietnam anywhere else, apart from the claimed communication with his father. He responded that he mainly shared articles on [social media] and stated that if he did that in Vietnam, he would be contacted by the Vietnamese Internet police. He stated that you could do these things freely in Australia but not in Vietnam.
102. The Tribunal asked the first named applicant why he had not provided any documents to evidence that he had made these posts on [social media]. The first named applicant responded that the Tribunal could access his [social media] page. When it was pointed out to the first named applicant that it was not the Tribunal’s role to make his case for him and that he had a representative who was able to assist him with his case, the first named applicant did not directly respond but instead made reference to the example of the IT entrepreneur whose case he had previously raised in his written statement of 8 July 2022. He stated that this person had got into trouble for his political ideas and was still in prison in Vietnam.
103. The Tribunal asked the first named applicant why he had not made an application for protection in [Country 1] if he had genuinely held fears about his political opinion for many years as claimed. The first named applicant responded that when he was in [Country 1], he wanted to see some changes in Vietnam but that did not eventuate and the situation in Vietnam was still the same when he returned, so he went overseas again with the hope that Vietnam might change.
104. The first named applicant confirmed that since he had come to Australia in 2009 and he had returned to Vietnam on one occasion in 2012 for around a week. He claimed that he did not have any problems during that visit because he went to visit his family and to attend the wedding of a [relative].
105. The first named applicant was asked why he had waited almost 10 years after arriving in Australia to apply for protection. He responded that he always maintained that it was his sincere hope to bring change to Vietnam, but nothing had changed. He added that during his time in Australia he had children and it was his sincere wish to not see his children live through what he had lived through in Vietnam.
106. The Tribunal stated to the first named applicant that it accepted that in the past in Vietnam people who had been associated with the Republic of Vietnam and their families did suffer discrimination. However, country information from the Department of Foreign Affairs and Trade indicated clearly that if any such discrimination still existed against relatives of people involved in the Vietnam war it was low level and DFAT was not aware of a strong pattern of such behaviour. In response, the first named applicant stated that in Vietnam they do whatever they want to do regarding persecution and discrimination, but they do not do it in public. He claimed that in his case throughout his life in Vietnamese society they will always check back three generations of his family history and he would always be under the same rules. He claimed that if he ever obtained an influence and had followers in Vietnamese society he would be in trouble. He stated that the Vietnamese authorities aimed to brainwash the generation born after 1975 to clear up any memories about the previous government and to make them live under their own thinking without any thoughts of how society was in the Republic of Vietnam before 1975. He added that he had participated in fundraising to help invalid former Republic of Vietnam soldiers and they used to send the money to a priest in a monastery in Vietnam, but after a few times the authorities had forbidden it from happening anymore. He claimed that they now found these invalids clandestinely and continued to raise funds for these people in a clandestine manner. He stated that what the Vietnamese government had done to political prisoners was still happening today.
107. The first named applicant confirmed that the organisation that sent money to the Monastery in Vietnam was the [community] organisation he was involved with in Australia.
108. The Tribunal pointed out to the first named applicant that the fact that he had managed to go to university in Vietnam, had completed military service in Vietnam and had obtained gainful employment in Vietnam in the past would strongly indicate that he had not suffered any serious harm in the past in Vietnam. He responded that there were limitations, and he could only live within these boundaries. He claimed that if he had more opportunities, he could benefit but they were not presented to him. He added that he had lived in Vietnam for less time than he had lived overseas.
109. The Tribunal pointed out to the first named applicant that he had claimed he had held his political opinions that were contrary to the current Vietnamese government for a long time but in almost 20 years that he had spent in [Country 1] and Australia he had only chosen to apply for protection in 2019. On this basis, the Tribunal stated that this may indicate that he did not genuinely hold the fears he claimed to have about Vietnam. The first named applicant responded that his fear was mainly for what would happen to him because his family had experienced difficulties whilst in Vietnam. He stated that if he were to have a choice, he would choose a country where he could express his political thinking.
110. The Tribunal pointed out to the first named applicant that he, his wife and his children had all received passports from the Vietnamese authorities whilst they were living in Australia, which may indicate that the Vietnamese authorities had no interest whatsoever in the first named applicant or his family. He responded that like he had said before if he does not do anything to attract attention, the authorities would leave him alone. He then again referred to the case of the IT entrepreneur who had gained many followers in Vietnam and was now imprisoned because of his political beliefs, contrary to the government of Vietnam.
111. At this point in the hearing, the Tribunal pointed out to the first named applicant that it was not asking him about this IT entrepreneur but about his own claims. The Tribunal expressed some concern that on two occasions during the hearing, the first named applicant had diverted to raising the case of this entrepreneur when asked about his own circumstances. The first named applicant responded that this was a concrete example about what happened in Vietnamese society if a person gains acceptance and then gets the focus of the government. He added that the Vietnamese authorities had even infiltrated the Buddhist religion so that they could control the religion better.
112. The Tribunal pointed out to the first named applicant that he was now [age] years old, and it appeared that he had not taken any public action that would provide him with a public profile as a person who was opposed to the Vietnamese government in any way. The Tribunal asked the first named applicant why it ought to accept that he would do something in the future to create such a public profile, especially given that he had not done so in the almost 20 years in which he had lived outside Vietnam. The first named applicant responded that he really followed the Vietnamese [community] organisation here in Australia. Although he was not the main organiser, he followed them and participated in their functions because he had a sincere belief in the objectives of the organisation. He claimed that it was his belief that the Vietnamese government was like a mafia organisation, so he had to be very careful about whatever he did.
113. When asked if he had anything else to tell the Tribunal, the first named applicant stated that he came from a family with a background and had been educated with the values of that family. Therefore, he had been stigmatised by society in Vietnam simply because he wanted to believe in the values of his family.
114. The applicant’s representative indicated that he did not have anything else that he wished the tribunal to cover before taking witness evidence.
115. The witness, [Witness A], confirmed that he was the [Official A] of [Community Organisation 1] and the secretary of the [Community Organisation 2], which were associated organisations. He stated that the first named applicant was a member of both of these organisations.
116. The Tribunal pointed out to the witness that it had read his previously provided statement and asked what else he wanted to add in support of the applicants. The witness stated that the first named applicant helped at every event of his association. He claimed they held around 3 to 4 functions a year and the applicant would always assist to set tables and clean the room. He confirmed that his organisation would occasionally send money to invalid veterans in Vietnam.

117. The witness confirmed that he had come to Australia in 1985 as a refugee and had subsequently returned to Vietnam twice with the last occasion being around 2000. He stated that he had been involved in the Republic of Vietnam army like the parents of the first named applicant and told the Tribunal of his own personal story regarding ill-treatment in re-education camps before he came to Australia in 1985. He asked the Tribunal to try to compare the case of the first named applicant with his own case in Vietnam.
118. The Tribunal asked the first named applicant, the witness and the representative if they could clarify whether the first named applicant was a member of these organisations in Western Australia, as had been claimed by the witness, or whether the first named applicant was not a member but was simply a supporter of these organisations as he had claimed himself.
119. The representative stated that the first named applicant had said he was not an official member of these organisations. The witness stated that officially the first named applicant did not have any documents, but he did participate in the events of the organisations as an affiliate member.
120. The Tribunal pointed out to the witness that it was aware from its own personal knowledge that the term ‘affiliate member’ had a specific definition in relation to [these organisations] and it was considered to be a level of membership within these [groups] that incurred a membership fee and often also was accompanied with a membership card. The Tribunal asked the witness to clarify whether the first named applicant was an affiliate member of the [specific group]. In response the witness stated that his association had rules, they are a registered organisation with an ABN, they accepted members who had been in the Republic of Vietnam army, and they provided these people with a card. He added that family members of veterans can go through the same process, and they would be accepted but they did not ask them for membership fees.
121. The Tribunal pointed out that it did have concerns that the witness had changed his story during the process of giving evidence to the Tribunal but pointed out that it would not allow any credibility concerns about the witness evidence to prejudice the applicants’ case.
122. The first named applicant stated that he had previously mentioned that he did not participate in the organisations as an official member, but he respected the values of the organisations, and he went along to assist with their events.
123. The Tribunal also heard witness evidence from [Sister A], who confirmed that she was the sister of the first named applicant.
124. The Tribunal stated to the sister that it had read and considered the statement she had previously provided to the Tribunal, and asked if she had any further information she would like the Tribunal to consider. She responded that as his sister she knew the character of the first named applicant and knew that he had strong political views. She added that she had recently spoken to her father who told her that he had read something online against the regime and had then received a call from the local police telling him that he would have problems if he continued to access such information. The sister confirmed that it was her evidence that her father had received this call and claimed it was about information that related to the Vietnamese government. She added that sometimes she shared information online and sometimes her brother, the first named applicant, would share such information.
125. The Tribunal asked the sister to clarify when her father had received this call from the local police in relation to this information. She stated that it was a few months ago and when asked if she could be more precise in relation to the timeframe, she stated it was around six or seven months ago.
126. The Tribunal asked the sister why she had not raised this claim in the statement she had submitted to the Tribunal dated 12 July 2022, if these events had occurred prior to the date she made the statement. She responded that she did not know that it could help the first named applicant’s claim but then she thought about it and realised that it could help. The Tribunal asked the sister why she had not raised the matter with the representative to find out whether it would be relevant information or not. She claimed that the family talked about it, but they were scared of the danger on the other side in Vietnam. She claimed that they only learned today that the hearing would be confidential, and they did not want to get their father into trouble. When it was pointed out to the sister that their representative was a professional who had to uphold their confidentiality, she responded that the family was still worried about today.
127. When asked if she had anything else to add, the sister claimed that it would be very dangerous for someone of the character and the political views of the first named applicant to return to Vietnam. She stated that she was [age] years old and had lived in Australia for 20 years but didn’t really care about politics herself. She added that people had different personalities and even if they were from the same family with a similar family profile some of them would have problems and others wouldn’t in Vietnam. She claimed she was not really bothered about political issues, but the first named applicant was very strongly against the government of Vietnam. Therefore, she was scared if he returned to Vietnam.
128. The Tribunal pointed out to the witness, the first named applicant and the representative that it had serious concerns about the evidence it had received from both the first named applicant and the witness in relation to the claimed interaction between the first named applicant’s father and the police in Vietnam after the father had allegedly accessed information sent to him by the first named applicant. The Tribunal pointed out that the first named applicant had claimed this interaction with police had happened sometime last year, whereas the sister had initially told the Tribunal it had happened a few months ago and had later added that it was around six or seven months ago, which would still place the interaction sometime in 2022. The Tribunal also pointed out that it would be helpful if it could be provided with a copy of whatever the first named applicant had sent his father. The first named applicant responded that when he shared information it meant that his father could access his [social media] page and look at it but he could not remember the exact date this had happened. He added that when his father got a call from the police, he had told the first named applicant not to send it to him again.
129. The Tribunal pointed out to the first named applicant that if he had shared this [social media] post with his father, he ought to have a copy of the post. Given that he had not provided the post to the Tribunal, the first named applicant was asked why the Tribunal should simply accept his claim that this event had happened. The first named applicant responded that he did not just share that topic but many other topics. He claimed that his father accessed the page and looked at it. Because those things were normal here in Australia, the first named applicant did not take any notes about it. The Tribunal again pointed out to the first named applicant that if he had shared this information on his [social media] page as claimed, it would still be there for him to access and provide to Tribunal. He responded that he needed to have a look and check properly because he could not remember exactly when it was, as he was sharing a lot of information. He claimed that he would have a look and ask his father but added that it would be difficult for his father to access this information. The Tribunal again pointed out to the first named applicant that it was not asking him to source any information from his father because this information should be in the first named applicant’s own possession or accessible by him.
130. The representative indicated to the Tribunal that he believed everything had been covered at the hearing. The representative confirmed that he had not been given any instructions in relation to the claimed interaction between the first named applicant’s father and the police in Vietnam and had not heard about this claim until he had heard it at the hearing. He asked the Tribunal for the opportunity to provide further evidence, including evidence from [social media], and the Tribunal agreed to wait until 30 August 2022 for the provision of any such evidence.
Post Hearing Submission
131. On 29 August 2022 the applicants’ representative provided the Tribunal with submission which included a typed statement from the first named applicant and attached various [social media] posts in Vietnamese, with English translations of relevant sections.
132. In his statement dated 29 August 2022, the first named applicant stated that at the hearing he was nervous and worried about mentioning that his father had been contacted by Vietnamese internet police because he had viewed the [social media] posts. It was stated that the first named applicant was not sure which of the ‘sensitive’ posts his father had read because he posted and shared a lot of them on his page. He stated that the information he shared was not censored in Australia but is considered sensitive in Vietnam. He stated that the attached [social media] posts show his thought process and his political views, which are not forbidden in Australia but are considered anti-government and not allowed in Vietnam. He stated that if he posted them in Vietnam, he would be accused and punished. The first named applicant repeated his claim that the government of Vietnam, led by the Communist Party, wants to censor everything in people’s lives including their thoughts to protect the dictatorship.
133. The attached [social media] posts from the [social media] page of the first named applicant, numbered from 1 to 30, contain reposts by the first named applicant of news articles from various news sites including the BBC, and reposts of posts by other [social media] users. The English translation of the contents of these reposts indicates that they contain commentary critical of the current government in Vietnam. The first named applicant has not made any comments of his own in 21 of these reposts but has provided short comments in 9 of the reposts. One of these short comments is in English, and English translations have been provided for the other eight comments. The comments attributed to the first named applicant are mainly ironic, and when combined with the reposted content below the comments, can be viewed as content that is critical of the current Vietnamese government and the direction of Vietnam under the current government. From the dates on the [social media] posts that have been provided, seven of the posts that contain direct comments from the first named applicant were made in 2022 and two were made in 2021.
FINDINGS AND REASONS
134. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
135. There is no issue as to identity. The first named and second named applicants arrived in Australia on valid Vietnamese passports, which have subsequently been renewed by the Vietnamese authorities in Australia. The third named and fourth named applicants were born in Australia but have been issued with Vietnamese passports by the Vietnamese authorities in Australia. No question arises about the validity of these passports. The Tribunal therefore accepts that the applicants are nationals of Vietnam and has assessed their claims accordingly.
136. Only the first named applicant has made claims for protection, with the other applicants relying on their membership of the first named applicant’s family unit.
137. The first named applicant has claimed that his parents were both active members of the former Republic of Vietnam armed forces and that they were both forced to undertake re-education after the end of the Vietnam War in the 1970s. He has further claimed that his mother’s re-education was extended and particularly arduous, and that she suffered both mentally and physically, which may have led to her illness in the 1990s and her death in 2008. In support of these claims, the first named applicant has provided copies of documents, together with translations, verifying the completion of re-education by his parents and their return into the community in Vietnam.
138. On the evidence before it, the Tribunal accepts that the first named applicant’s parents were active members of the Republic of Vietnam armed forces during the Vietnam War, that they were sent to re-education after the war ended and that his mother in particular endured significant hardship during her extended re-education period.
139. The first named applicant has claimed that due to his parents’ profile as former members of the Republic of Vietnam armed forces their family members, including the first named applicant, were discriminated against in Vietnam for their actual and imputed political opinion as supporters of the old Republic of Vietnam regime and therefore as opponents of the current government of Vietnam that is controlled by the Communist Party of Vietnam.
140. The Tribunal accepts, on the basis that his parents were known to have been active in the Republic of Vietnam army, that the first named applicant’s family would have a profile in Vietnam as holding an actual or imputed (or both) political opinion in support of the old regime and, therefore as being opposed to the current government of Vietnam. The Tribunal also accepts that this actual and imputed political opinion would equally apply to the first named applicant, as well as to all other member of his parents’ family.
141. The first named applicant has claimed that he suffered harm in the past in Vietnam for this actual and imputed political opinion by being denied access to some university courses and to some positions of employment that were reserved for supporters of the current government in Vietnam.
142. Country information accessed by the Tribunal indicates that even today, although more opportunities are available, membership of the Communist Party of Vietnam provides better access to social and economic opportunities. The latest Department of Foreign Affairs and Trade Country Information Report Vietnam (11 January 2022) states as follows:
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.

143. The same report also discusses more specifically how people whose relatives were seen as supporters of the Republic of Vietnam during the Vietnam War have been treated in the past and are treated in Vietnam today:
Some asylum seekers claim that their relatives (often a grandparent) were involved in the Vietnam War in support of South Vietnam and that they face continuing discrimination as a result. In-country sources told DFAT that some subtle discrimination may exist, for example in educational opportunities, but others told DFAT this was previously the case but is no longer true. Alleged discrimination may relate to an inability to join the CPV where party members might have access to opportunities through their connections that others do not have. Experiences in small communities might be different where unwritten laws and customs may cause some low-level discrimination. The yellow and red flag of the former country of South Vietnam is sensitive and cannot be displayed publicly.
On the balance of available evidence, DFAT assesses that discrimination against the relatives of people who were involved in the Vietnam War, if it is exists at all, is low level. DFAT does not rule out the possibility of such discrimination, but is not aware of a strong pattern of such behaviour. The situation would be different for a person who has political opinions that favour a South Vietnamese or pro-American identity

144. This information makes it clear that people with the actual or imputed political opinion of the first named applicant were discriminated against in the past in Vietnam in educational and employment opportunities, although the information suggests that this discrimination is either no longer existence or if it is, it is at a low level.
145. Accordingly, based on this country information, the Tribunal accepts that the first named applicant suffered some discrimination in the past in Vietnam by being denied access to some educational and employment opportunities in the past because of his actual or imputed political opinion as a member of a family that supported the Republic of Vietnam during the Vietnam War. This would include access to the police force and access to studying law, as claimed by the first named applicant.
146. However, as discussed with the first named applicant at the hearing, in his own personal circumstances the first named applicant managed to obtain a degree from a university in Vietnam and managed to hold down stable employment in Vietnam for some years before voluntarily leaving for overseas, first to [Country 1] and then to Australia. As the first named applicant stated to the Tribunal, he also completed military service in Vietnam without suffering any apparent problems.
147. Accordingly, based on the first named applicant having secured a university degree and gainful employment as well as completing military service in the past in Vietnam, the Tribunal does not accept that the discrimination he suffered in the past in Vietnam was of a level or extent where he was denied the capacity to earn a livelihood of any kind where that denial would threaten his capacity to subsist, pursuant to s 5J(5)(f) of the Act, which would constitute serious harm for the purposes of s 5J(4) of the Act.
148. Apart from his claims to have suffered discrimination in relation to educational and employment opportunities, the first named applicant has not made any other claims of having suffered harm in the past in Vietnam.
149. Based on the evidence before it, the Tribunal finds that although the first named applicant did suffer some discrimination in relation to educational and employment opportunities in the past in Vietnam, he did not suffer any serious harm in the past in Vietnam.
150. The first named applicant has stated that if he returned to Vietnam now or in the reasonably foreseeable future, he fears he would suffer serious harm because of his actual and imputed political opinion as a family member of people who were supporters of the Republic of Vietnam during the Vietnam War and because of his actual and imputed political opinion as a person who is opposed to the current Communist Party government of Vietnam.
151. In relation to the first named applicant’s feared harm for reasons of his actual and imputed political opinion as a family member of people who were supporters of the Republic of Vietnam during the Vietnam War, the Tribunal notes the country information referred to above suggests that if any such discrimination still exists in Vietnam today it is at a low level and there is no longer any strong pattern evident of such behaviour. In addition, as discussed with the first named applicant at the hearing, his own history in Vietnam suggests he was able to overcome any such discrimination in the past and was able to both graduate from university and secure ongoing employment.
152. Accordingly, based on the country information referred to above indicating that any such discrimination is low level if it exists at all and based on the applicant’s own background and history as a university graduate with secure employment in the past both in Vietnam and overseas, the Tribunal finds that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future there is no real chance that he would suffer harm for his actual and imputed political opinion as a family member of people who were supporters of the Republic of Vietnam during the Vietnam War.

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.
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.

178. Based on this country information, the Tribunal accepts that political activists and online activists face a risk of harm in Vietnam, including possible arrest and imprisonment. However, the Tribunal has already found that the first named applicant has no profile as a political activist or online activist as a result of his low-level political activities. Accordingly, the Tribunal finds that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future there is no real chance that he would suffer any harm for reasons of being a political activist or online activist as claimed.
179. The Tribunal does accept that the first named applicant has a genuinely held political opinion opposed to the Vietnamese government however this opinion has been held by the first named applicant for a long time, including the periods of time that he lived, studied and worked in Vietnam. The applicant has claimed that in the past in Vietnam he held back his political views for fear of being harmed but that if he did return to Vietnam in the future, he would no longer hold back his views but would freely express them publicly and online. The Tribunal does not accept this claim by the applicant about how he would act upon return to Vietnam because based on his activities in Australia he has not actively participated in public political debate despite the opportunity to do so. Instead, he has confined his activities to attendance at some events held by Vietnamese groups in Australia, private comments to his close friends and some engagement with posts online. Given his past behaviour in Vietnam and given his low level of engagement in political activities in Australia, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that he would voice his political opinion publicly and openly. Accordingly, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm for reasons of his actual and imputed political opinion opposed to the current government in Vietnam.
180. In relation to the low-level political activities of the first named applicant which consist of attendance at various events in Australia and some [social media] posts whilst in Australia, the Tribunal has already found that these activities have not created any adverse interest in him from the Vietnamese authorities in the past, as evidenced by the willingness of the Vietnamese authorities to provide the first named applicant and his family with new passports whilst in Australia. On this basis, the Tribunal also finds that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future, the Vietnamese authorities would continue to have no adverse interest in him because of these activities in Australia.
181. Based on the country information referred to above, the Tribunal accepts that people who express political opinions critical of the Vietnamese government on social media in Vietnam do face some risk of official discrimination. Given the first named applicant’s occasional [social media] posts in Australia that can be deemed to be critical of the Vietnamese government, the Tribunal also accepts that the first named applicant may also be motivated to make such occasional posts upon return to Vietnam.
182. However, the country information referred to above makes it clear that the risk of harm for social media critics depends on local areas and people in large cities are less likely to come to the attention of the authorities than those in rural areas. The country information also highlights that increased frequency of critical or sensitive social media activity increases the risk of adverse attention from the authorities. The country information does indicate that in some cases low-level users of little profile are sometimes subject to fines, arrest and prison sentences and it also suggests that some sources indicate that being low-profile may present a higher risk of arrest because high profile people may be noticed both domestically and internationally. In the first named applicant’s own individual circumstances, he comes from the large city of Ho Chi Minh City and his social media activity is limited to the occasional reposting of third-party content, sometimes with a short comment and other times without any comment, in amongst thousands of other posts which he posts extremely frequently, and which do not appear to contain any political content or flavour whatsoever. The Tribunal considers that the first named applicant’s reposting of third-party content can be distinguished from creation of original political content as he would not be a person who is creating the ‘misinformation’ referred to in the country information. Therefore, based on this country information and based on the first named applicant’s individual circumstances as a resident in a large city and as a person who does not create online content but simply reposts it and comments on it, the Tribunal considers that the risk of harm to the first named applicant if he did return to Vietnam and did choose to continue his social media activity would be remote. Accordingly, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer harm for reasons of his low-level political activities, including his occasional social media posts, opposing the Vietnamese government.
183. The Tribunal has also considered first named applicant’s profile cumulatively as both a person who is a family member of people who were supporters of the Republic of Vietnam and as a person who engages in low-level political activity. However, the country information referred to above makes it clear that if there any discrimination exists against family members of people who were supporters of the Republic of Vietnam today it is low level and the country information relating to treatment of political and online activists indicates that authorities in Vietnam focus on current activities of such activities and there is no indication that a profile as being a family member of people who were supporters of the Republic of Vietnam has any bearing on how the authorities view or treat such activists. Accordingly, on the evidence before it, the Tribunal is not satisfied that if the first named applicant returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reasons of his cumulative profile as both a person who is a family member of people who were supporters of the Republic of Vietnam and as a person who engages in low-level political activity.
184. Having considered the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the first named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
185. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the first named applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the first named applicant will suffer significant harm as defined in s 36(2A) of the Act.

187. The Tribunal has already found that there is no real chance that if the applicant returned to Vietnam he would face any serious harm for reasons of being a family member of people who were supporters of the Republic of Vietnam, for reasons of his actual and imputed political opinion opposed to the Vietnamese government, for reasons of his low-level political activities, including his occasional social media posts, opposing the Vietnamese government or for reasons of his cumulative profile as both a person who is a family member of people who were supporters of the Republic of Vietnam and as a person who engages in low-level political activity. Given that the real risk test for the purposes of s 36(2)(aa) imposes the same standard as the real chance test for the purposes of s 36(2)(a), the Tribunal is accordingly not satisfied that if the applicant returned to Vietnam that there is a real risk that he would suffer any harm for the same reasons.
188. Apart from these claims, the first named applicant has not made any claims that he fears harm for any other reason in Vietnam, and no other claims arise from the facts before the Tribunal. Having considered all of the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the first named applicant will suffer significant harm if he were to return to Vietnam.
189. Accordingly, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the first named applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

191. The second named applicant, the third named applicant and the fourth named applicant have not made any claims any claims of their own instead relying on their membership of the first named applicant’s family unit.
192. Notwithstanding this, the Tribunal has considered whether on the evidence before it the second named applicant, the third named applicant or the fourth named applicant (collectively referred to as “the secondary family members”) would have a profile which would give rise to any claims for protection not articulated by them.
193. The Tribunal accepts that as the secondary family members are related to the first named applicant (being his wife and [children] respectively) and based on the country information referred to above, the Tribunal accepts that if they returned to Vietnam they may be considered to be persons who are part of a family who were supporters of the Republic of Vietnam and who may therefore be imputed with a political opinion opposed to the current government in Vietnam. The Tribunal also accepts, based on the country information referred to above, that as people with such a profile, the secondary family members may face some level of discrimination in educational and employment settings. However, this country information does not indicate in any way that education or employment would be denied to the secondary family members and in fact the country information highlights that over time the opportunities for people with their profile have significantly improved in Vietnam. Accordingly, based on the evidence before it, the Tribunal is not satisfied that if the secondary family members returned to Vietnam now or in the reasonably foreseeable future that this level of discrimination would be of the level and extent that would amount to serious harm pursuant to the refugee criteria.
194. Therefore, the Tribunal is not satisfied, on the evidence before it, that the second named applicant, the third named applicant or the fourth named applicant have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Accordingly, the Tribunal is not satisfied that the second named applicant, the third named applicant or the fourth named named applicant are persons in respect of whom Australia has protection obligations under s 36(2)(a).
195. Having concluded that the second named applicant, the third named applicant and the fourth named applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the third named applicant will suffer significant harm as defined in s 36(2A) of the Act.
196. The Tribunal has already found that if the secondary family members returned to Vietnam now or in the reasonably foreseeable future that they may face a level of discrimination in education and employment opportunities because they are part of a family who were supporters of the Republic of Vietnam in the past and who may therefore be imputed with a political opinion opposed to the current government in Vietnam. However, the country information referred to above does not indicate in any way that education or employment would be denied to the secondary family members and in fact the country information highlights that over time the opportunities for people with their profile have significantly improved in Vietnam. Accordingly, based on the evidence on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk these secondary family members will suffer significant harm as a result of this level of discrimination if they were to return to Vietnam.
197. Apart from this issue, no other claims of feared harm have been raised on behalf of these secondary family members and no other claims arise from the facts before the Tribunal.
198. Having considered all of the claims made on behalf of the second named applicant, the third named applicant and the fourth named applicant individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk these applicants will suffer significant harm if they were to return to Vietnam. Accordingly, the Tribunal is not satisfied that the second named applicant, the third named applicant and the fourth named applicant are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
199. As the Tribunal has found that the first named applicant does not satisfy s 36(2)(a) or (aa), the Tribunal further finds that the second named applicant, the third named applicant and the fourth named applicant each do not satisfy the criterion in s 36 (2) on the basis of their membership of the first named applicant’s family unit or for any other reason.

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision

201. The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Katsambanis
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.
…

[2022] AATA 4737

30 September 2022

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Immigration

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