2011557 (Refugee)

2011557 (Refugee) [2024] AATA 1235 (1 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 2011557

COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Fraser Robertson
DATE:  1 March 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 March 2024 at 2:01pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – social media postings – association with Viet Tan – fear of detention – fear of death penalty – applicant convicted of a serious offence in Australia – period of unlawful residence – delay in applying for protection – disclosure by the Australian government – double jeopardy – sentenced person – decision under review affirmed

LEGISLATION

Australian Border Force Act 2015, ss 4, 42, 44, 45
Criminal Investigation Act 2006 (WA), Part 7
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Misuse of Drugs Act 1981 (WA), s 32A
Privacy Act 1988

CASES

Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227
BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
Fox v Percy [2003] HCA 22; 214 CLR 118
Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 370
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZJYM v Minister for Immigration and Citizenship [2008] FMCA 652
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89
Watson v Foxman (1995) 49 NSWLR 315 at 319
Zhang v Refugee Review Tribunal & Anor [1997] FCA 423

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

INTRODUCTION

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
2.For these reasons, the decision under review should be affirmed.

BACKGROUND

3.The applicant is [an age]-year-old man from Vietnam who arrived in Australia in February 2013 as the holder of a student visa. That visa ceased on 15 March 2015. The applicant was unlawfully in Australia from that period until he was granted a bridging visa on 11 March 2019. The applicant applied for a protection visa on 9 April 2019.

Delegate’s decision

4.The applicant was not invited to attend an interview in relation to his application.
5.The delegate refused to grant the applicant a protection visa on 29 June 2020. The claims made by the applicant were summarised by the delegate as follows:
Since he was in secondary school he discovered that the communist Vietnamese government regime is harsh, has cruel laws and mistreats ordinary people of the country.
When he was a university student he saw bad treatment of people and corruption everywhere. He joined ‘The ‘uni’ student opposition group,’ who opposed the regime as there was no democracy and human rights.
His family had been warned and fined, and he was banned from contacting the opposition group and from continuing to study.
He had an open mind to study and travel abroad in order to see real democracies and human rights, so he could carry his opinions back to Vietnam to fight for freedom, human rights and democracy.
If he returns to Vietnam it is possible he would be held for questioning as a ‘uni’ student who has been opposing the government, seen as ‘anti state government propaganda,’ away from the country for five years and for contacting the ‘uni’ opposition group.
He is often fighting on [social media] which is strongly controlled as ‘Net Control Security,’ he could face a court proceeding and possibly a ‘four to five years term.’
It is possible he could ‘hardly’ seek a normal daily life or to work as he has an ‘opposing regime brain.’
His parents would become further mentally stressed as the local authorities would threaten them daily and demand financial corruption.
There is no netter [sic: better] results within the country, the communist government are running the same laws across the country, there is corruption everywhere, no financial supports, no accommodations and it’s only getting worse. He cannot relocate.
If he returns he will be highly mistreated and possible political issues would arise.
The communist government would never offer protection to anyone.
6.That was a fair summary of the applicant’s claims for protection contained in his protection visa application. I respectfully adopt that summary.
7.In refusing the applicant a protection visa, the delegate concluded that the applicant’s description of his experiences in Vietnam was not commensurate with that of a high-profile political activist. The delegate was critical of the lack of specificity and detail in some of the applicant’s claims, in particular his claims that “his family had been warned and fined, and he was banned from contacting the opposition group, and from continuing to study.”
8.Based on the applicant’s claims, their findings and the available country information, the delegate was not satisfied that the applicant:
(a)would face a real chance of persecution for reasons relating to his opposition to the government now or in the foreseeable future; or
(b)that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Vietnam that there is a real risk that the applicant would suffer significant harm.

Review application

9.The applicant applied to the Tribunal for review of the delegate’s decision on 13 July 2020. The applicant provided a copy of the delegate’s decision record and a copy of the notification of the refusal to the Tribunal.
10.The applicant had been unrepresented in respect of the review application. However, shortly prior to the hearing he appointed a lawyer, Ms Kate Hoang, to represent him.
11.On 9 February 2024, Ms Hoang filed, on behalf of the applicant, a set of written submissions, a signed statement from the applicant and a document entitled ‘photo evidence booklet’ (‘PEB’).
12.The applicant appeared before the Tribunal on 13 February 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
13.At the conclusion of the hearing Ms Hoang sought, and was granted, additional time to provide further information and submissions.
14.On 23 February 2024, Ms Hoang filed on the applicant’s behalf a document entitled ‘updated photo evidence booklet’ (‘UPEB’) dated 19 February 2024.
15.On 27 February 2024, Ms Hoang filed another set of written submissions (‘supplementary submissions’). Both sets of submissions filed by Ms Hoang were concise and assisted in determination of this application.

ISSUE

16.The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act. There is no suggestion that the applicant satisfies either s 36(2)(b) or (c) of the Act.

RELEVANT LAW

Criteria for the grant of a protection visa

17.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An extract of key provisions of the Act is set out in the attachment to this decision.
18.An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they are a person in respect of whom Australia has protection obligations either:
(a)under the ‘refugee’ criterion in s 36(2)(a);
(b)on other ‘complementary protection’ grounds; or
(c)because they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
19.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.
20.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.[1]
[1]Migration Act 1958 (Cth) s 5H(1)(a).
21.A person has a well-founded fear of persecution if:[2]
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (refugee nexus);
(b)on return to the country of their nationality, there is a real chance they would be persecuted for one or more of those reasons; and
(c)the real chance of persecution relates to all areas of the relevant country.
[2]Migration Act 1958 (Cth) s 5J(1).
22.A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.[3]
[3]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
23.If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a),[4] that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[5] Further, the persecution must involve serious harm to the person[6] and systematic and discriminatory conduct.[7]
[4]Namely, race, religion, nationality, membership of a particular social group or political opinion.
[5]Migration Act 1958 (Cth), s 5J(4)(a).
[6]Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[7]Migration Act 1958 (Cth), s 5J(4)(c).
24.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–5LA, which are extracted in the attachment to this decision.
25.If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (the ‘complementary protection criterion’).[8]
[8]Migration Act 1958 (Cth) s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]–[5] (Kiefel CJ, Nettle, Gordon JJ).
26.The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[9]
[9]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
27.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.
28.‘Significant harm’ for these purposes is exhaustively defined in s 36(2A).[10] A person will suffer significant harm if they will:
(a)be arbitrarily deprived of their life;
(b)have the death penalty carried out on them;
(c)be subjected to torture;
(d)be subjected to cruel or inhuman treatment or punishment; or
(e)be subjected to degrading treatment or punishment.
[10]Migration Act 1958 (Cth), s 5(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
29.‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Act. Those definitions are set out in full in the attachment to this decision. Sections 36(2A)(d) and (e) deal with significant harm comprised of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”. In that regard “cruel or inhuman treatment or punishment” means:
(a)an act or omission by which, among other things, “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”.
30.The remaining type of significant harm, “degrading treatment or punishment”, means “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”.
31.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.[11] These arise where:
(a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
(b)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk[12] that the applicant 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 applicant personally.
[11]Migration Act 1958 (Cth), s 36(2B).
[12]The level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (Lander, Jessup and Gordon JJ).
32.The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[13]
[13]BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 at [32]; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J); MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.
33.Section 36(2B)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

Mandatory considerations

34.I must take 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[14]

[14]See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

ANALYSIS, FINDINGS AND REASONS

35.Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[15] The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, their claims.
[15]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
36.When assessing the claims made by an applicant, I am not required to uncritically accept any or all of the allegations made by an applicant.[16] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.[17]

[16]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).

[17]CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).

Country of nationality

37.The applicant claimed to be a national of Vietnam. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Vietnam is the applicant’s country of nationality and the receiving country.

The applicant’s claims – an overview

38.As noted above, the applicant maintains the claims made by him in his protection visa application. Those claims were helpfully and succinctly summarised by the written submission filed by Ms Hoang as follows:[18]
The applicant claims to have raised some critical political opinions against the Vietnamese Government that can be considered as ‘anti-state government propaganda’. The applicant believes he would be subjected to questioning, and detainment if forced to return to Vietnam.
[18]Applicant’s Submissions dated 9 February 2024, [2].
39.Notwithstanding the observations of the delegate to which I have referred, the applicant’s statutory declaration did not elaborate on the claims made by him in respect of his time in Vietnam. He did, however, provide the PEB document . The PEB contained screenshots of [social media] posts from an organisation known as ‘Viet Tan’ which the applicant had reposted on his own [social media] profile.

40.In this decision I will approach the applicant’s claims in respect of his political opinions both cumulatively and individually. I have considered, among other things, whether the applicant’s activities in Vietnam involve a real chance of serious harm to the applicant if he were to be returned to Vietnam. I also have considered whether his activities in Australia, in relation to the Viet Tan, involve a real chance of serious harm. I also have considered whether both of those aspects combined operate to expose the applicant to a real chance of serious harm if he were returned to Vietnam now, or in the reasonably foreseeable future.
41.The applicant further claims that he faces a real chance of serious harm because of his conviction, in Australia, of an offence of possessing a prohibited drug with intent to sell or supply. In that regard, the applicant claims that “the Vietnamese authorities will be notified of my activities and criminal offences in Australia as I am still serving my parole sentence”.[19] He claimed that he would be interviewed on return and that he believes that the Vietnamese authorities “have the power to review my sentence and subject me to punishment under Vietnamese law.”[20] The applicant fears that he would face a sentence ranging between 10 or more years to an indefinite period of imprisonment. He also fears that he may be exposed to the death penalty.

[19]Applicant’s Statutory Declaration, [19].

[20]Applicant’s Statutory Declaration, [20].

The applicant’s personal circumstances and evidence

42.The applicant was born in [specified year] in Ho Chi Minh City, Vietnam to parents of Vietnamese citizenship.[21] He identifies as Vietnamese[22] and of ‘Kinh’ ethnicity.[23] He does not identify with any religion.[24] The applicant completed secondary school in [year range] and thereafter attended university in Ho Chi Minh City, studying [course 1].
[21]PV application, Part C, questions 17–18.
[22]PV application, Part C, question 29.
[23]Applicant’s Statutory Declaration, [5].
[24]PV application, Part C, question 30.
43.The applicant's parents both live in Ho Chi Minh City, in the same home that the applicant grew up in. His parents operate a [business]. The applicant has a brother who is [age] years old who also lives in Ho Chi Minh City. His brother works in his parents’ business.
44.The applicant worked in that business before he left Vietnam. The applicant attended university for two years in Ho Chi Minh City. He did not finish that course. He ceased studying in the beginning of [year]. He claimed that he ceased studying because he was oppressed by the government in Vietnam and wanted to become an overseas student.

Political involvement

45.The applicant claimed that he attended a protest in 2012 in relation to Hoang Sa[25] and Truong Sa.[26] He claims that he attended this event with a group of friends in Vietnam who he claimed he would talk politics with. He claims he still communicates with these friends. The applicant did not request the Tribunal to take any evidence from them and no documentary evidence of any communications was provided.
[25]The Paracel Islands.
[26]The Spratly Islands.
46.The applicant claims that following his participation in that protest police came to his home to discuss “disorderly behaviour in the public”. He claimed that was in November or December 2012. He claims that he was not home at the time. He further claims that the Police attended his university when attempting to locate him, which caused him some shame. The applicant’s evidence was that he eventually spoke to police sometime later, likely in or around December. He claims that he was told that he was not allowed to attend protests anymore, otherwise he might be jailed. The applicant’s evidence was that nothing further resulted from this.
47.Despite the claim in his protection visa application, he did not give any oral evidence about his family having been fined because of his participation in that protest.
48.In his protection visa application, the applicant claimed that he was “often fighting on [social media]” which is strictly controlled. Despite those claims and the applicant’s demonstrated ability to provide [social media] evidence as evidenced by the PEB, the applicant has not provided any documentary evidence of his earlier “fighting” on [social media]. He did not give any detailed or specific evidence about this at the hearing.
49.Following this, the applicant claims that he applied for a visa to come and study in Australia. The applicant applied for and was granted his passport in [2013].[27] He claimed that his visa was approved in [2013], and he left for Australia [afterwards].
[27]PV application, Part C, question 47.
50.The applicant enrolled in a [course 1] at a [university]. He first claimed that he studied for a period of almost two years. He claimed he supported himself and paid for his studies by borrowing money from his uncle, receiving money from his family and working 10 hours a week in a [shop]. The applicant’s evidence was that he was paid cash for this job and did not pay tax.
51.The applicant claimed that he ceased studying because he was unable to afford the cost of living. He also claimed that he was depressed because his relationship with his long-term girlfriend in Vietnam was ended by her. Whilst he claimed that he was ‘depressed’, he agreed that he never saw a doctor, psychologist or psychiatrist about his depression until after he was in prison.
52.The applicant explained that, despite being enrolled, he stopped going to university for Semester 1 in 2014. Unsurprisingly, this led to the applicant failing his units. He did not re-enrol for semester two.
53.The applicant claimed that around midway through 2014 he ceased working at the [shop]. He claims that his family supported him during this time when he was without employment. He explained that his family thought that he was still attending university and they did not find out that he had stopped until “years later”.
54.The applicant was next employed as [an occupation 1] for a company which manufactured [products]. He claimed that he worked around 20 hours per week. This work was again for cash with no tax paid.
55.The applicant’s student visa expired in early 2015. He did not apply to renew it. He conceded that he was aware that he was thereafter in Australia unlawfully.
56.The applicant continued to work as [an occupation 1] until around the middle of 2018 when he obtained employment [as an occupation 2] for a small factory. He worked 30 or 40 hours per week, which he agreed was nearly full time. Again, the applicant conceded that he was paid in cash and did not pay tax on his earnings.
57.The applicant applied for his protection visa in April 2019. He explained that he was given information about applying for a protection visa by friends.
58.The applicant claimed that he worked in this role for approximately one year, eventually losing that job because of the COVID-19 pandemic. As the applicant was not formally employed, he was not eligible for jobkeeper payments.
59.I asked the applicant about whether he had any other jobs in Australia after this job. The applicant claimed that he did not, adding that he could not find a job. When asked how he was able to support himself, he claims that when he lost his job, he had around $10,000 in savings which he exhausted after about a year. He also referred to receiving $3,000 from his family as a one-off payment.

Circumstances related to criminal convictions

60.The applicant claims that in 2021 he was involved in a car accident. He claims that he received a demand for $[amount] from an insurance company. He claims that he was concerned about going to court given his visa status. The applicant claims that he was forced to borrow money at a high interest rate to pay for the damage and avoid proceedings being commenced against him.
61.The applicant claims that he was unable to repay that loan. He was offered a solution. He was told that his debt would be paid if he transported drugs between [two cities]. The applicant did this, transporting a significant quantity of cannabis [between these cities] in March 2022.
62.The applicant’s evidence was that he knew that he was transporting drugs, but he did not know the quantity involved. He claimed that he was unable to open the bags and did not know where they were being taken to. The applicant’s evidence was that he was arrested when he retrieved the bags from the baggage [carousel]. The applicant claimed that he paid for the ticket to travel between [the two cities].
63.When I asked the applicant how he was able to afford a plane ticket between [the cities] in circumstances where his evidence appeared to be that he had exhausted his savings and was not working, the applicant then claimed that he obtained short-term work for a period of four months picking [fruit]. I asked him why he had earlier told me that he had not worked after his job [as an occupation 2]. He was not able to adequately explain at all why he had not referred to that employment earlier.
64.Following his arrest, the applicant was interviewed and his evidence was that he answered the questions asked by the WA police with “no comment”. The applicant was charged with possession of cannabis with intent to sell or supply in March 2023. In addition to the drug charge, the applicant was also charged with failing to comply with a data access order[28] because he refused to unlock his phone for police after being ordered by a court to do so. He claimed that his family had been threatened with harm if he cooperated with police and that was why he refused to comply with the data access order.
[28]Criminal Investigation Act 2006 (WA), Part 7.
65.The applicant was refused bail when he appeared in [Court 1], I infer because the case against the applicant was strong, the quantity of the prohibited drug was substantial, and a term of immediate imprisonment was highly likely.
66.The applicant was convicted of two offences in May 2023. One relating to the drugs and another in relation to a failure to obey a data access order.[29] He was sentenced to a term of immediate imprisonment of [period] in respect of the drug charge and [period] immediate imprisonment in respect of the data access order charge. Those sentences were made cumulative on each other, resulting in a total effective sentence of [period]. The sentence was backdated to the date of his arrest. The applicant was made eligible for parole. The mandatory drug trafficker declaration was made.[30]
[29]Applicant’s Statutory Declaration, [9].
[30]Misuse of Drugs Act 1981 (WA), s 32A.
67.The applicant claims that whilst he was in prison, he was visited by members of the Australian Border Force (‘ABF’). He claims that those agents told him that if the Vietnamese government asks for information about the applicant, “they” (i.e. the ABF and/or the Australian government) would be required to provide it. That information would include, according to the applicant, information about his convictions.
68.When the applicant was subsequently released on parole, he was transferred to a detention centre. I infer that occurred because, as a result of his convictions and sentence, the applicant’s bridging visa was cancelled. The applicant’s parole ends [in] June 2025.[31]
[31]Applicant’s written submissions dated 27 February 2024, [1].
69.The applicant’s evidence was that if he was returned to Vietnam, he would continue to engage in protests and express a political opinion that is opposed to the Vietnamese government.

CREDIBILITY

70.In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility.
71.Assessment of credibility is an inherently difficult task.[32] The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.[33] Inconsistencies in an applicant’s account may or may not be significant.[34] I must assess the significance of any inconsistency found to exist, the weight to be given to it, and carefully consider whether there is an acceptable explanation for the inconsistency such that it should attract little if any weight.[35] I have done so.
[32]See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
[33]See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[34]ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[35]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [28] (Kenny, Griffiths and Mortimer JJ); approved in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [180] (Murphy, Mortimer and O’Callaghan JJ).
72.I must be cautious when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.[36] I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.[37] I am not required to uncritically accept any or all of the allegations made by an applicant.[38] Any assessment of credibility I make must be legally reasonable.[39]
[36]See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[37]Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
[38]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[39]BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] (Rangiah, Perry and Bromwich JJ); see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 (Flick J).
73.An applicant’s delay in applying for a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[40] A delay of three months has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[41] However, delay cannot, of itself, be determinative of credibility or the question of whether the applicant has a well-founded fear of harm.[42]

[40]Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 370 at [22] (Emmett J); Zhang v Refugee Review Tribunal & Anor [1997] FCA 423 (Goldberg J); SZJYM v Minister for Immigration and Citizenship [2008] FMCA 652 at [82] (Barnes J).

[41]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.

[42]SZJYM v Minister for Immigration and Citizenship [2008] FMCA 652 at [82] (Barnes J).

The applicant’s credibility

Delay in applying for protection

74.The applicant arrived in Australia in or about February 2013. His student visa expired in early 2015. He did not seek to renew it. Following this, the applicant remained in Australia unlawfully. He did not apply for a protection visa until April 2019, more than six years after his initial arrival and more than four years after his student visa expired and he became unlawful. That is, on any view, a very significant delay.
75.The applicant sought to explain this delay on the basis that he was unaware of the ability to apply for a protection visa until his friends told him about it in 2019. When asked, however, the applicant conceded that he did nothing to research avenues through which he might be able to remain in Australia lawfully.
76.When pressed as to why he didn’t do any research, the applicant first claimed that he “did not think that he could be deported”. He explained that his understanding was that so long as he did not commit an offence, he would not be “deported”. He claimed that he knew many people remained in Australia after their visa expired but that ‘nothing happened to them’. He further claimed that his depression impeded his ability to research visa options. He also claimed that he did not think he could apply for a visa as his visa had expired.
77.Later in the hearing, the applicant claimed that he did not apply for protection because he did not have a visa. He claimed that he was afraid that if he applied for a visa, that he would be “deported”. When asked about how that evidence reconciled with his earlier evidence about believing that he could not be deported unless he committed an offence, the applicant conceded that his earlier evidence was “a mistake”. He conceded that he was, in fact, aware that he could be deported for not having a visa before he applied for protection.
78.The delay of the applicant in applying for protection in Australia is significant. I do not accept that a professed lack of knowledge about the ability to apply for a protection visa is, without more, sufficient to adequately explain what is, on any view, a very significant delay in applying for protection. The applicant took no proactive steps to investigate his legal options, evidently content to remain in Australia unlawfully instead. I accept that he was likely somewhat concerned about his unlawful status. However, that would seem to be a reason for the applicant to conduct some research, or seek advice, rather than ignore his situation.
79.In circumstances where the applicant was able to engage in tertiary study in Australia, it is difficult to accept that he was unable to undertake even some basic research. I do not accept that the applicant’s “depression” adequately explains such a significant delay. The applicant did not provide any independent, or medical, evidence about his claimed depression, including when it started and how, if at all, it impeded his functioning. That lack of evidence is something I attach weight to, particularly where based on the applicant’s evidence it does not appear that his depression impeded his ability to work at all. Rather, in all the circumstances, I infer that the applicant was uninterested, or ambivalent, about regularising his visa status in Australia.
80.The applicant arrived in Australia on a temporary visa with no guarantee of renewals or subsequent visas. Moreover, in circumstances where the applicant’s evidence eventually was that he knew he was liable to deportation without a valid visa, it raises some doubt about whether the applicant did, in fact, fear being returned to Vietnam as he now claims. It is implausible that if he did have such a fear of harm that he would not have attempted some level of research into the availability of protection from the Australian government between his arrival in 2013, or at least from the time his student visa ceased in early 2015, and his eventual protection application in 2019.

Other credibility related issues

81.The applicant was prepared to engage in the trafficking of drugs for his own personal gain. Whilst he claims, and I accept, that he could not open the suitcases containing the drugs, he conceded that he knew a significant quantity was likely involved. The applicant’s willingness to transport drugs for his own personal gain may suggest that he has a lack of respect for the law in Australia. Moreover, the applicant’s refusal to comply with an order from a court to unlock his phone is also suggestive of a lack of respect for the law in Australia.
82.I accept that his conduct in relation to the charges can be mitigated to some extent by the circumstances that he found himself in. As was accepted by [the named Judge] in sentencing the applicant, and which I also accept, he owed a significant amount of money and faced threats of harm if he provided information to police. It is entirely plausible that persons involved in trafficking significant quantities of drugs would make threats to dissuade a person from cooperating with police. For that reason, I am not prepared to attach any weight to the offences as demonstrating an inherent lack of credibility on the applicant’s part.
83.I do not consider that I can adopt that approach in relation to other aspects of the applicant’s conduct whilst in Australia. The applicant’s willingness to remain in Australia unlawfully, engage in employment when not entitled to do so and his willingness to avoid his taxation obligations may indicate a lack of respect of Australian laws. In those circumstances, it raises the question about the weight, if any, that I place on the applicant’s promise to tell the truth when giving evidence in relation to his protection visa application.
84.On his own concession, the applicant was quite prepared to work for ‘cash’, thus avoiding his responsibility to pay tax on income that he earned. That conduct was not isolated but occurred over several years and with multiple employers. The applicant only ever filed a tax return in 2015. He claims that he did so because he worked a job picking [vegetables] where he was required to provide a tax file number and tax was withheld.
85.I do not overlook that the applicant did, however, admit to working unlawfully and avoiding his responsibility to pay tax at the hearing. However, in the circumstances those concessions were inevitable. The applicant could not have seriously suggested that he had been able to live in Australia since his student visa expired in early 2015 until he was arrested in 2022 without working unless he was able to produce evidence of significant financial support received from overseas. Even so, as I explain below, the applicant was not entirely candid about the extent of his work initially during the hearing and in his protection visa application.
86.I also have concerns about the applicant’s candour when giving his evidence.
87.The applicant’s evidence was, at first, that he did not work following the COVID-19 pandemic. That evidence was given quite clearly and unambiguously. That evidence changed later in the hearing to include a claim that he had worked “picking [fruit] for four months”. The context in which that evidence changed is important. Whilst giving evidence about the circumstances leading to his arrest, I asked the applicant who paid for his flight between [the two cities]. The applicant claimed that he paid for that flight. When I pressed the applicant about his capacity to pay for that flight, in circumstances where his earlier evidence had been that he had not worked since 2020, he claimed that he had worked picking [fruit] for four months.
88.The change in the applicant’s evidence was not brought about because his earlier evidence had been incorrect or incomplete, but rather because of a difficulty, or perceived difficulty, with another aspect of his evidence.
89.The apparent lack of candour by the applicant in respect of his employment continues from the approach that he appears to have taken in his protection visa application. Despite the application form asking[43] for a very detailed history of employment and unemployment, the applicant’s answer was only to list that from “2015 until current” he worked for “Fruits/Vegies Companies etc. (various at call)” in “farming industries”. I observed that the question contains a note which advises:
Note: Provide your employment and unemployment history with no gaps in the timeline. If there are gaps, you must provide an explanation. (emphasis as per original)
[43]PV Application, Part C, Q 71.
90.Despite that instruction in the application form, the applicant provided a vague and generalised response. Moreover, the response that was provided was not consistent with the evidence given by the applicant at the hearing. Indeed, at the hearing the only evidence of the applicant working in employment relating to picking fruits and vegetables was in relation to the four-month period where he was picking [fruit], which was shortly prior to his arrest, and when he picked [vegetables] for a period. Otherwise, the applicant’s employment was, on his own case, in non-farming industries.
91.I was also concerned about the plausibility of aspects of the applicant’s evidence. The evidence that he gave in respect of what he was allegedly told by ABF officers was, in my assessment, entirely implausible. Moreover, it was also evidence that emerged for the first time at the hearing and was not included in the statutory declaration made by him and provided to the Tribunal on 9 February 2024.
92.That evidence appeared to form a significant part of the subjective basis for the applicant’s fear of harm on account of his convictions and fear of further penalty being imposed. The applicant’s statutory declaration, prepared with the assistance of his lawyer and lodged only four days before the hearing, did not expressly refer to any such conversation with ABF officers. That statutory declaration relevantly stated that:
19. If I was to return to Vietnam, the Vietnamese authorities will be notified of my activities and criminal offences in Australia as I am still serving my parole sentence.
20. I would most likely be interviewed by the Vietnamese border authority. Once aware, I believe the Vietnamese authorities will have the power to review my sentence and subject me to punishment under Vietnamese law.
93.On one construction of paragraph 19, the reference to “the Vietnamese authorities will be notified” might, implicitly if not expressly, refer to the conversation the applicant is alleged to have had with ABF officers. However, in assessing the weight to be given to that explanation, I consider that the statutory declaration ought to be put in the context of what is said in the following paragraph and read together with the submissions filed on the applicant’s behalf.
94.The subsequent paragraph refers to a likely interview with the Vietnamese border authority. It records that once they are “aware”, he believes they will have the power to review his sentence and further punish him. He did not descend to any detail about how the Vietnamese border authority might become “aware”. Although the previous sentence referred to an interview. The submissions filed on his behalf, however, suggest that when interviewed by Vietnamese border authorities, “it is expected the applicant would tell the truth” about his criminal charges. No other basis was expressly put as to how the Vietnamese authorities may become aware of the applicant’s convictions.
95.I observe that the applicant did not, in his statutory declaration, declare that he would tell the truth to the Vietnamese border authorities. The applicant claimed at the hearing that he would do so. As I explained to the applicant, I have difficulty accepting that in circumstances where he was, quite understandably for reasons I have already given, prepared to not comply with a court order because of potential harm to himself or others if he were to do so.
96.The applicant’s evidence was likely prepared with some haste and in circumstances where he was in detention and his lawyer was in another state. For that reason, I do not attach significant weight to the failure of the applicant to refer to what was allegedly said to him by the ABF whilst he was in prison. However, the lack of any express claim that it would have been the ABF or the Australian government that would inform the Vietnamese authorities about the applicant’s convictions prior to the hearing may be suggestive of recent invention or desperate embellishment.
97.In any event, the evidence given by the applicant in relation to what was said to him by ABF officers is, on its face, frankly implausible. As I discuss below, I am not satisfied that there is a lawful basis upon which that could occur. Based on what I consider to be the inherent implausibility of the fact of and content of the alleged conversation together with the lack of any support in law for what was suggested during that conversation to actually occur, I do not accept that such a conversation occurred. I consider that the applicant must either have been mistaken in his evidence or that he has embellished this aspect of his evidence to lend credence to his fear of harm on the basis of his criminal convictions.

Disclosure by ABF or Australian government

98.I have not been taken to any law that would permit, let alone require, the ABF (or more broadly the Australian government) to disclose to the Vietnamese government on their request, information about either criminal convictions, visa applications or the visa status, from time to time, of the applicant. I am not aware of any such laws. Neither the Act nor the Australian Border Force Act 2015 (Cth) (the ABF Act), in my view and for reasons which I set out more fully below, supports the existence of such a power or obligation.
99.Indeed, much to the contrary, s 42 of the ABF Act creates an offence of disclosing “Immigration and Border Protection information”.[44] Whilst there are exceptions to that provision,[45] none of the exceptions permit disclosure to a foreign country or an agency or authority of a foreign country. Indeed, the power to prescribe exceptions, by regulation, expressly excludes the ability to prescribe a foreign country or an agency or authority of a foreign country as a body to which the information can lawfully be provided to.
[44]Australian Border Force Act 2015 (Cth), s 42.
[45]Australian Border Force Act 2015 (Cth), s 44.
100.Disclosure of Immigration and Border Protection information is dealt with in s 45 of the ABF Act. That permits disclosure of that type of information to foreign countries, agencies, or authorities for a particular purpose (as identified in s 46) and if there is “an agreement” in force between Australia or it is otherwise required or authorised by law. As I observe below, there does not appear to be any such agreement that would apply to the applicant and permit, let alone require, the disclosure of his criminal record to the Vietnamese authorities.
101.I put to the applicant that he would be returned to Vietnam represented as a person whose visa has expired. The applicant disagreed and re-iterated that ABF would tell the Vietnamese government about his conviction. In the circumstances, I did not regard this evidence as being particularly plausible in light of the ABF Act. In making that observation I do not conclude that the applicant was dishonest about his evidence, rather I consider that the applicant was likely mistaken in his recollection or understanding of the conversation. The observations that I make below in respect of memory apply, in my view, with similar force to this evidence.

Credibility conclusions

102.As already explained, I attach no weight to the applicant’s conduct that resulted in his convictions, or the fact of those convictions in assessing his credibility or his reliability.
103.I am concerned about the apparent lack of respect that the applicant had in relation to engaging in employment when not entitled to do so and in respect of his taxation obligations. Those are matters to which I attribute some weight, albeit fairly minor, weight. I do not regard them as being determinative of the applicant’s credibility. Rather, they are something that I weigh in my overall assessment of the applicant’s credibility.
104.Assessing the credibility of the applicant is a difficult task. Whilst I have some concern about his lack of candour, it does not necessarily follow that I conclude that the applicant actively sought to give false evidence or mislead the Tribunal. I also considered that in this matter the ability to see and hear the applicant give evidence was of considerable significance to me. Whilst I did not overlook observations about the risks of overreliance on demeanour,[46] this is a case where I nevertheless considered that the applicant’s demeanour when giving evidence was actually a factor that added to his credibility as opposed to diminished it.
[46]See, for example, the observations of Kirby P (as his Honour then was) in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588 at 617: “There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 LI L Rep 140 at 152 Atkin LJ remarked that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’.”
105.In the circumstances, I consider that the applicant was generally credible in his evidence in respect of his experiences in Vietnam. I consider that the applicant was much more guarded in respect of his experiences in Australia. I have little hesitation in accepting the applicant’s oral evidence about his experiences in Vietnam, save in one respect relevant to the reliability of the applicant’s evidence in respect of what was allegedly said to him by police, which I refer to in more detail below when considering the applicant’s profile.
106.I have considerably more hesitation in accepting the applicant’s oral evidence about his time and actions in Australia.

Country information

107.In determining this review application, I have considered the 2022 DFAT Report[47] in relation to Vietnam.

Vietnam generally

[47]‘DFAT Country Information Report - Vietnam - 11 January 2022’, Department of Foreign Affairs and Trade, 11 January 2022, p. 11, 20220111094403 (2022 DFAT Report).

108.Vietnam is a one-party communist state where opposition pro-democracy groups are outlawed and considered terrorist organisations.[48] Vietnam has a single political party, the Communist Party of Vietnam (CPV). CPV members hold all senior government and political positions. DFAT reports that:
The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power. Elections are held for the National Assembly, most recently in May 2021. Ninety-two per cent of candidates in the National Assembly are members of the CPV. Real political power is held in CPV structures rather than the National Assembly.
[48]‘DFAT Country Information Report - Vietnam - 11 January 2022’, Department of Foreign Affairs and Trade, 11 January 2022, p. 11, 20220111094403.
109.Opposition pro-democracy groups are often ‘subject to arrest and imprisonment’[49] and therefore are typically based overseas.[50] Opposition parties are effectively illegal.[51]
[49]‘Freedom in the World 2023 – Vietnam’, Freedom House, 13 March 2023, B2, 20230417082342; ‘Report on Human Rights in Vietnam 2022–2023’, Vietnam Human Rights Network, 15 October 2023, p. 31, 20231122095434.
[50]‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 9 September 2019, p.9, 20190917095808.
[51]2022 DFAT Report, [3.49].
110.The government of Vietnam allows some forms of advocacy and activism, particularly on local practical issues like environmental concerns and development. The applicant agreed with that information. However, nonetheless, activism for broader human rights, democracy, and individual freedoms is viewed as more sensitive and can result in arrests.[52] Protests, increasingly moving online, are often centred around livelihood and land rights issues, with recent significant anti-China protests highlighting concerns over land acquisition and data storage laws by foreign companies.[53]
[52]DFAT Report, [3.50].
[53]DFAT Report, [3.51].
111.Vietnam’s constitution protects the right to assembly, but this is restricted in practice by penal code provisions against activities deemed against the government. Official approval is required for protests, which is usually denied for sensitive topics. Subjects considered sensitive can vary, but human rights, environmental issues, and calls for democracy are consistently sensitive.[54] Times of heightened political activity, like the National Congress, often see increased crackdowns on activists.[55]
[54]DFAT Report, [3.52].
[55]DFAT Report, [3.54].
112.Other country information indicates that:[56]
[56]See UK Home Office, ‘Country Policy and Information Note, Vietnam: Opposition to the State’, Version 4.0, August 2023, [10.5.1].

They [protestors] can be subject to house arrest, they may be threatened, police may just come in and beat them up. They may be able to just make their protest. There is a whole variety of actions that may occur depending on the timing and sensitivities involved. ‘There would be a blacklist of known activists and they would be monitored. In a sensitive period, it may be stepped up. ‘… I don’t know how they deal with all the protestors. Some say they were interviewed some say beaten by police. attendees do get cracked down on. It is more likely the organisers will receive the harsher sentence to be made example of. High profile more at risk- Yes. ‘If they are low level then the monitoring will be less than high level. There may be some particular figures of interest. They might have to have regular catch ups and ‘have a chat’ to discuss what their thinking is of particular policy. It could be quite aggressive and not very nice but is used to keep an eye on them.’ [sic]
113.There is even some fairly recent suggestion that “[p]ublic gatherings, especially those related to “sensitive” topics such as human rights, democracy and civil society, can be permitted by the authorities, but are closely monitored by the public security police.”[57]

Viet Tan

[57]See Bertelsmann Stiftung, ‘BTI 2022 Country Report Vietnam’, 23 February 2022: [ 2016, Vietnamese authorities declared the US based pro-democracy group, The Vietnam Reform Revolutionary Party (or Viet Tan/Việt Tân), ‘a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished’.[58] Individuals – including Australian citizens – with links to Viet Tan, have been sentenced to lengthy prison sentences for engaging in terrorist activities and convicted of working to “fund terrorist operations”.[59]

[58]‘Vietnam declares US-based activist group is a terrorist organization’, Reuters, 08 October 2016, CX6A26A6E10990; ‘OSAC Country Security Report Vietnam’, Overseas Security Advisory Council (OSAC), 12 July 2022, p. 3, 20220927150411.
[59]‘OSAC Country Security Report Vietnam’, Overseas Security Advisory Council (OSAC), 12 July 2022, p. 3, 20220927150411.
115.Chau Van Kham was sentenced to 12 years’ imprisonment on national security charges.[60] He was initially arrested after entering Vietnam on a false passport.[61] He was released in July 2023.[62]
[60]‘Australian democracy activist freed from prison in Vietnam’, Al Jazeera, 11 July 2023, 20231025092900.
[61]‘Australian democracy activist freed from prison in Vietnam’, Al Jazeera, 11 July 2023, 20231025092900.
[62]Amnesty International, ‘Retired Sydney Baker Chau Van Kham Freed from Vietnamese Prison…’, 11 July 2023: [ Rights Watch reports on a number of political prisoners in Vietnam:[63]
On July 13, a Vietnamese court rejected an appeal from Truong Van Dung, the land activist. He will need to serve out his six-year sentence for “propaganda against the state.” Even before this sentence, Truong Van Dung had experienced years of government harassment and intimidation, including police interrogations, house arrest, a travel ban, and physical assaults.
Meanwhile, Tran Huynh Duy Thuc, once a leading campaigner for information technology and digital communications in Vietnam, is serving a 16-year prison sentence. He was convicted for calling for democracy and a multiparty political system.
A well-known journalist, Pham Doan Trang, is serving a nine-year prison sentence. She dared to write articles and books that the Communist Party of Vietnam disapproved of. Her writing touched a range of issues including lesbian, gay, bisexual and transgender rights; women’s rights; environmental issues; the territorial conflict between Vietnam and China; and legal reform.
In 2022, the Vietnamese government stepped up the repression of environmental activists. The courts convicted a journalist, Mai Phan Loi; an environmental lawyer, Dang Dinh Bach; and an environmental defender, Nguy Thi Khanh, on politically motivated charges of alleged tax evasion. It didn’t matter that Nguy Thi Khanh was the 2018 winner of the internationally prestigious Goldman Environmental Prize, honoring grassroots environmental activists. In May, following an international outcry, Nguy Thi Khanh was released five months before the end of her prison sentence.
But the Vietnamese authorities quickly arrested another prominent environmental campaigner, Hoang Thi Minh Hong, also on wrongful tax evasion charges.
[63]‘Vietnam’s Crackdown on Dissent’, Human Rights Watch, 28 July 2023, 20230803133856.
117.Radio Free Asia has reported on the arrest of a blogger who was arrested on charges of resisting police officers and leaving his home province whilst on probation for having ties to Viet Tan.[64] He was released in January 2022.[65]
[64]See ‘Vietnam to Try Prominent Blogger For ‘Resisting Persons on Duty’’, Radio Free Asia, 11 August 2017, CXC90406612460.
[65] Free Asia has also reported on a Facebook user who was arrested for ‘sharing state secrets’ following posts criticising the government on Facebook.[66] That same report observed that:[67]

Vietnam, with a population of 92 million people, of which 55 million are estimated to be users of Facebook, has been consistently rated “not free” in the areas of internet and press freedom by Freedom House, a U.S.-based watchdog group.
Vietnam’s already low tolerance of dissent has deteriorated sharply this year with a spate of arrests of independent journalists and publishers, as well as Facebook personalities, in the run-up to the rulling Communist Party conference in January.
Estimates of the number of prisoners of conscience held in Vietnam’s jails vary widely. Human Rights Watch says that authorities held 138 political prisoners as of October 2019, while rights group Defend the Defenders says that at least 240 are in detention, with 36 convicted last year alone.

Social media-based activism

[66]‘Vietnam Facebook User Arrested For ‘Sharing State Secrets’ in Posts Criticizing Government’, Radio Free Asia (RFA), 23 October 2020, 20201026154619.

[67]‘Vietnam Facebook User Arrested For ‘Sharing State Secrets’ in Posts Criticizing Government’, Radio Free Asia (RFA), 23 October 2020, 20201026154619.

119.The 2022 DFAT Report indicates that:

3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.
3.62 Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
3.63 Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.
3.64 It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.
120.Country information supports the establishment of the government run taskforce, Force 47,[68] which has been used to monitor online activism. The UK Home Office reports that:[69]
[68]UK Home Office, ‘Country Policy and Information Note, Vietnam: Opposition to the State’, Version 4.0, August 2023, [3.3.8]; see also Freedom on the Net 2019 – Vietnam’, Freedom House, 05 November 2019, p.12, 20191106101136.
[69]UK Home Office, ‘Country Policy and Information Note, Vietnam: Opposition to the State’, Version 4.0, August 2023, [3.3.10].

The 88 Project noted that in 2021 there had been an increase in arrests of online commentators from 2020, with 12 arrested in 2020 and 15 in 2021. They note however, that many of the arrests were due to comments on the government’s handling of the pandemic. Vietnam Human Rights Network noted that in the period of 2021 - May 31 2022 at least 36 people were detained and prosecuted for expressing their political opinions online although no details on the content or topic of their posts was given…
Low-level social media users, who engage in discussions with friends and family may be tolerated but it can depend on local authorities and the subject of the discussions. It can be difficult for users to know which topics are sensitive as these can be subject to change. Frequent posting about issues deemed sensitive is likely to come to the attention of authorities. This can result in harassment, fines, house arrest and detention. Bloggers and online activists can be subject to, intimidation, job loss, travel restrictions and monitoring…
121.I further observe that the UK Home Office reports that:

Arrests of online activists do occur but given the 84 million internet users in the country the reported number of arrests/prosecutions is very low.
122.Based on my overall review of the country information, I am satisfied that not all online activity is the same. That is, a person who ‘shares’ or ‘reposts’ content from another source is not to be equated with a person who publishes their own views, own comments or own observations for others to consume, consider and converse with. The persons who have been subject to arrest, such as the bloggers referred to by the applicant, fall into the latter category.[70] They are persons who, themselves, are expressing views or opinions which are adverse to the CPV.

Consequences of activism

[70]See also, for example, the case of Nguyen Quang Khai: ‘Vietnam Facebook User Arrested For ‘Sharing State Secrets’ in Posts Criticizing Government’, Radio Free Asia, 23 October 2020, 20201026154619. Another example included is that of Duong Van Thai, who published many posts and videos critical of the Vietnamese authorities and Truong Duy Nhat and Nguyen Lan Thang who both contributed articles to Radio Free Asia: see ‘Vietnamese police confirm missing blogger is in their custody’, Radio Free Asia, 18 April 2023: [ reports that activists may be prevented from leaving their homes.[71] Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused. DFAT assesses that:[72]

[71]DFAT Report, [3.56].

[72]DFAT Report, [3.57].

It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
124.Legal representation for activists is challenging, with lawyers facing restrictions and bureaucratic hurdles.[73] Activists often experience movement restrictions and surveillance, with reports of polite but restrictive interactions with authorities.[74] The likelihood of arrest or discrimination varies, with those openly criticising the government or organising protests facing moderate risks. The risk assessment for activists is complex and unpredictable.[75]
[73]DFAT Report, [3.55].
[74]DFAT Report, [3.56].
[75]DFAT Report, [3.57].
125.DFAT also assesses that:

activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation, and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.

Political opinion and profile

126.Determining whether the applicant faces a real chance of persecution on return to Vietnam whether now, or in the reasonably foreseeable future, it is necessary to consider, among other things, his overall profile. A person’s political profile involves a number of constituent parts that inter-relate. I undertake this consideration both individually and cumulatively.

Political involvement and profile from time in Vietnam

127.I am prepared to accept that the applicant talked about politics with friends at university. I am prepared to accept that he engaged in some political discourse or “fighting” to use the applicant’s words, on [social media] during his time in Vietnam, even though no documentary evidence of this was provided.
128.I accept that the applicant had some involvement with a group of persons at university who were interested in politics. The applicant simply described it as the ‘uni opposition group’ or in terms similar to that.
129.I am also prepared to accept that he attended a protest in 2012 in respect of the Hoang Sa (the Paracel Islands) and Truong Sa (the Spratly Islands).
130.The Spratly Islands are more than 100 small islands or reefs of which about 45 are claimed and occupied by China, Malaysia, the Philippines, Taiwan and Vietnam.[76] The Paracel Islands are a group of small islands and reefs, largely occupied by China, which maintains a military presence on many of the islands.[77]
[76]CIA World Factbook, ‘Spratly Islands’, [ World Factbook, ‘Paracel Islands’, [ information supports the existence of significant protests in relation to those islands around that time.[78] Country information also indicates that people who have been critical of the Chinese government were targeted by Vietnamese authorities. In that regard, I note that country information reports:
[78]See VOV, ‘China has serious violated Vietnam’s sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos’, 4 November 2012, [ has previously cracked down on activists publicly critical of the Chinese government. In 2008, nine days before the Beijing Olympic torch traveled to Ho Chi Minh City, authorities arrested the activist Nguyen Van Hai (pen name Dieu Cay), who has blogged critically about China's claims over the Spratly and Paracel Islands as well as other issues. He was later sentenced to 30 months in prison on a trumped-up tax evasion charge and has been held incommunicado since October 20, 2010, the day of his scheduled release.
Prior to her most recent arrest, Bui Thi Minh Hang had been detained at least four times in five months for participating in protests. She was arrested on October 16 while walking with friends around the Hoan Kiem lake in Hanoi and wearing a conical hat with the letters HS-TS-VN, which are Vietnamese acronyms for "Spratly - Paracel - Vietnam." Several people in civilian clothes seized her hat and destroyed it. When she called for help from the police, they arrested her.
…
The Spratly and Paracel islands are claimed by China, Vietnam, and other countries. The Vietnamese government has a long history of arbitrarily arresting and detaining people who speak out on what are deemed sensitive foreign policy issues.
132.I am not, however, satisfied that the applicant acquired or maintains any particular profile on account of his activities in Vietnam. I am not satisfied that the applicant was ‘banned’ from studying because of his activities in Vietnam. That claim in his protection visa application was not consistent with his evidence to the Tribunal that he wanted to leave Vietnam because he felt oppressed by the government and wanted to become an overseas student.
133.The applicant claimed in his protection visa application that his family had been fined and were subject to demands for money following his participation in protests. At the hearing, the applicant did not give any evidence about his parents being fined or extorted by the local authorities. Rather, at the hearing the applicant’s evidence was that other than being spoken to by police and being told not to attend further protests or he would be jailed, the applicant clearly stated that nothing further happened because of his involvement in the islands protest.
134.I am prepared to accept that it is plausible that the applicant was briefly spoken to by police after the Islands protest. I am prepared to accept that he was advised against further protest participation by the police.
135.However, I am not prepared to accept, and reject, the applicant’s account of what was said by police. I do not accept that the applicant essentially has a ‘strike’ against his name for protesting and that another protest would result in him being jailed.
136.I reject that evidence for two primary reasons.
137.First, if the applicant was on his ‘last strike’, as his evidence would suggest, I do not consider it is at all plausible that he was able to subsequently obtain a passport in [2013] and leave Vietnam unhindered.
138.Country information suggests that persons who are of an adverse profile with the Vietnamese authorities are often prevented from travelling abroad, including by being denied a passport.[79] Had the applicant been of sufficient interest and held a profile to be on his ‘last strike’, I consider it is implausible that he would have both been granted a passport and have been allowed to leave Vietnam unhindered. Rather, if the applicant was of such a profile, the country information indicates that if he held an adverse profile as a political activist his movement would have been restricted, his passport would have been refused and/or he would have been refused departure from Vietnam. The applicant does not claim and I do not accept that any of those things occurred.
[79]2022 DFAT Report, [3.54], [5.25].
139.Second, because of the applicant’s evidence about the ABF, I consider that the applicant has a tendency, whether consciously or subconsciously, to either misunderstand, misreport, misconstrue, exaggerate or embellish his interactions with authorities. In Watson v Foxman,[80] McLelland CJ in Eq said at 319:
[80]Watson v Foxman (1995) 49 NSWLR 315 at 319 (McLelland CJ in Eq).
Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

221.As is clear, the applicant did not, however, commit his offences in Vietnam. However, it is submitted that as a citizen of Vietnam he is subjected to the criminal law of that country. It is submitted that he “may be examined for criminal liability”.[126] The applicant refers to the 2022 DFAT Report commentary on Article 6 as having broad extra-territorial effect.
[126]See applicant’s written submissions dated 9 February 2024, [4].
222.Appropriately, the submissions also note, by reference to an earlier DFAT Report in respect of Vietnam that:[127]
[127]See applicant’s written submissions dated 9 February 2024, [9].

The principle of double jeopardy applies in Vietnam; DFAT has previously reported advice that persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subjected to further trial in Vietnam for the same crimes. (emphasis added)
223.However, it is submitted that he has not yet ‘completed’ his sentence because he remains on parole and will be on parole for a further period. It is submitted then that he faces the possibility of being re-tried by the Vietnamese government as a result.
224.The applicant claimed that he was aware of another person who was convicted of the same offence again in Vietnam once they were returned. He could not provide any details during the hearing when asked. As noted above, the applicant was permitted 14 days to provide any further information, comments or responses to the Tribunal. No further information about another person who was re-sentenced in similar circumstances to the applicant was provided.
225.Instead, the submissions of the applicant filed after the hearing submit that the 2022 DFAT Report “accepted”, at paragraph 5.11, that double jeopardy “would” occur.[128] The submissions also refer to DFAT previously reporting in 2017[129] that persons who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crime.
[128]See applicant’s written submissions dated 27 February 2024, [18].
[129]‘DFAT Country Information Report – Vietnam – 21 June 2017’, Department of Foreign Affairs and Trade, 21 June 2017, CISEDB50AD4597 (2017 DFAT Report), [4.7].
226.Paragraph 5.11 of the 2022 DFAT Report, in full, provides:

Double jeopardy would occur when a Vietnamese citizen is charged and convicted with a crime in another country, and then returns (or is returned) to Vietnam and is prosecuted for the same crime. Article 6 of the Penal Code gives broad extra-territorial jurisdiction for crimes, meaning that a crime under Vietnamese law that is committed outside of Vietnam may be punishable under Vietnamese law. In country sources have told DFAT that the provisions may only apply theoretically. DFAT is not aware of cases of double jeopardy in practice. (emphasis added)
227.The applicant’s submissions do not address the last two sentences of paragraph 5.11. Rather, the submissions ignore them entirely.
228.It is not necessary to resolve whether the applicant being ‘on parole’ means that he has not completed his sentence. However, without deciding the issue, I am prepared to proceed on the basis that having not completed his parole, the applicant has not completed his ‘sentence’ as the applicant contends.
229.However, based on the 2022 DFAT Report which is more recent, and I prefer in this regard, I am satisfied that even if the Vietnamese authorities became aware of the applicant’s convictions in Australia, there would not be a real chance that he would be re-sentenced in relation to them and in those circumstances he would not face a real chance of serious harm.
230.I am also not satisfied that the fact that the applicant might be on parole when returned to Vietnam would lead to a conclusion that double jeopardy applies or that it would increase the prospect of him being re-sentenced. Rather, I am not satisfied that the prospect of re-prosecution for offences committed overseas is more than ‘theoretical’ and attach significant weight to DFAT not being aware of any instances of it occurring in practice and the inability of the applicant to adduce any specific evidence or country information supporting a practice of re-prosecution for overseas offences.

Is there a real chance of serious harm on account of his criminal convictions?

231.I have given careful consideration to whether, in all the circumstances, I am satisfied that the applicant faces a real chance of being prosecuted again in Vietnam for the offences he committed here in Australia. I am not satisfied that there is a real chance of that occurring. Even if the Vietnamese authorities were to be provided with, or obtain, information about the applicant’s offences I am not satisfied that there is a real chance that he would be prosecuted again for the same offences.

Failed asylum seeker, returnee and person who is returning as an unlawful non-citizen

232.I have considered whether the applicant would face a real chance of serious harm on account of being a failed asylum seeker, a returnee to Vietnam or being returned to Vietnam as an unlawful non-citizen.
233.The applicant has not been involved in people smuggling.[130]
[130]cf 2022 DFAT Report, [5.30].
234.Country information indicates that being a failed asylum seeker is not generally stigmatised.[131] It also indicates that returnees, including failed asylum seekers, typically face a range of difficulties upon return, including unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased.[132]
[131]2022 DFAT Report, [5.34].
[132]2022 DFAT Report, [5.32].
235.The applicant did not give any evidence that his household registration has ceased, that he feared not being able to access social services on return or that he feared that he would face unemployment or be unable to support himself. The applicant has managed to integrate into Australia on his own and I am not satisfied that he would be unable to overcome any difficulties which he might face if he returns to Vietnam.
236.Country information indicates that migration has been a feature of Vietnamese life for decades, is common and encouraged by the government.[133] My overall assessment of the country information, having regard to the particular circumstances of the applicant as set out in these reasons, is such that the applicant would not face serious harm as a result of being a failed asylum seeker, returnee to Vietnam and/or a person being returned to Vietnam as an unlawful non-citizen.
[133]2022 DFAT Report, [5.32].
237.I am not satisfied and do not accept that the conditions that the applicant would experience on return would involve serious harm, having regard to the non-exhaustive definition contained in s 5J(5). Specifically, I am not satisfied that the conditions would involve a threat to his life or would threaten his capacity to subsist in any way.

Cumulative consideration

238.I have also considered whether the applicant’s various claims when aggregated or considered cumulatively would result in my being satisfied that he faces a real chance of serious harm in Vietnam.
239.Perhaps the most likely claims to accumulate to potentially increase the risk to the applicant are his political opinion claims and his convictions. That is, the prospect of re-prosecution might be increased because of his political opinion. However, having regard to all of my findings and in particular my findings about his very low-profile and the objective chance of disclosure of the applicant’s convictions, I am not satisfied that they would combine to result in an overall real chance of serious harm to the applicant. Even when I factor in the other claims, I do not consider that the chance of serious harm to the applicant is real, rather I find that the chance of serious harm is, would be and would remain remote.

Does the applicant have a well-founded fear of persecution?

240.The primary issue in this review application is whether the applicant faces a real chance of serious harm in Vietnam now, or in the reasonably foreseeable future, for any of the reasons claimed by him.
241.I am not satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, if he was to be returned to Vietnam on account of, or in connection with:
(a)his opposition to the Vietnamese government, whether in Vietnam or in Australia;
(b)his interaction with the [social media] page of the Viet Tan;
(c)his criminal convictions; or
(d)any one of those matters in combination with one or more of the others.
242.In those circumstances, his fear of persecution for reason of his activities in Australia is therefore not well-founded.
243.For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if he returns to Vietnam related to his religion or past political protest in Vietnam or for the reason of him returning to Vietnam as a failed asylum seeker or for reason of his political opinion and activities in Australia.

DOES THE APPLICANT MEET THE REFUGEE CRITERION?

244.I have also considered the applicant’s claims cumulatively. There is no feature of any of the above claims that when considered cumulatively with one or more or all the other claims would lead me to conclude that the applicant has a well-founded fear of persecution within the meaning of s 5J.
245.For the above reasons I am not satisfied that if the applicant were returned to Vietnam now, or in the reasonably foreseeable future, that there is a real chance that he would be exposed to serious harm for any of the reasons claimed by him, or for any other reason.
246.I am therefore not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act.
247.I have also considered the applicant’s claims cumulatively. There is no feature of any of the above claims that when considered cumulatively with one or more or all the other claims would lead me to conclude that the applicant has a well-founded fear of persecution within the meaning of s 5J.

The applicant does not meet the refugee criterion for protection

248.For the reasons set out above, I am not satisfied that the applicant is a refugee within the meaning of s 5H(1) the Act. It follows that the applicant does not meet the criterion in
s 36(2)(a) of the Act.

DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

249.Having determined that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 36(2)(aa).
250.To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.[134]

[134]Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

The applicant does not meet the complementary protection criterion

251.I have already found that the applicant does not face a real chance of being exposed to serious harm if he were to be returned to Vietnam now, or in the reasonably foreseeable future. The ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.
252.In those circumstances, I refer to and adopt my above findings in respect of ‘real risk’ and find that I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
253.To avoid doubt, when adopting those findings, I am conscious that I have found that three of the applicant’s [social media] posts were made for the purposes of bolstering his claims. I took the fact of those posts into account in assessing whether there is a real chance of serious harm. I have also taken the fact of those posts, and indeed the fact of all posts in evidence before me, into account when adopting and assessing whether there is a real risk that the applicant will suffer significant harm if returned to Vietnam.
254.I am satisfied that even if following his return to Vietnam, the applicant was to continue his sharing and reposting of content from the Viet Tan organisation, the prospect of his coming to the attention of authorities in a country of millions of Facebook users is very remote.
255.I do not accept that the applicant is owed complementary protection or otherwise meets the complementary protection criterion in s 36(2)(aa) of the Act.

CONCLUSION

256.The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).
257.I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
258.There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

259.The Tribunal affirms the decision not to grant the applicant a protection visa.

Fraser Robertson
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

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

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.
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.
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.
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.
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.

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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Jurisdiction
Statutory Construction
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Citations

2011557 (Refugee) [2024] AATA 1235

Cases Citing This Decision

Cases Cited

Statutory Material Cited

ASB17 v Minister for Home Affairs [2019] FCAFC 38

DQU16 v Minister for Home Affairs [2021] HCA 10

EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804

[2024] AATA 1235

1 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal