2014524 (Refugee)

2014524 (Refugee) [2022] AATA 5095 (21 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingham Sutharshan (MARN: 0961664)
CASE NUMBER:  2014524
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Katsambanis
DATE:21 November 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 21 November 2022 at 3:29pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – anti Communist – anti-Vietnamese government – online activism – attendance at anti-government protests – pressured to pay small bribes – conduct engaged in for the purposes of strengthening refugee claims – Vietnam Reform Revolutionary Party (Viet Tan) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 19 November 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The first named applicant appeared before the Tribunal on 2 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Dr A] on behalf of the review applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this case are whether there is a real chance that if the applicants return to Vietnam they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
First Application for Protection
There are two separate applications for protection on the Department file.
The first application is an electronically completed form that was completed and lodged on 9 November 2017 from the email address [deleted].
In this application form the first named applicant stated that he was born on [date] in Ho Chi Minh City, Vietnam and that he had been married to the second named applicant, his wife, since [2011]. The second named applicant stated that she had been born on [date] in Kien Giang, Vietnam. The third named applicant was their minor son who was born on [date] in Kien Giang, Vietnam. The fourth named applicant had not been born when this application was lodged.
In this application form, the first named applicant stated that he had lived at the same address in Go Vap, Ho Chi Minh City from birth until 12 April 2007 and that from that date until [August] 2012 he had lived at an address in [Kien Giang]. Since August 2012 he had been living in Australia.
The first named, second named and third named applicants all were listed as being of Vietnamese ethnicity and Buddhist religion. It was stated that the first named applicant had arrived in Australia [in] August 2012 and that the second and third named applicants had arrived in Australia [in] February 2015.
The first named and second named applicants stated that they had never been employed in the past and were not currently employed. They each stated that they had supported themselves financially through overseas investment in foreign exchange.
The first named applicant claimed that he was seeking protection because he could not return to Vietnam. He stated that he could not go back because he had some issues there that would cause him harm and injury, to both himself and his family. He stated that the reason they could not go back was because they owe a loan shark a lot of money and they cannot afford to pay it back. He stated that the loan shark charged a very high interest rate after he delayed repayment for two weeks, and that the loan shark charged him 50% on each day for the amount of US$10,000.00, so he could not afford to pay them back.
The first named applicant stated that he had experienced harm in Vietnam when the loan shark came to his house and threatened his kids and injured them and also injured him. He claimed that he was threatened by the loan shark, was beaten by them and was injured heavily. He further claimed that he tried to seek help from a police officer, but they refused to help and required him to settle the matter himself. The first named applicant stated that he did not try to move to another part of Vietnam because the loan shark has many connections throughout Vietnam. They were big and violent gangsters, and he did not know that they would charge him such high interest rates if he was delayed in making payment.
The first named applicant stated that he had been beaten by them many times for delaying payment and if he returned to Vietnam, they would harm him and his family. He stated that if he returned to Vietnam, not only would he be harmed but his whole family were at risk. He stated that the authorities refused to help him, and he could not relocate within Vietnam because if he was forced to relocate, he and his family would receive a serious illness from the loan shark.
No claims for protection were made on behalf of the second or third named applicants.
Together with this application the Department was provided with copies of the passport biodata pages for the first named, second named and third named applicants.
On 13 September 2018, the applicants’ current representative informed the Department by email that the fourth named applicant had been born in Australia on [date] and provided a copy of the fourth named applicant’s Vietnamese passport biodata page indicating that the passport had been issued by the Vietnamese Consulate in Perth on [date] 2018. This email indicated that the representative had previously forwarded the same details to the Department on 28 August 2018.
Second Application for Protection
On 19 November 2018, the applicants lodged a second application for protection on a paper form 866.
In this second application form the applicants provided the same birth date and marriage date details as had previously been provided, although the first named applicant also indicated that he had used a different birth date in the past, being [date].
In this application form the first named applicant stated that he had previously applied for a visa to enter [Country 1] but did not provide any other details about this application. He also indicated that he had never been refused a visa to any other country. The first named applicant stated that he had lived in the [named] Camp in Thailand from May 1990 to April 1994, and that he had visited [Country 1] from [September] 2018 to [October] 2018.
The first named applicant stated in this application form that he had lived in [Can Tho City], Vietnam from [year] to 1989 and had then lived in [Vinh Long Province], Vietnam from 1990 to 1994. He also stated that he had lived in refugee camps in Thailand from 1991 to 1994. He claimed that he had lived in [Longxuyen Angiang Province], Vietnam from 1994 to 2001, in Ho Chi Minh City from 2001 to April 2007 and in Go Vap, Vietnam from April 2007 to August 2012.
The first named applicant stated that he had been employed in Vietnam as a [Occupation 1] in Ca Mau City from October 2004 to January 2007 and at [Employer 1] in Chau Thanh, Kien Giang from April 2007 to July 2012. He stated that in Australia he had been employed as a sales and marketing manager from December 2012 to July 2016 and as a [Occupation 2] from April 2018 onwards. He claimed that he had completed high school in Vietnam in [year] and that he had also completed [Discipline 1 at] College from October 2001 to March 2003.
The first named applicant stated that he was seeking protection in Australia so that he did not have to return to Vietnam and referred to his attached statement for details.
In her application form, the second named applicant indicated that she had travelled to Indonesia [in] October 2018 for a holiday and that she had contacted the Vietnamese Embassy in Australia to apply for her passport. She stated that in Vietnam she had lived in her family home in Kien Giang from [year] to January 2011 and in Go Vap, Ho Chi Minh City from January 2011 to August 2012. The second named applicant stated that she had been employed in [Field 1] at [an employer] in Kien Giang from January 2007 to June 2012 and as a [occupation] in various [shops] since her arrival in Australia. She also stated that she had completed high school in Vietnam in [year] and had completed [a Field 1] course at [a] Campus in Kien Giang from October 2003 to March 2006. She did not indicate that she was making any claims of her own for protection, instead relying on her membership of her husband’s family unit.
No claims for protection were made on behalf of the third and fourth named applicants, instead relying on their membership of their father’s family unit.
In a statement dated 15 November 2018 and submitted with this second application for protection, the first named applicant stated that he had previously instructed an “agent” to lodge an application for protection on his behalf, but that agent had lodged the application without his instructions and had not provided his true claims. He stated that the claims that he faced harm from a loan shark were not correct and that he had told the agent that his claims were based on his political opinion against the Communist government in Vietnam. He stated that when he learned about it, he did not know what to do and did not know how to communicate or inform the Department, but he was now providing his true claim for seeking protection in Australia.
In this statement, the first named applicant stated that although his date of birth was [date], his actual birthdate was [three years earlier]. He stated that when he was 5 years old, in [year], his father had been arrested by the Vietnamese Communist police and many possessions of his family had been confiscated including their television set. He stated that his father had been arrested for one year, had been sentenced for 20 years on the grounds of being a member of the Chieu Hoi (Open Arms) program and reactionary campaign, and for falsifying documentation. He stated that when his father was serving his sentence, he and his siblings had to quit school and the Communists would always harass his mother and confiscate her goods as she tried to run a business to support the family. He stated that after a year behind bars, his father was forced to do labour work in a forest and was subject to degrading and cruel treatment when he needed to go to the toilet. He escaped this treatment and hid in a hole and eventually made it to safety after seeking help from local residents. His father then made his way to Ca Mau and hid inside the U Minh forest. He made contact with the first named applicant’s maternal grandparents by visiting their home in [Ca Mau] at night. His father tried to escape over the border many times but did not succeed.
The first named applicant claimed that during this period when his father had escaped from prison, the authorities kept summoning his mother to the police station to see if she was in contact with her husband and it was like a period of home detention for her. After a few years, when the authorities determined there was no contact between the couple, the mother got permission to relocate the family to the father’s hometown of Vinh Long but they did not have contact with the father’s family in case it caused trouble in their lives. The first named applicant claimed that his mother started selling duck eggs in a market to support her children’s education and used fake documentation to allow them to study without trouble. They kept asking for background checks to see if his parents were part of the puppet army and concluded they did not have a clear and clean background history, but his mother put up with it because she wanted her children to have some education.
The first named applicant stated that in 1990 his father got on a boat to escape the country and he told the first named applicant’s grandparents to let the family know to make their way to Ca Mau. The first named applicant was absent from school for a few days to return to his maternal hometown and a few days later they made their journey with 15 people, including a baby, on a boat. The boat was adrift on the sea for 7 days along Thailand’s shore and they stayed in a small camp in Thailand for 3 months before moving to a bigger camp in 1990. He stated that although they underwent great privation in the refugee camp, they were still happy times staying together with his parents, and they were no longer bullied and oppressed by the Communists.
The first named applicant stated that because they had arrived in Thailand after 14 March 1989, the family had to go through a screening process. He said it was very easy for his father as telling the truth would get them through because they had been bullied for real, and he had been imprisoned for reactionary activities and for being a Chieu Hoi member. However, he stated that the family eventually didn’t pass as others did not believe the integrity of their story and they also failed when they re-applied so they had to return to the Viet Cong, who they had run away from, since nobody believed their story.
The first named applicant claimed that after 2 years in Thailand, his sister married her husband and they had a son. In 1994, all of his family members again failed a screening assessment except his sister’s husband. The sister had to return to Vietnam so that she could later reunite with her husband in Australia, and the first named applicant’s mother also returned to care for the sister and her child. He stated that in the UNHCR camp the Communists would say that anyone who passed the screening program would have to return anyway and also said that the Vietnam government had opened the door, let go of resentment, forgiven all defectors against Communism and would help returnees to resettle. His mother and older brother decided to return to Vietnam. The first named applicant wanted to stay with his father, but his mother strongly refused and his older brother suggested that he change his birthdate to make him 3 years younger so that the Communists would not recognise the family and that his education would go smoothly. He claimed that he had no choice but to return with his mother, but his father could not return because he was a criminal.

It was stated by the first named applicant that during their time in Thailand, his father told him that he had defected from the Communists in 1970 -1971 and that the Republic of Vietnam government had sent him to college and made him a [Occupation 3]. The father worked in Can Tho City and as [senior Occupation 3] in [location] but after 1975 he was sent to re-education camp for a year by the Communists. Unexpectedly, in [year], a local Communist noticed that the family had some properties they had bought from their savings. This person reported the father accusing him of being an insurgent, being a Chieu Hoi member and for not providing truth while in re-education camp. His father was arrested, his properties were confiscated, and he was sentenced for 20 years. The first named applicant was left traumatised from his father’s arrest when he was barely 5 years old and every time he saw a policeman, he was frightened. Even now, he claimed he sometimes dreams of that scene and the aggressive policemen.
The first named applicant stated that when he returned to Vietnam he was shocked by the way the Communists treated him. The family chose to settle in Long Xu but it was that same everywhere and one day after their arrival they were forced to attend the Department of Home Affairs and then the An Giang Province police office (Long Xuyen). The family were summoned every day until the end of that year, and nobody could leave the province during that year. He was enrolled in 9^th grade at school and the police told the school he was a returning escapee who should be watched closely. He was traumatised but could not b[Ms C]e his mother as she was so regretful and because it was too late anyway. The family rented and ran a [Product 1] store and not even a week after opening, the police messed with the family accusing them of [stocking unregistered products]. They were eventually forced to pay regular money to the police to live in peace. In 1996 his sister and her child were allowed to go to Australia and the family closed the [store] in the same year.
The first named applicant stated that in [year] he completed high school and took the university entrance exam but could not choose the national universities due to his poor background. He lost his spirit and skipped for 2 years and then decide to take a [Discipline 1] course in Saigon. He stated that his exam result was excellent, but he could not get a scholarship due to his family background as it was not deemed as a tribute to the Revolution. He stated that he was not really a human in Vietnam where he had no human rights, no freedom and no privilege. He wished he could get rid of his country and the government who saw him as an outsider and only welcomed him back to receive international aid.
The first named applicant stated that after he graduated from the college in 2003, he applied for jobs, but employers looked at his resume dauntingly. His sister in Australia applied to sponsor him for a holiday in 2004 and he enjoyed his time in Australia. He wished he could stay but he had to return after 3 months. When he arrived at Tan Son Nhat Airport, a customs officer invited him into a room for an interview. The officer asked him if he had contacted the Vietnamese community whilst overseas, if he has joined any treason group and where he had gone to. He stated that he did not know Australia well and had only gone where his sister took him when she had some time off work. They asked him if he had brought back any Australian currency, they searched his wallet and found $500 which his sister had sent to his mother. They asked him for $50 and he had no option but to take $50 from this money to give to them so he could leave.
Back in Vietnam, a classmate referred him to a job at a company in Kien Giang which was a small company when he started there, but this company grew in the 5 years he worked there and eventually opened a new factory. During this period he met his wife, they married and had a son in [year]. He worked hard and was promoted to a sales executive position when the new business opened, but he did not expect that the new business would be subject to background and history checks for all employees from the government. He claimed that his sister’s [business] in Australia was in need of a salesperson, at a time when she had cancer. The company was in his brother-in-law’s name, and they arranged for him to be sponsored under a 457 visa. His boss in Vietnam agreed to sign all paperwork required for a 457 visa and within three weeks his visa had been granted.
The first named applicant stated that he arrived in Australia in 2012 and he studied hard to undertake IELTS but each time he tried he still scored 4.5. He wanted a better future for his son, but he failed to make it in IELTS. Four years passed and he returned to Vietnam to visit his mother. Two days after he returned, he was summoned to a police station where he was asked various questions, including any involvement in anti-communist activities and if he had brought back any money. They asked for $100 to release him and he offered $50 in return. They accepted this $50 and agreed to let him go.
The first named applicant stated that was the last time he went back to Vietnam to visit his mother, but he was scared, frightened, scared of being arrested, slandered and misrepresented. He claimed he had been traumatised both mentally and physically and it had been more than 40 years in search of freedom. After failing his IELTS test he tried to renew his visa, but it was refused as his company nomination had failed. He was worried that he would have to go back to Vietnam although his company had appealed his case to the AAT. In his heart he thought he would have to seek asylum here because he would be arrested if he returned to Vietnam. The questions in regard to his background would haunt him, making him pay money or he would be locked up until his family gave them money. He also stated that if he returned the police and the communists would again harass him and threaten him just like they had done to him previously.
The first named applicant stated that he wished the Australian government would save his family for humanitarian purposes. He claimed that communists are good at propaganda, distorting, making up films to trick the international community but they capture those who desire freedom and democracy. He claimed they arrest people like him and use him in exchange for trading. He claimed they take advantage of humanitarianism to do such things.
The first named applicant stated that in 1996 his father was forced to return to Vietnam. When they learnt the news, they went to Thu Duc to pick him up, but he did not go with them because he was scared that involving the family would worsen their condition. He stated that his father gave him a book of poems, with most of the content being anti-Communist. His father asked him to keep it as evidence of the wrongdoing of communists in relation to civilians. He claimed that he still had that booklet with his father’s handwriting.
The first named applicant claimed that he feared he and his family would be targeted and seriously harmed because:
·he held an active political opinion against the Communist Party and the Vietnamese government due to their undemocratic and inhuman activities
·he would be perceived as an anti-Communist and anti-Vietnamese government due to his family’s background and his activities
·he was engaged in online activism (Facebook) and expressed his political opinion against the Vietnamese government. He noted that for a considerable period of time he expressed his political opinion against the Vietnamese government on Viet Tan Facebook. He would be considered as an online activist against the Vietnamese government
·he would be considered a traitor and anti-Vietnamese government and would be charged under sedition law
·he would be considered a Vietnamese diaspora (overseas Vietnamese) engaged in anti-Communist activities. He stated that he listened to Tieng Nuoc Toi and Dap Loi Song Nui radio stations to develop and enlighten his political opinion and activities against the Vietnamese government. In addition, he actively participated in anti-Vietnamese government protests and activities in Australia with other Vietnamese activists who want to bring democracy back to the country. He claimed that he had attended and participated in the following programs or protests in Australia:
oa protest against the inaction of the Vietnamese government for allowing illegal dumping of Chinese chemicals into Vietnamese oceans. They protested at the Vietnamese consular office in Perth
oa protest held against the Vietnamese government at the Vietnamese consular office in Perth against the undemocratic action of the Vietnamese government for land grants for 99-year leases to the Chinese government
owhen a well-known Vietnamese singer who was affiliated with the Vietnamese government, Mr Dam Vinh Hung, came to Australia they protested against him in Perth
·he would be considered as a spy of Western government due to his active and imputed political opinion
The first named applicant stated that he feared he could not get effective protection from the Vietnamese authorities because his political opinion against the government in power and he would be considered as a traitor of the nation. Due to that, he would be targeted by the authorities and could not get effective protection in Vietnam. He feared even if he moved to other parts of the country, he would not be able to get protection and internal relocation is not a reasonable option in his case because he has a small family and the Vietnamese authorities and intelligence have presence in network in the country. Accordingly, he seeks protection in Australia.
On 28 May 2020, the Department wrote to the applicants setting out concerns it had in relation to their application for protection.
In response to this letter, by email dated 3 July 2020, the applicants’ representative provided the Department with an air ticket for the first named applicant indicating that he had travelled to [Country 1] in 2018 to meet with his mother and a photograph of the first named applicant with his mother [at a recognisable landmark in Country 1]. It was claimed in this response that the first named applicant did not travel to Vietnam from Australia in 2018.
In the same email, the representative provided the Department with a copy of a small booklet written in Vietnamese which was claimed to be a book of anti-Communist poems written by the first named applicant’s father. The accompanying translation states as follows:
‘The Sorrow of Losing My Motherland – Vietnam is a Prison’
A poetry collection written by [name]
This combines a series of poems aiming to criticise, condemn of the Vietnamese Communist Government by running the country with rudeness such as re-education policy, discrimination against Vietnamese people
Also included in the email was a voice recording, with an accompanying translation that reads as follows:
Male voice: I tell you that the reactionary organization in Australia are anti-communist fiercely. However, they can’t do anything at all. Over 40 years since the liberation of Saigon, they can’t do anything either. I tell you that the Vietnamese police are very good. No matter where you are, they can catch you.
Male voice: Tell them over there just mind to their work. Do not participate via online or Facebook, they would know all about that. Secondly, do not join in any organizations, it is big trouble. You cannot mislead Vietnamese police. The Vietnamese police will follow you up.
By separate email also on 3 July 2020, the applicants’ representative provided the Department with a further submission including a statutory declaration from the first named applicant and various other accompanying documents.
In his statutory declaration, which was declared on 30 June 2020, the first named applicant stated that his claims were that his father was defector from the Communist government in the 1970s, the first named applicant had regularly engaged in online activism expressing his political opposition to the Vietnamese government and he had attended protests in opposition to the Vietnamese government.
The first named applicant then discussed the circumstances surrounding the initial application for protection he had made in November 2017. He stated that a friend named [Mr B] had introduced him to a lady named [Ms C] who claim to be a migration agent. The first named applicant claimed that he told [Ms C] about his anti-Communist stance, his criticism of the Vietnamese government and the writings of his father. This lady asked for $5000 to be paid in advance and an additional $5000 after the grant of the Visa. In March 2018, [Ms C] provided the applicants with forms to update their details with the Department. Around April 2018, the first named applicant could no longer contact [Ms C] and this was when he first realised he had been cheated.
The first named applicant then appointed his current representative. When it was discovered that [Ms C] had provided false details about the applicants’ protection claims, the first named applicant was shocked and confused because it was never his intention to mislead the Department. He confirmed that the claims he had provided to the Department in November 2018 were his true claims for protection.
The first named applicant repeated his previous claim that when he visited Vietnam between February and March 2015 he had been questioned by local police, had been questioned about whether he had engaged in any anti-Communist activities in Australia and had been asked to pay them AU$100. In the end a compromise was reached, the first named applicant paid AU$50 and he was allowed to go. He claimed that this was the last time he had visited Vietnam as the encounter with the police officer had made him fear that he would be arrested for his anti-Communist activities.
The first named applicant claimed that in October 2018 he did not visit Vietnam but had only visited [Country 1] for a two-day trip, where he met with his mother.
The first named applicant also claimed that in recent years the Vietnamese Communist government had started targeting anti-Communist and anti-regime people. He also expressed fears that his wife and children would become targets of the authorities in Vietnam because they belong to a family that has a political profile that is adverse to the Communist government of Vietnam.
The first named applicant also provided the Department with the following documents that had not previously been provided:
·Screenshots of a number of Facebook posts, comments and messages, written in Vietnamese, together with English translations. The translations indicate that the first named applicant has engaged in some discussion with other people in these online screenshots which can be considered as being critical of, or opposed to, the current Vietnamese Communist government. The month and date of these posts appear to be recorded in Vietnamese in the screenshots, but no translation of the dates has been provided. No year is apparent in the screenshots, which would indicate that based on Facebook date conventions, the posts were made on the year they were accessed and screenshots of them were produced (being 2018).
·A letter of support for the first named applicant dated 16 June 2020 from [Dr A], President of [Vietnamese Community Organisation 1] in Australia. It is stated in this letter that the first named applicant has ‘interacted in many cultural, sport and political activities especially in many demonstrations against the Communist Vietnam government in Perth’.
·Photographs of the first named applicant as a young boy, which were claimed to be taken when he and his family were living in Thailand.
·A short and undated message exchange written in Vietnamese, together with an English translation. The translation indicates that the first named applicant is warned not to say things on the Internet in case he is arrested.
The delegate refused to grant protection visas to the applicants on 18 September 2020.
Application for Review
The applicants applied for a review of the delegate’s decision on 19 August 2019. The applicants also provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
In a submission dated 25 July 2022, the applicant’s representative restated the applicant’s claims and provided arguments in support of these claims.
In a statutory declaration made on 25 July 2022, the first named applicant restated his claims for protection and argued that a person of his political profile, with an active online presence on Facebook that was critical of the current government in Vietnam, would face serious harm in Vietnam based on available country information.
The Tribunal was also provided with a number of screenshots of Facebook articles where the first named applicant had made comments. English translations of the comments were provided in these translations indicated that in his comments the first named applicant was critical of the Communist Party and the Vietnamese government.
A further letter of support from [Dr A], dated 3 July 2022, was also provided.
Several photographs were provided to the Tribunal taken at an event where the Premier of Western Australia and other local political dignitaries were in attendance. Photographs were also provided of the first named applicant together with other members of what appears to be a football (soccer) club.
The applicant’s representative also provided the Tribunal with country information in support of the applicant’s claims including a document from the Vietnam Human Rights Network titled ‘Report on human rights in Vietnam 2020-2021’, the Human Rights Watch 2022 report for Vietnam, the Amnesty International 2021 report for Vietnam, the United States Department of State 2021 Country Report on Human Rights Practices: Vietnam and a number of news articles discussing the human rights situation and treatment of online activists in Vietnam. The Tribunal has read and considered this country information prior to making its decision in this matter.
Tribunal Hearing
Immediately prior to the commencement of the hearing on 2 August 2022, the first named applicant provided the Tribunal with a copy of his renewed Vietnamese passport issued in Perth, Australia [in] 2020 and expiring [in] 2030.
At the hearing the first named applicant confirmed that he would be the only applicant to provide evidence at the hearing. When asked his date of birth, he stated that his exact date of birth was [date] but that the date of [date] that appeared on his documents was a process that resulted from his family escaping to Thailand for four years.
The first named applicant stated that because his family had left Vietnam after 14 March 1989 they were not recognised as refugees, and they had to be classified as either political or economic refugees. He stated that they escaped from Vietnam when he was [age] years old and stayed in Thailand for four years from 1990 to 1994. He claimed that the Thai government forced them to return, and they had to declare their papers again when they returned to Vietnam. His older brother wanted the first named applicant to resume his studies and wanted to reduce his age by two years. The first named applicant claimed that he did not agree with this strategy, however as an adult his brother went ahead and did it anyway because he wanted good things for the first named applicant. He claimed that his birthdate had been changed from that time onwards.
When the Tribunal pointed out to the first named applicant that the claimed change was not two years but three years, he responded that he had missed four years of education and in Vietnam things are different in education so you simply cannot resume your studies at any age.

In response to a question about where he was born, the first named applicant stated that he was actually born in Can Tho which is a province in Vietnam around 200 km from Ho Chi Minh City. It was pointed out to the first named applicant that in the Form 866 that he lodged with the Department in November 2018 in support of his application for a protection visa his place of birth was stated as Ho Chi Minh City. He responded that his place of birth and his date of birth had both been changed in Thailand because his brother wanted to hide the truth about their father because he had been condemned to 20 years in jail. He added that the Communists punish families through several generations in Vietnam. The first named applicant became emotional and stated to the Tribunal that he wanted to tell the truth. He said that he lived in fear in Vietnam and always had to be dishonest. He was always worried, and he was scared when he saw the police. He claimed that from childhood to adulthood the only happy times he could recall were the four years in Thailand where all five members of his family were living together. He claimed that it was unbearable when he thought about those things.
The first named applicant stated that his father died in 2017. He claimed that he would communicate with his father on the phone after he came to Australia. He stated that his father was living on Phu Quoc Island in Vietnam. He added that this island had previously been a wild place, not a tourist spot like it is now. In response to the Tribunal’s query that Phu Quoc had been a tourist spot for a number of years prior to 2017, the first named applicant stated that not all parts are for tourists.
The first named applicant stated that his mother had passed away from Covid in 2021. He claimed that his mother had not been vaccinated but others who had been part of the revolution had received vaccinations. He claimed that there was a clear distinction in Vietnam and although the government claim internationally that they vaccinated everybody, in reality is the vaccinations are only for party cadres.
The first named applicant stated that he had one brother and one sister. His sister had been living in Australia, but she had died of cancer in 2013. His brother was living in Saigon.
The Tribunal asked the first named applicant what level of education he had attained in Vietnam. He responded that he had finished high school in [year]. The Tribunal sought clarification as to whether the first named applicant had undertaken any further studies after high school. He responded that he felt discouraged as he could not enter university due to his previous history of having escaped Vietnam. He stayed at [home] to assist his family with odd jobs but in 2000 his mother asked him to attend a small school so he could obtain some qualifications. He then sat for an exam to enter a school that dealt with [Discipline 1]. When asked to provide the name of the school, the first named applicant stated that it was [specified]. He claimed that he studied at the school for nearly 2 years and graduated in 2003.
The first named applicant stated that after graduation from this course he was looking for a job, but he could not find a place to employ him due to his family history. The Tribunal asked the first named applicant to clarify whether he had ever worked in Vietnam before he first came to Australia. He responded that his sister was living here in Australia and cared about him because he was the youngest member of the family, so she sponsored him to come to Australia as a tourist for three months in 2005 so he could relax his mind. When asked if he had held a job in Vietnam between finishing at the [School] in 2003 and his travel to Australia in 2005, the first named applicant responded “no” and added that he was just assisting his family at home. He stated that his mother bought and sold [Product 2], so he helped her to purchase it because she was getting old. He would help her look after the goods, but it was not a stable job.
When asked what work he did after he returned to Vietnam from his holiday in Australia in 2005, the first named applicant stated that he assisted his mother for a while until a classmate introduced him to a place that manufactured [Product 3] in Kien Giang. He stated that this introduction happened around 2006 and he commenced working there assisting the boss to buy and sell [Product 3]. He claimed that this business got better and started to expand so the boss established a company that he named [Employer 1]. he confirmed that he worked at this business until he came to Australia in 2012. The first named applicant stated that this business was located approximately 300 km from his family home in Saigon. When asked how he would get to work every day, the first named applicant responded that he rented a place near there but his registered address remained in Saigon. He then confirmed that he rented a room in a boarding house in Kien Giang and added that he had met his wife whilst in Kien Giang. He confirmed that they continued to live in a boarding house after their marriage.
The Tribunal asked the applicant if the only work he had ever undertaken in Vietnam was the work he had done with his mother buying and selling [Product 2] and the work in the business selling [Product 3]. He responded that in 1994 his aunt had a [Product 1] shop and he worked there for two years until 1996. He claimed that he assisted his aunt to get money for her studies. He said that he was good at the job, so his aunt leased the shop to his family. He claimed that when the [Product 1] shop was in his name, people made life difficult for him and he had to pay cultural inspectors a weekly fee in order for his shop to stay open.
The first named applicant confirmed that this [Product 1] shop was originally owned by his aunt and claimed that she had already established the shop before his family had returned from Thailand. He stated that he worked for her for around half a year and then the aunt transferred the shop to him. He then stated that it was actually transferred into his mother’s name and he worked there. When asked if his mother bought the shop or simply had it given to her, the first named applicant stated that they had US$100 when they returned which was money given to them by international aid agencies. His mother used that money to buy the shop. He added that the shop was located in rented premises and the family simply ran the business at those premises.
The Tribunal asked the applicant to list all of the jobs he had been employed in whilst living in Vietnam before he came to Australia in 2012. He confirmed that he had worked in the family [Product 1] shop, had helped his mother in her [Product 2] business and had worked for the [Product 3] company. When asked if there were any other jobs he had worked in prior to coming to Australia, the first named applicant stated that they were all the jobs he had been employed in.
The Tribunal pointed out to the applicant that in his Form 866 which he had provided to the Department in November 2018 in support of his application for a protection visa he had stated that he had worked as a [Occupation 1] in Vietnam. In response the first named applicant stated that he intended to do [Occupation 1] in Ca Mau for a year, but the shop did not work. The Tribunal expressed concern to the first named applicant that he had not mentioned any work as a [Occupation 1] when asked to outline all of the employment he had undertaken in Vietnam and stated to the applicant that this may indicate that he had provided misleading information in the form he had provided to the Department. In response the first named applicant stated that he went there to work for a while. When asked for how long he had worked there, he responded that it was only a few months. When asked in which year he had worked there the first named applicant stated that it was probably in 2005 or 2007 and then added that it could be in 2005. He then stated that after he came back to Vietnam from his trip to Australia he had done odd jobs.
It was pointed out to the applicant that in his form he had stated that he had worked as a [Occupation 1] in Ca Mau from October 2004 to January 2007. He responded that this was not correct and that when he had returned, he did odd jobs and assisted his mother. He stated that what he was saying today was the truth. It was pointed out to the applicant that if what he was saying today was the truth then he had not been truthful when completing the form that he submitted to the Department. He responded that he had told the Tribunal everything. In 2005 he assisted with sales and selling then he worked in the [Product 3] shop. He claimed he had only gone to Ca Mau to work for a short while, but the shop had closed. He added that when it reopened, he went there again which is why the timeframe is jumbled up.
The Tribunal pointed out to the first named applicant that in the form he had provided to the Department in 2018 he had listed all the places he had lived in Vietnam in the past 20 years but had made no mention of living in Kien Giang. The first named applicant responded that he had to live there because he worked there and it was 300 km from Saigon, so he had to live where he worked. When asked why he had not listed that he had lived in Kien Giang on the form if he had actually lived there, the first named applicant stated that in the time that he worked there he also lived there, and it was implicit because he could not commute over 300 km every day. It was pointed out to the first named applicant that in the form he had listed an address in Go Vap as his place of residence from April 2007 to August 2012. He responded that he had previously mentioned that his registered address had stayed the same and claimed that this was his registered address because things in Vietnam were not like they are here.
The Tribunal pointed out to the first named applicant that the question on the form about previous addresses was very clear and a read “Give details of all residential addresses where you have lived in the last 20 years”. In this wording it was clear that the information required was not a registered address but where the person had actually lived. The first named applicant responded that he just thought it meant it was a registered address.
The Tribunal pointed out to the applicant that he was represented by a registered migration agent when he completed the form and that at the time when the form was lodged the first named applicant had already withdrawn claims made in a previous application for protection so he would have been acutely aware of the need to provide accurate and responsive information. However, despite this, the information on the form and the information provided at the hearing was different. The first named applicant responded that he wrote things down in Vietnamese and sent them to his representative who had written a summary. He stated that in Vietnam they use a registered address and thought people would understand that he lived near his place of work. He added that to move temporarily in Vietnam you fill out a temporary absence form.
When asked if he had ever been in trouble with the police in Vietnam in the past, the first named applicant responded that he had been invited to attend the police station in 2015 when he returned to Vietnam to visit his mother. When asked if he had ever been arrested or detained by the police when he lived in Vietnam, he responded “no” but added that police and other authorities would come to ask questions and harass him for money. He stated that he usually mixed up the police and other authorities because they were the same mob.
The first named applicant stated that he came to Australia in 2012 because his sister was at the end stage of cancer and his brother-in-law needed assistance in his [business], so his sister sponsored him to come to Australia on a subclass 457 working visa. He claimed that this visa had to be renewed after five years but his brother-in-law’s application was rejected so it was not renewed. When asked why the application was rejected, he responded that the nomination was insufficient to sponsor for a subclass 457 visa.
When asked what he did when this application for a subclass 457 visa was rejected, the first named applicant stated that he applied for a refugee visa because he was a refugee from 1990 to 1994 and because in 2015 he was scared when he returned to Vietnam because the police had invited him to attend the police station.
The first named applicant was asked by the Tribunal when he had applied for this visa. He responded that it was at the end of 2017, but somebody cheated him. When asked who this person who had cheated him was, he responded that it was a person called [Ms C] and he had her phone number and address. When asked how this person had cheated him, the first named applicant stated that he wanted to be a refugee and he had a friend named [Mr B]. The first named applicant claimed that between 2015 and 2017 he had been looking for a lawyer to help him with a claim but couldn’t find one in Western Australia. When it was pointed out to him that during this period of time he had an agent who was assisting him with his application for a subclass 457 Visa, the first named applicant responded that refugee claims are different and many agents do not do them. When it was pointed out to him that the agent working on his other visa could refer him to someone who could look after a refugee claim, the first named applicant stated that he had met [Mr B] in 2017 when he was working in a [shop]. [Mr B] had introduced him to [Ms C] who was a lawyer who handled refugee claims. The first named applicant confirmed that when he met [Ms C], she told him that she was a lawyer. He claimed that he had met her at her house in the suburb of [Suburb 1].
The Tribunal pointed out to the first named applicant that the application that had been lodged on his behalf in late 2017 had been electronically lodged using an email address purporting to be that of the first named applicant and did not contain any details about [Ms C]. In response, the first named applicant disputed that this email address had ever been his own. It was pointed out to the first named applicant that this application contained all of the biographical details of the first named applicant and his family, including their passport details, which would tend to indicate that he had been involved in the production of this application. The first named applicant responded that these were the details he had provided to [Ms C] and then [Ms C] had made the application for him. When asked if he was present when the application had been completed, the first named applicant responded that he had given [Ms C] the bundle of documents from his dad hoping to be able to publish them. He told her his story, gave her $5000 and she said she would do it for him. He then added that he could not recall if this payment was for a refugee visa or for a bridging visa. When asked by the Tribunal to clarify whether he had paid [Ms C] to apply for a refugee visa or for a bridging visa on his behalf, the first named applicant stated that he only knew about a bridging visa later on and at the time he only knew about a refugee visa so when he got a bridging visa he thought it was the refugee visa so he gave [Ms C] $5000. He claimed that he was not with [Ms C] when she lodged the application because he trusted her.
The Tribunal stated to the first named applicant that the application that was lodged on his behalf in late 2017 claimed that he had problems with loan sharks in Vietnam. The first named applicant responded that this was not correct and that he had never owed money to loan sharks. The first named applicant was asked why a claim would be submitted to the Department on his behalf in support of his claims to be entitled to a protection visa on the basis that he owed money to loan sharks if this claim was not correct. He responded that he did not know and added that [Ms C] was good in English, so he signed for her to do these things on his behalf. When asked by the Tribunal if he had ever told [Ms C] that he had problems with loan sharks, the first named applicant stated that he had never done so and that he had never borrowed money from anyone in his life.
The Tribunal pointed out to the applicant that if a lawyer in Australia does anything against their client’s wishes it is treated very seriously and could lead to disciplinary action against the lawyer, criminal charges or both. The first named applicant agreed that this was the case. On this basis, the Tribunal asked if the first named applicant had ever reported what [Ms C] had done to him to the authorities. In response, he stated that he had told his current representative. At this point in the hearing the representative stated to the Tribunal that it was not possible to determine if this person was a lawyer or not. However, the representative confirmed to the Tribunal that he had not undertaken any enquiries whatsoever to determine who [Ms C] was or whether she was a lawyer, and added that he had not been instructed to do so.
The Tribunal stated to the first named applicant that it was concerned that this application that had been lodged on his behalf in late 2017 contained false claims that had been made up to assist him in obtaining a protection visa and added that it was also concerned that the first named applicant and [Ms C] had submitted this claim knowing that it was not true. The first named applicant responded that [Ms C] cheated him, and he did not know the content of the application. He added that he should have done the content in Vietnamese and claimed that he had his own file for being a refugee, but his English was not good. He stated that he was not sure where [Ms C] got the information from.
The Tribunal asked the first named applicant when was the first time he had found out that incorrect information had been provided to the Department. He responded that [Ms C] gave him a form which he and his wife signed. Two weeks later he called her, and she did not pick up the phone so he went to the house in [Suburb 1] where he had previously met her, but he was told that she was not there. He knew a lady called [Ms D] who worked for a legal firm in Sydney and had helped some of his wife’s co-workers to obtain Australian visas, so he asked [Ms D] about his problems and she suggested that he obtain his file number from the Department. When asked when this occurred, he stated that it was around May or June 2018. He added that he told [Ms D] that the email used in the application form was not his email address and he did not owe anyone any money.

100. The first named applicant was asked where he obtained his new Vietnamese passport. He stated that it was in Perth through the Vietnamese authorities based in that city. He claimed that he had no problems obtaining this passport from the Vietnamese authorities. The first named applicant also confirmed that since they had been in Australia, all of his family members have either obtained a passport or renewed their passports through the Vietnamese authorities in Australia. He claimed he had no problems obtaining these passports because Communist dare not do anything overseas and only persecute people in their own country. He claimed that in Vietnam he had to pay money to get a passport.
101. The Tribunal asked the first named applicant why he would contact the Vietnamese authorities in Perth and provide them with details of where he was and what he was up to in Australia if he feared harm from the Vietnamese government. He responded that he did not know much about the law but every time he applied for a refugee visa they asked him for his passport. He added that he was certain they won’t harm him in Australia.
102. The Tribunal pointed out to the first named applicant that since 2012 when he arrived in Australia on a subclass 457 visa he had returned to Vietnam in 2015 and he had renewed all of his family passports with the Vietnamese authorities without any apparent problems. He stated this was in Perth. It was pointed out to the first named applicant that these actions would indicate that he had no fear of the Vietnamese authorities. He responded that in Australia they won’t do anything but in Vietnam he would be like a piece of meat in the lion’s den.

103. The Tribunal asked the first named applicant when he first obtained a copy of the book containing his father’s poems. He responded that his father wrote it in the refugee camp and gave it to the first named applicant to keep when they met in 1996. The first named applicant confirmed that he had kept this book in his possession since 1996 and claimed that the book was very dangerous. He added that if the authorities inspected his house and found the book he would be in serious trouble. The Tribunal asked the first named applicant why he had not provided a full translation of the short book given that he was using the existence of this book as part of his claims to be a person deserving of protection. At this point in the hearing the representative indicated that for cost reasons only a summary translation had been provided. The Tribunal stated that on the basis of the summary translation provided it was prepared to accept that the book contains some criticism of the Vietnamese government however sought any confirmation that the book had been written by the first named applicant’s father. In response the first named applicant stated that his father had signed it and that his name was on the title of the book.
104. The Tribunal asked the first named applicant what he had done with the book in the many years since it came into his possession. He responded that he had just kept it but his father’s dream was to publish the book. When asked why he had not published it in all the years since 1996, the first named applicant responded that he could not do so in Vietnam. When it was pointed out to the first named applicant that he had been living in Australia for the past 10 years, he responded that he was afraid of Vietnam. He claimed that he sent the book to the local Vietnamese community who had looked at it but told him that he must publish it himself.
105. The Tribunal pointed out to the applicant that it was possible to publish books in many ways today including simply taking photos or scanning the pages and uploading them onto the Internet. In response the first named applicant stated that he wanted it as a book for his dad because it was a history for people to know what communism was like. He added that he did not want to consume a lot of time which is why he was not mentioning it now.
106. The Tribunal asked the first named applicant if it was possible that he had created the book himself to assist in his claims to be a refugee. In response the first named applicant stated that he did not understand the application for a visa and if he could use this book to help him establish refugee status, he would have done it. He added that it was why he gets frightened when he sees police. When it was pointed out to the first named applicant that the Australian police would have no issue with the book, the first named applicant stated that he feared the police in Vietnam. When again asked why he had not published the book in the 10 years since he had been in Australia, the first named applicant stated that he was not a permanent resident and feared he would be chased away. He added that when he had shelter, he would do this and claimed he wanted a relaxed mind so he could work and earn money. He confirmed that he had been working in Australia since 2018 as a [Occupation 2] and added that his life had improved a lot in the last 10 years.
107. The Tribunal pointed out to the first named applicant that although he had submitted a number of Facebook posts in support of his application it was difficult to determine which posts were actually his. In response the first named applicant confirmed that the only posts that were his with those in the name of [applicant name]. When it was pointed out that these posts contained some date information, but it was impossible to determine in which year they had been posted, the first named applicant stated that he had just printed them from Facebook. When asked when the posts had actually been made, the first named applicant responded that they had been made since he had come to Australia.
108. The Tribunal asked the first named applicant if he had made these Facebook posts relatively recently for the purposes of enhancing his claims for protection. He responded that it was because of Facebook that when his mum was sick people would come to her house and threatened her. The Tribunal again asked the first named applicant if he had made these posts in an attempt to assist with his claims for protection, and he responded that he wrote on Facebook, so people came and threatened his family.
109. The Tribunal asked the applicant to clarify when the threatening messages that he had submitted to the Department in support of his application had been made. He responded it was around 2018 or 2019. He stated that the recordings had been made by his older brother on his mobile telephone because his brother wanted the first named applicant to hear what the man had said. When it was pointed out to the first named applicant that it would seem unusual for someone to simply record a random telephone conversation, the first named applicant stated that the recording was not of a telephone conversation but a recording made by his brother on his phone when people had come to the house to make threatening statements and warn the first named applicant to be careful about the safety of his children. When asked if he knew the person that was making the threats, the first named applicant stated that they came to the house to talk to his mother and addressed her as “mum” which was the way that Communists addressed older people. He claimed that if you listen to Communists, you will understand it was some sort of warning to the first named applicant. When asked if it was possible that these recordings had been created simply to assist the first named applicant with his claims to be a refugee, he stated that this was not the case, but it was additional evidence to show that if he returned to Vietnam they would carry out bad things to him. He added that if he wanted to assist his case, he would print the book and create many other things as well.
110. The Tribunal pointed out to the applicant that based on his evidence to the Tribunal there appeared to be significant credibility concerns about basic details of his life in Vietnam especially regarding the work he did in Vietnam before he came to Australia and where he lived in Vietnam before he came to Australia. The first named applicant responded that before he came to Australia, he lived in Kien Giang because he had to work there but his registered address remained the same. When it was pointed out to the first named applicant that the question on the form he had submitted to the Department was not a question about a registered address but about where he had actually lived, he responded that this was because people in Australia did not understand registered addresses. When asked by the Tribunal if the first named applicant had to obtain a temporary registration to live in Kien Giang, he responded that it was still the case that his registered address remained the same.
111. The Tribunal pointed out to the first named applicant that given his claim that his initial claims for protection had been misleadingly provided by [Ms C], there would be even more incentive for him to ensure that any claims made on his subsequent Form 866 were accurate and correct. At this point in the hearing the applicant’s representative stated that the core claims of the first named applicant were actual or perceived political opinion and pointed out that Prof Hathaway had indicated that applicant’s credibility should not be held against them due to minor inconsistencies in their evidence. The representative stated that if you applied the “what if I am wrong” test on his actual and imputed opinion, the applicant would meet the test.
112. At this point in the hearing the Tribunal attempted to contact the witness, [Dr A], to obtain witness evidence however his telephone was not answered.
113. The Tribunal asked the first named applicant if there was anything else he wanted to tell the Tribunal. The first named applicant responded that he had some documents from the refugee camp that he would like to provide to the Tribunal and proceeded to show these documents to both the Tribunal and his representative. It was agreed that the representative would assess these documents and provide them with a further submission after the hearing. The applicant continued by stating that the Australian government listened and trusted the communists, but later people get arrested and go to jail. He stated that he was a normal citizen, and nothing happened to him, but his father was a reactionary prisoner sentenced first 20 years. He claimed that in Vietnam future generations are punished for the deeds of their families and he was afraid that if he returned to Vietnam he would go to jail, and his children would not have parents. He claimed that he was not young any longer but his two children were so he hoped they could stay in a humanitarian country to enjoy freedom. He did not want them to suffer like he had suffered, and he needed to be allowed to stay here.
114. The Tribunal pointed out to the first named applicant that he had lived in Vietnam from 1994 to 2012, he had gone to high school, had undertaken further studies after high school and had been employed in Vietnam for some considerable period of time before he came to Australia in 2012. He had also never been arrested or detained by the police in Vietnam. On this basis, the first named applicant was asked why things would be different if he returned to Vietnam now. He stated that it was because he went on the Internet, and they have followed him since. He claimed that when he went to visit his mother he was invited after two days to visit the police station and his mother became worried. When it was pointed out to him that even though he was asked to visit the police station it did not appear that the police or other authorities did anything to the first named applicant, he responded that they didn’t, but it was a trap. When asked how this was a trap, the first named applicant responded that you do not live in Vietnam so you cannot know. He claimed that things like that make your spirit go down and it is like terrorism. He added that they create false documents. When pointed out that he had made no claim that any false documents had been created against him, the first named applicant stated that if he didn’t do as they say they would do so just like they had done with his father.
115. At this point in the hearing the Tribunal managed to make contact with the witness [Dr A] who confirmed that he was the president of [Vietnamese Community Organisation 1] in [Australia]. [Dr A] stated that he had known the first named applicant since around 2013 because he would see him at many functions that had been held by his organisation. [Dr A] confirmed that he had come to Australia in 1991 and claimed that he had only returned to Vietnam once for a funeral sometime in the 1990s, but he never wanted to go back to Vietnam again. He claimed that he was an anti-Communist so the Communists would not let him back into Vietnam, but he did not want to go back anyway. He stated that the first named applicant was a young man who had been very helpful at the many events held by the organisation. He claimed that the first named applicant had a good background as an anti-Communist and added that the first named applicant’s family had been treated badly and had even been persecuted in Vietnam. When asked how he knew this to be the case, [Dr A] stated that he knew this from talking to the first named applicant and added that his story appeared to be genuine, and he had no reason to doubt him. The Tribunal asked [Dr A] whether being a member of his organisation would cause people problems if they return to Vietnam. He responded that it would do so because they used the yellow flag at their functions and published their events on social media so the Vietnamese government could use facial recognition software to recognise people on Facebook who had attended their events. He added that some members of his organisation had been detained at the airport in Vietnam and had then returned to Australia without being permitted entry into Vietnam. The Tribunal pointed out to [Dr A] that these claims about detention and return at the airport did not appear to correlate with information provided by the Department of Foreign Affairs and Trade and asked him if he could provide any evidence in relation to these claims. He responded that he knew of many people but maybe they did not report it to the authorities. [Dr A] concluded his witness evidence at this point.
116. The Tribunal then stated to the applicant that it had some credibility concerns about the evidence he had provided over time in relation to the ownership of the [Product 1]store. It was pointed out that in the statement the first named applicant provided to the Department in 2018 he had stated that his family had set up the [Product 1] store when they returned to Vietnam from Thailand primarily to help his sister and her family before she managed to come to Australia and also to assist the rest of the family. However, in his evidence at the hearing the first named applicant had stated that this [Product 1]store was already in existence when the family returned to Thailand and was being operated by his aunt. The first named applicant was asked to clarify which of those two statements was correct. He responded that his family did not create the shop and the shop was already in existence, but he did not know how to put it in the statement. When it was pointed out to him that he simply could have stated that fact in his original statement, the first named applicant responded that what he had said at the hearing was true, the shop was already there, and he helped in the shop. Later on, the shop was changed into the name of his mother so when the family operated the shop the authorities would harass them for money. He added that he thought the Tribunal had the details. When it was pointed out that the details that he had originally provided to the Department with different to what he was saying at the hearing, the first named applicant stated that they were not much different and added that his mother and he would not know how to set up a shop, so they needed to get an existing shop, but it was the same meaning.
117. The Tribunal asked the first named applicant if there was anything else he wanted to add. He stated that he wanted to explain that he used his registered address in Saigon even though he had lived in Kien Giang. He claimed that he wrote the details in Vietnamese about the [Product 1] shop. He added that he had said the truth as he believed in God. He did not like false things because life in Vietnam was false. He stated the police here in Australia work properly but he was shaking in fear when they asked him to go to the police station in Vietnam in 2015. He was very happy that his wife and kids were in Australia.
118. The applicants’ representative requested a 10-day period to provide further submissions to the Tribunal and this was agreed to.
Post Hearing submissions
119. In a statement dated 19 August 2022, the first named applicant provided further arguments in support of his claims for protection. Relevantly, he claimed that he had been misled when lodging his first protection visa application and had come to the Australian authorities with clean hands to inform them that incorrect information had been lodged. In respect of the Vietnamese passport issued to the first named applicant in Australia in 2020, he argued that the Vietnamese authorities were clever and cunning. If they refuse to issue a passport to a person in Australia, they know it would create a possible reason to claim protection in Australia. Therefore, they do not cause any trouble in Australia but wait for people like the first named applicant to return to Vietnam where they would take steps to harm him. The first named applicant also stated that he had not translated his father’s poetry in full because the cost of approximately $3000 would be beyond his means.
120. The first named applicant provided a translated copy of two statements he had made on Facebook in March 2018, which he claimed was evidence that he had not posted on Facebook solely for the purposes of enhancing his claims for protection. Also provided to the Tribunal were translated copies of a number of other social media posts made by the first named applicant from November 2018 through to September 2021.
121. In a submission dated 19 August 2022, the applicants’ representative provided further arguments in support of the applicants’ claims for protection. Also provided to the Tribunal was a certificate evidencing that the first named applicant had completed a [Occupation 1] course from September 1993 to March 1994 that had been run by a Catholic relief agency operating in Thailand to support refugees from neighbouring countries.
122. In a further letter of support dated 10 August 2022, [Dr A] provided the name of the person residing in Western Australia that he mentioned at the hearing and stated in his letter that this person had been denied entry to Vietnam ‘a couple of years ago’.
FINDINDS AND REASONS
123. For the following reasons, the Tribunal has concluded that that the matter should be remitted for reconsideration.
124. There is no issue as to identity. The first named, second named and third named applicants all arrived in Australia on valid Vietnam passports bearing valid Australian visas. The fourth named applicant was born in Australia and is the child of the first named and second named applicants. The fourth named applicant is the holder of a valid Vietnam passport and there is no evidence before the Tribunal that he is entitled to any other nationality or citizenship. The Tribunal therefore accepts that the applicants are nationals of Vietnam and has assessed their claims accordingly.
125. There is no evidence before the Tribunal to indicate that any of the applicants have any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
126. Only the first named applicant has made claims for protection, with the other applicants relying on their membership of the first named applicant’s family unit.
Multiple applications for protection
127. The applicants first lodged an application for protection on 9 November 2017. This application was based on claims that the first named applicant feared harm if he returned to Vietnam because he owed money to loan sharks.
128. On 19 November 2018 the applicants lodged a fresh application for protection which was based on claims that the first named applicant feared harm if he returned to Vietnam due to his actual and imputed political profile. In conjunction with this application, the first named applicant submitted to the Department that he had been the unwitting victim of a fraud by an unscrupulous person when the first application was lodged in November 2017.
129. The Tribunal has considered the consistent explanations offered over time by the first named applicant that sometime in 2017 he was introduced to a lady named [Ms C] who claimed to be a lawyer or migration agent and that he provided instructions to this lady to apply for protection on his behalf based on his actual and imputed political profile. However, this lady took his money and lodged claims that did not represent the first named applicant’s instructions. The first named applicant has also claimed that he was not aware of the nature of these claims at the time that the first application was lodged with the Department.
130. The Tribunal has placed considerable weight on the fact that the first named applicant and his current registered migration agent informed the Department about the fraudulent nature of the first application before any delegate had substantially considered that application. The Tribunal has also placed considerable weight on the fact that over time the first named applicant has provided the name of this person who allegedly defrauded him, the address where he met this person and the person’s telephone number. The Tribunal has also placed some (but lesser) weight on anecdotal reports over time of such unscrupulous behaviour occurring within some migrant communities in Australia.

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.
Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.
It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.

165. The most recent United States Department of State 2021 Country Reports on Human Rights Practices: Vietnam released on 12 April 2022 discusses the high number of political prisoners or detainees in Vietnam and highlights the prevalence of online activists or ‘bloggers’ amongst these detainees:
Political Prisoners and Detainees

NGOs estimated that as of August, authorities held between 130 and 288 persons for political reasons. According to media, from January 1 to November 9, authorities detained 29 and convicted 27 persons who were exercising internationally recognized human rights, such as freedom of expression, peaceful assembly, and association. Most of these arrests and convictions were linked to online blogging, and defendants were charged with “making, storing, spreading, or propagating information, materials, or items” for the purpose of “opposing” the state and “abusing democratic freedom.”

166. In relation to internet freedom and the risks faced by online critics of the Communist government in Vietnam, the same United States Department of State report provides the following details about the situation in the country in 2021:
Internet Freedom

The law allows the government to restrict and disrupt access to the internet, censor online content, impose criminal sentences for online expression, and routinely monitor private online communications. The limited number of licensed internet service providers were fully or substantially state-controlled companies. The government monitored Facebook and other social medias and punished those who used the internet to organize protests or publish content critical of the government.
In May the Authority of Broadcasting and Electronic Information fined the domestic social media site VNbrands 105 million dong ($4,600) and revoked its license for eight months for what authorities stated was an inadequate disclosure of service conditions and agreements on its homepage. State media sources stated this was a move to further tighten government control over the sharing of information online.
On June 20, a court in Nghe An Province sentenced Nguyen Van Lam to nine years’ imprisonment for “making, storing, distributing, or disseminating information and documents against the State of the Socialist Republic of Vietnam.” According to the indictment, between 2017 and November 2020, Lam used his Facebook account to post articles, images, and videos “to incite people to oppose the state and the party and to slander the regime.”
On June 30, police in Quang Ngai Province arrested Facebook users Bach Van Hien, Phung Thanh Tuyen, and Le Trung Thu for posts allegedly infringing state interests and threatening the communist government. The three men were accused of “abusing freedom and democracy rights to infringe upon the interests of the state [and] the legitimate rights and interests of organizations and individuals.”
On July 6, Hanoi police arrested Do Nam Trung for online writings opposing the government. Trung took part in several activist movements and spoke out against official corruption in his writings on social media. He also posted criticisms of the build-operate-transfer highway system that the country uses, sparking protests over toll collections many described as unfair.
The government sometimes blocked websites it deemed politically or culturally inappropriate, including sites operated by overseas Vietnamese political groups in addition to the websites of Radio Free Asia, Voice of America, and the BBC Vietnamese news service. State-owned internet service providers routinely blocked domestic Vietnamese-language websites that contained content criticizing the CPV or promoted political reform.
An administrative regulation compels owners of all websites and social networking sites to cooperate with the Ministry of Information and Communications to prevent the spread of “bad, toxic news.”
Another rule requires all companies and organizations operating websites providing content on “politics, economics, culture, and society” or operating social networks, including blogging platforms, to register with the government. The government also requires such owners to submit detailed plans of their content and scope for approval. Such companies and organizations must locate at least one server in the country to facilitate government requests for information and must store posted information for 90 days and certain metadata for up to two years.
The government forbids direct access to the internet through foreign internet service providers and requires them to provide technical assistance and workspace to public security agents to allow them to monitor internet activities. The Ministry of Public Security required “internet agents,” including cybercafes, to register the personal information of their customers, store records of internet sites visited by customers, and participate in government investigations of online activity. Internet cafes continued to use government-approved software to monitor customers’ online activities. The Ministry of Public Security enforced these and other requirements and monitored the internet selectively.
The government pressured firms such as Facebook and Google to eliminate “fake accounts” and content deemed “toxic,” including “antistate” materials. Authorities reportedly throttled Facebook’s local servers early in the year, significantly slowing down its local traffic, until the company agreed to significantly increase compliance with government censorship requests. The Ministry of Information and Communications pressured social media platforms to comply with political-speech takedown requests, especially for posts critical of senior CPV officials.
Authorities also suppressed online political expression by direct action against bloggers, such as arrests, short-term detentions, surveillance, intimidation, and the illegal confiscation of computers and cell phones from activists and their family members. The government continued to use national security and other vague provisions of the penal code against activists who peacefully expressed their political views online. Political dissidents and bloggers reported the Ministry of Public Security periodically ordered disconnection of their home internet service.
On June 30, authorities in Bac Ninh Province cut internet and electricity to the entire village of Da Hoi where a crowd had gathered at the home of a soldier, Tran Duc Do, who died under mysterious circumstances during a training exercise.
Social network and blog users were required to provide their full name, national identification number, and address before creating an account. In-country website and social network operators must allow authorities to inspect local servers upon request and must have a mechanism to remove prohibited content within three hours of detection or notification by authorities.

167. These independent reports, including the DFAT report which the Tribunal must take into account pursuant to Ministerial Direction No. 84 made under s 499 of the Act, highlight the risks faced by online critics of the Communist government in Vietnam, including the risk of arrest, detention and imprisonment. The DFAT report makes it clear that even low-level online critics face some risk of arrest and imprisonment, and the report also highlights some possibility that a low-level critics may even face a higher risk of being punished as their punishment is unlikely to generate the same domestic and international attention that the arrest of more high-profile critics may attract. The reports also indicate that more frequent online posting may elevate the risk of a critic coming to the adverse attention of the authorities.
168. In the case of the first named applicant, the Tribunal has already accepted that he has a profile in Vietnam as belonging to a family that is considered to be opposed to the Communist government in Vietnam. The first named applicant has made regular and ongoing Facebook comments critical of the Communist government in Vietnam since 2018 and he has chosen to make some of these comments on the Facebook page of Viet Tan, an opposition group that, as outlined in country information referred to above, the government in Vietnam considers to be a terrorist group. The Tribunal notes that the motivation of an applicant to make such posts, or the motivation behind selecting where to make such posts, cannot be taken into consideration when making an assessment under s 36(2)(aa). The Tribunal also accepts, given the country information referred to above, that the first named applicant’s activities on the Viet Tan Facebook page elevate the risk that his political opinion opposed to the Communist government in Vietnam would come to the attention of the Vietnamese authorities, irrespective of whether the first named applicant continues to make such posts in the future either in Australia or Vietnam.
169. Given the family profile of the first named applicant, given his online commentary over time, given the regular monitoring of online activity by Vietnamese authorities, and given the strong adverse opinion that the Vietnamese authorities have of the Viet Tan organisation, the Tribunal cannot dismiss the possibility that the Vietnamese authorities would take an adverse interest in the first named applicant if he returned to Vietnam would be remote. Therefore, the Tribunal is satisfied that the risk the first named applicant would face if returned to Vietnam would amount to a real risk for the purposes of s 36(2)(aa).
170. If the first named applicant did come to the adverse interest of the Vietnamese authorities, he would be subject to arrest, detention and imprisonment on return to Vietnam for expressing his political opinion opposed to the government in Vietnam which would amount to cruel or inhuman treatment or punishment or degrading treatment or punishment. Therefore, the Tribunal is satisfied that the harm the first applicant would suffer in such circumstances would amount to significant harm for the purposes of s 36(2)(aa).
171. The significant harm would be inflicted by the authorities of Vietnam so the first named applicant would not be able to seek the protection of these authorities and relocation within Vietnam would not be a viable option in these circumstances. In addition, the real risk is one that is faced by the first named applicant personally because of his activities and is not one faced by the population of Vietnam generally. Therefore, s 36(2B) has no application in the first named applicant’s circumstances.
172. Accordingly, having considered all of the first named applicant’s claims individually and cumulatively, the Tribunal is satisfied that there are substantial grounds for believing there is a real risk the first named applicant will suffer significant harm if he were to return to Vietnam. Accordingly, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
173. For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
Secondary applicants
174. The second named, third named and fourth named applicants have not made any claims for protection of their own, instead relying on their membership of the first named applicant’s family unit, and no such claims arise on the evidence before the Tribunal.
175. Therefore, on the evidence before it, the Tribunal is not satisfied that the second named, third named and fourth named applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).

However, the Tribunal is satisfied that these applicants are the wife (in the case of the second named applicant) and the children (in the case of the third and fourth named applicants) of the first named applicant and are therefore members of the same family unit as the first named applicant for the purposes of s 36(2)(c)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.
decision

177. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Peter Katsambanis
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 5095

21 November 2022

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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