2016755 (Refugee)

2016755 (Refugee) [2023] AATA 3778 (28 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Hoang
CASE NUMBER:  2016755; 2016433
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Alison Murphy
DATE:28 July 2023
PLACE OF DECISION:  Melbourne
DECISION IN 2016755: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
DECISION IN 2016433: The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 28 July 2023 at 9:47am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – anti-government protester – failed asylum seekers – lack of access to health care, education and other services – threats of harassment, arbitrary arrest and imprisonment – second applicant’s risk of separation from mother – decisions under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 46A, 65, 91K, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
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 23 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a mother and son, currently aged [age] years and [age] years, who claim to be citizens of Vietnam.
The first named applicant (‘the applicant mother’) arrived in Australia by sea [in] April 2013 at the Territory of Ashmore and Cartier Islands. On 15 October 2014, she was granted a subclass 449 (Temporary Safe Haven) visa, valid for one week, after which she was granted a bridging visa. She was initially assessed by the Department to be an ‘unauthorised maritime arrival’ who was statute-barred from lodging a valid application for any visa without Ministerial intervention by s 46A of the Act.
On 11 February 2016 the Minister exercised his powers under s 46A(2) of the Act and on 17 May 2016 the applicant mother was invited by the Department to make an application for a Temporary Protection Visa or Safe Have Enterprise Visa (TPV or SHEV). She lodged an application for a SHEV on 29 June 2017 (the first SHEV), shortly before the second named applicant was born on [date] (‘the applicant child’). The applicant child was subsequently added to the first SHEV application.
On 6 August 2018, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act))[1]. The Department wrote to the applicant mother on 25 June 2020 advising her that she was affected by the Court’s decision and that her application for the SHEV was invalid. She was advised that as she was not an ‘unauthorised maritime arrival’, s 91K of the Act prevented her from making a valid application for any visa. That letter also advised her that the Department had initiated a Ministerial Intervention request on her behalf seeking that the Minister determine that section 91K does not apply to her.
[1] DBB16 v MIBP (2018) 260 FCR 447
The Department assessed the SHEV as being valid in respect of the applicant child and continued to assess his claims for the visa. Although the reasons for that are not set out in the material before the Tribunal, the Tribunal assumes it to be because the applicant child was never granted a subclass 449 (Temporary Safe Haven) visa and the statutory bar contained in s 91K only applies to persons who hold, or have held, that visa type.
Having assessed the applicant mother’s first SHEV application to be invalid, the Department wrote to her on 9 July 2020 advising her that the Minister had made a determination that s 91K did not apply to her and she was invited to lodge another application for a TPV or SHEV. The applicant mother lodged a second application for a SHEV on 21 July 2020 (the second SHEV). The applicant child was not included in that application, but was identified as a member of the applicant mother’s family unit. The second SHEV application was assessed as valid by the Department.
On 23 October 2020, the same delegate of the Minister made two separate decisions to refuse to grant each of the first SHEV application (in respect of the applicant mother) and the second SHEV application (in respect of the applicant child). In each case the notifications of refusal sent to the applicants advised them that they had review rights to this Tribunal and applications for review were made within the prescribed time frame.
The Tribunal finds that the first SHEV application is valid in respect of the applicant child and the second SHEV application is valid in respect of the applicant mother.
The applicant mother appeared before the Tribunal on 18 July 2023 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Vietnamese and English languages.
The matters were heard and determined together as the applicants are a family unit who each rely on the claims of the other members of that family unit. The applicants were represented in relation to the review by the same migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether either or both of the applicants is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
It is not in dispute that the applicants are nationals of Vietnam. The applicant mother provided the Department with copies of her Vietnamese birth certificate, citizen identity card and household registration book, all of which are contained on the departmental file. She has at all times identified herself as a Vietnamese national and she has been accepted as such by the Department.
The applicant child was born in Australia and his Australian birth certificate has been produced to the Department. At hearing the applicant mother gave evidence the applicant child’s father is also an asylum seeker from Vietnam, but that they currently have minimal contact. Article 15 of Vietnam’s Law on Vietnamese Nationality (No, 24/2008/QH12) provides that a child born inside or outside Vietnam to two Vietnamese citizens has Vietnamese nationality.[2]
[2] Law on Vietnamese Nationality [Viet Nam], No. 24/2008/QH12, 13 November 2008, available at: >
The Tribunal notes that the applicant mother has recently given birth to a second child, but that child is not the subject of the current review.
The Tribunal finds that each of the applicants is a national of Vietnam and has assessed their claims against Vietnam as their country of nationality and the receiving country.
The applicant’s personal background
The applicant mother’s identity documents confirm her evidence that she originates from Nghi Phuong village, Nghi Loc in Nghe Anh province and she is currently [age] years old.
She is one of [number] children and at hearing she said that her [parents live] in their home in [Village 1]. She gave evidence that her [siblings] had moved to other parts of Vietnam for employments reasons..
The applicant mother was still a school student when she left Vietnam in approximately March 2013, arriving in Australia by boat in April 2013, shortly before she was to have finished her [specified] year of high school.
Since arriving in Australia the applicant mother has had two children, being the applicant child and a younger child who is not the subject of the current review. The applicant gave evidence that their father is also a Vietnamese national seeking asylum in Australia. They were not in a continuing relationship at the time of the applicant child’s birth, but later met up and resumed their relationship. They have separated since the birth of their youngest child and the children’s father has minimal contact with the applicant mother and the children. The applicant mother has recently moved from Melbourne to the Northern Territory and the children’s father sometimes speaks to them on the phone.
The Tribunal accepts the above matters to be true.
Claims for protection
The applicants claim to face persecution and other forms of harm if returned to Vietnam because of their Catholic faith; their actual and imputed political opinion and because they are failed asylum seekers. The applicant mother also fears harm because she is a single mother who has most likely been taken off her household register. She states that the applicant child will not be allowed to register as part of the Ho Khau system with the result that both applicants will not be able to access health care, education or other services.
Catholic faith
The applicant mother claims to be an adherent of the Catholic faith. The delegate’s decision records that ‘the applicant gave sufficiently detailed and consistent evidence about her Catholic faith in both Vietnam and Australia’ and the delegate accepted the applicant is a practicing Catholic.
The Tribunal notes that the applicant mother’s Citizen Identity Card confirms her Catholic religion and records her place of origin as Nghi Phuong, Nghi Loc District, Nghe An province. DFAT reports that around 6% of Vietnam’s population is reported to be Catholic, with a high concentration in central Vietnam, including the applicant’s home province of Nghe Anh.[3]
[3] DFAT Country Information Report Vietnam, 11 January 2022 at 3.13; 3.22 – 3.31
Religious/ political activities in Vietnam
The applicant mother claims to fear harm for reasons of her political activities through [Church 1], that church being part of the Diocese of Vinh. She claims that from mid-2012, she was active in the youth wing of [Church 1], organising demonstrations against the Vietnamese authorities following a conflict between the state and the church in Con Cuong. She claims that her role was to organise young people involved in the church to attend demonstrations and make banners for the protests and she participated in political demonstrations against the Vietnamese government regularly between mid-2012 and her departure from Vietnam in March or April 2013.
She states that the police would try to stop the protests proceeding, pushing the demonstrators backwards and hitting them with batons. She was not hurt or arrested because of her young age, but the police would call her parents in for questioning and attend the family home. Her parents were also involved in the church’s protest activities. At hearing the applicant gave evidence that the local police came to her home and questioned her parents about her activities every few weeks following the start of the protests in mid-2012 and that they have continued to visit and question her parents following the applicant’s departure from Vietnam in about March 2013.
The applicant mother claims that a few months before she left Vietnam in 2013, [several people known to her] were beaten and arrested by the Vietnamese authorities, including [Khoi Van Ngo]. Her father was also beaten during this demonstration and arrested and detained for questioning by the authorities. When her father returned home he would not tell them what happened but he was very scared that something bad would happen to the applicant, believing that as she was about to turn [age] she may be arrested or similar. Her father made all the arrangements for her travel to Australia and she left Vietnam from Vinh airport with her [cousin]. She claims that her family have had many problems with the Vietnamese government and the local authorities often come to the family home and ask questions about her whereabouts.
The Department file indicates that the applicant mother was interviewed about her claims by telephone on 25 September 2020, more than 7 years after she arrived in Australia and sought protection and 8 years after the events that form the basis of her claims. The delegate did not accept the applicant mother’s claims about her political activities to be true, considering her evidence at interview about these activities at interview was ‘vague, inconsistent and confused’. In particular the delegate noted apparent discrepancies as to whether the applicant mother was aged [age] or [age] when she participated in the protests organised by her church; the number of protests that in which she was involved; the number of members of the youth group of that church and the messaging on the banners and t-shirts worn by the protesters. The delegate was also concerned that the applicant mother did not mention being involved in any protest activities or a member in the church’s youth group in the entry interview she undertook shortly after her arrival in Australia.
However the Tribunal notes that the brief record of the entry interview that took place on 16 May 2013 indicates that the applicant did in fact state that she and her family were involved in protests against the government in 2012 through their local parish church. She is also recorded as stating that she left Vietnam because of religious conflict, describing the conflict between the police and the Catholic Church in Vinh province following events in Con Cuong in mid-2012. She also stated that her parents held prayer sessions at their home and that she displayed a banner stating that they were protesting against the Nghe Anh government authorities.
It is clear from the record of the entry interview that the applicant mother claimed that the reason she left Vietnam was that she and her family had been involved in protest activities through the church in 2012 following the events in Con Cuong. She has also consistently stated that her father arranged her departure from Vietnam in March or April 2013, only a month before she would have finished her [specified] year of high school in May 2013. She was [age] years old when she arrived in Australia by boat.
As noted above, the circumstances in which the applicant mother arrived in Australia meant that she was statute-barred from making a valid application for any visa without the Minister’s intervention. Therefore she had no opportunity to set out her claims for protection in full until she was invited to lodge the first SHEV application in June 2017. She was not interviewed about her claims until September 2020 and that interview took place by telephone, presumably because of COVID-19 restrictions in operation at that time.
Her first substantive statement of claims is dated 16 June 2017 in which she elaborates on the matters raised in her entry interview. She provided a further statement on 21 July 2020 in the context of the second SHEV application, in which she substantially relied upon the June 2017 statement and provided some updated information about her circumstances. She provided a third written statement in the context of the Tribunal’s review, again referring to her original claims and providing updated information. At the Tribunal hearing her evidence was materially consistent with her written claims and her statements at the departmental interview as well as country information about the conflict between the Catholic church in the Diocese of Vinh and the Vietnamese authorities in the second half of 2012.
In that regard the tribunal notes that on 1 July 2012, a service at the Con Cuong Catholic church was disrupted by a group of armed soldiers, public security officers, government officials and hired thugs associated with the Vietnamese authorities. Dozens of parishioners were beaten by the group with some suffering serious injuries.[4] Con Cuong is in Nghe Anh province, approximately 100km from the applicant’s village of Nghi Phuong.
[4] The Nguyen Kim Dien Priests Group/Committee of Justice and Peace for the Vietnamese Catholic Community of Archdiocese of Galveston-Houston] n.d. [2013], ‘Vietnam’s Repression of the Catholic Church from 2009 through 2013 – Material for the Universal Periodic Review’, page 7
The Con Cuong incident sparked protests across Vietnam, with more than 10,000 Catholics reported to have marched later that month in different areas of the Diocese of Vinh. [5] As a single party Communist state, the Vietnamese authorities are sensitive to such protests and security provisions of the Penal Code that prohibit actions against the People’s Government effectively outlaw protests the government finds sensitive.[6] On the eve of the planned marches, the Vietnamese authorities stationed armoured vehicles outside the residence of the Bishop of Vinh in an attempt to intimidate Catholics into not attending the march and police were placed on alert. Many young people accused the government of ‘showing the military because they fear the strength of the Catholics.’[7] Clashes between Catholics and the authorities in the diocese of Vinh are reported to have continued through 2013.[8]
[5] DFAT Country Information Report Vietnam, 11 January 2022 at 3.52–3.57, 3.65.
[6] Ibid.
[7] An Dang J B ‘(with the collaboration of Br. Paul)’ 2012, ‘Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom’, AsiaNews.it, 16 July <
[8] Radio Free Asia Vietnamese Service 2014, ‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia website, 10 September at < ; National Catholic Reporter 2014, ‘Vietnam church gets involved in national and international issues’, 16 October < type="1">
The Tribunal has considered the inconsistencies identified by the delegate but considers they are minor in nature and may result from the combination of the applicant’s young age when she arrived in Australia; her lack of English; the long period of time that elapsed between her arrival and the fact that she was interviewed by telephone during COVID-19 restrictions.
The Tribunal notes the applicant’s claim in her first written statement that the arrest of [Ngo Van Khoi], and several other church members occurred a few months prior to her departure from Vietnam, when news reports show those arrests in fact occurred a few months after her departure. However the applicant does not claim to have been present or otherwise involved in those arrests, and it is clear that those arrests did take place in the applicant’s home village (see country information below). In these circumstances the Tribunal does not consider it particularly significant that the applicant misremembered the timing of those arrests.
It is apparent though that these arrests, and the subsequent clash between members of the My Yen Church and the Vietnamese authorities, could not have been the reason the applicant’s father to make arrangements for her departure from Vietnam. However the conflict between Catholics in the Diocese of Vinh and the Vietnamese authorities had been ongoing for some months by the time of the applicant’s departure from Vietnam. The Tribunal also considers it relevant that the applicant’s father arranged her departure from Vietnam just a couple of months before she was due to complete [specified year in] school, and accepts her father held genuine and immediate fears on her behalf.
Having examined the manner in which the applicant mother’s written claims were made over time; and with the benefit of hearing the departmental interview and the applicant’s oral evidence at hearing, the Tribunal considers she has been materially consistent in her evidence as to the events that led up to her departure from Vietnam and those claims are consistent with the available country information.
For all of these reasons the Tribunal considers the applicant to be a credible witness. On the basis of the applicant’s oral and documentary evidence, the Tribunal accepts the following matters to be true:
·The applicant was born into a Catholic family from Nghi Phuong village, Nghi Loc, Nghe Anh Province. The applicant’s parish church was [Church 1];
·Following the incident at the Con Cuong parish church in July 2012, the applicant’s parish church joined other Catholic parishes in staging wide-spread protests throughout the Diocese of Vinh. The police sought to shut down those protests, and clashes between the police and protesters continued throughout 2012 and the first part of 2013;
·The applicant was responsible for organising the participation of the youth members of [Church 1] in those protests including by speaking to young church members to encourage their participation, organising their attendance at the demonstrations and making banners for the protesters to carry. She attended the protests every few weeks and saw people beaten and pushed back by the police. On a couple of occasions she was followed from the demonstrations by men she thought may be police officers who warned her not to continue her involvement in the protests;
·The applicant was not detained or arrested because of her young age, but her parents were questioned on a number of occasions about her organisation of the protests. In making that assessment the Tribunal notes that country information indicates that family members of activists report numerous incidents of harassment, intimidation, and questioning by Ministry of Public Security officials.[9]
·On one occasion her father was also beaten and briefly detained for a few hours following a protest outside a police station where he was protesting the arrest of some church members. A few weeks before the applicant left Vietnam her father was summonsed to the police station and when he returned he was very nervous that something would happen to the applicant after she turned [age] in early 2013. He obtained a passport for her and made arrangements for her to leave Vietnam by air in or about March 2013 with her cousin.
·Before giving birth to her first child, the applicant was involved in some advocacy and demonstrations against the Vietnamese government in Melbourne. At hearing she gave evidence that she stopped participating in any activities in Australia after the birth of her first child, because she could not afford to do so now that she was a mother. The Tribunal accepts that she has ceased her advocacy for Catholics in Vietnam because of her fears for her children if they are returned to that country.
·The Tribunal notes the clarification by the applicant’s representative at the commencement of the hearing that the applicant has not joined Viet Tan since her arrival in Australia, and that the suggestion to the contrary in submissions to the Tribunal was in error.
[9] Country Reports on Human Rights Practices for 2022 - Vietnam, US Department of State, 20 March 2023; UK Home Office Country Policy and Information Note, Vietnam: Opposition to the State, September 2018 at 2.4.22
The applicant has consistently claimed that on a number of occasions since the applicant left Vietnam, the Vietnamese authorities have visited the applicant’s home and asked questions about the applicant and her whereabouts having become aware she is an asylum seeker in Australia through her neighbours. The delegate did not accept this to be true, noting she departed Vietnam on her own passport in about March 2013 indicating that she was not of any adverse interest to the authorities at that time.
DFAT reports that the Vietnamese government imposes controls on entry and exits for political activists and government critics, including by refusal to issue passports or laying criminal charges to prevent travel. At hearing I discussed with the applicant that being issued a passport and being allowed to depart Vietnam legally in 2013 may indicate that she was not of adverse interest to the Vietnamese authorities at that time. The applicant stated that she believed passports were issued by the provincial authorities in Vietnam and her interactions had been with local authorities.
The Tribunal considers that the applicant’s legal departure from Vietnam in about March 2013, using a passport genuinely issued to her, is an indication that she was not of adverse interest to Vietnam’s national or provincial authorities at that time. However consistently with the applicant’s evidence, DFAT reports that police in Vietnam operate at national, provincial, district and commune levels, while passports are issued by central authorities in consultation with provincial authorities who verify the applicant’s identity.[10] For the reasons set out above the Tribunal has accepted that the applicant had a number of interactions with the local or commune police before her departure and was known to them as a young Catholic woman who had been involved in organising local anti-government protests with [Church 1].
[10] DFAT Country Information Report Vietnam, 11 January 2022 at 5.2
Media reports confirm that shortly after the applicant’s arrival in Australia, a number of people from the My Yen church were searched and arrested by the Vietnamese authorities, including a person identified by the applicant as [a person known to her,] Ngo Van Khoi. The Tribunal notes that news report that police officers searched Catholics attending Mass at a church in Nghi Phuong in May 2013, arresting Ngo Van Khoi and Nguyen Van Hai for ‘disturbing public order’.[i] In September 2013, police attacked hundreds of protesters seeking the release of Ngo Van Khoi and Nguyen Van Hai in front of My Yen church with live ammunition and hand grenades, arresting dozens of protesters. One thousand police are reported to have been involved in ending the protest, firing in the air and hitting protesters with electric batons in what is described as one of the most violent and bloody acts of repression carried out by the Vietnamese authorities in recent years, with a number of people requiring hospital treatment and some patients being transferred urgently to Hanoi.[11]
[11] Vietnamese Catholics jailed despite protests (worldwatchmonitor.org); VIETNAM Nghe An: police cracks down hard on Catholics protest (asianews.it)
In circumstances where the applicant’s local parish church became a focus of the conflict between the Vietnamese authorities and the Catholic church, the Tribunal accepts that the local authorities in the applicant’s village of Nghi Phuong may have retained an ongoing interest in the church members identified as organising those protests. The Tribunal accepts the applicant’s evidence that from time to time since her departure, her parents have been visited by the commune police who ask questions about her whereabouts and intentions to return.
Risk of harm on return
The applicant mother departed Vietnam legally, but she no longer has a valid passport and the Tribunal accepts she will not return voluntarily. As a consequence the Tribunal accepts her deportation will likely involve the Vietnamese authorities becoming aware of her status as a person who has applied for asylum in Australia. The Tribunal has had regard to the media articles and submissions provided by her representative about the arrest and detention of some persons returned to Vietnam by Australia, but notes that those people were suspected of being organisers and passengers on asylum seeker boats departing Vietnam illegally for Australia. In this case the applicant mother departed Vietnam legally by air and there is no suggestion that she would be perceived as a people smuggler or someone who departed Vietnam illegally and consequently the Tribunal does not accept she would face a risk of harm for that reason.
The Tribunal has accepted that the applicant was responsible for organising the participation of young members of [Church 1] in protests in 2012 and 2013 as well as attending those protests herself. The Tribunal has also accepted that the applicant had a number of interactions with the local commune police before her departure from Vietnam and was known to them as a young Catholic woman who had been involved in organising local anti-government protests with [Church 1]. The Tribunal has also accepted that from time to time, her parents are visited by the local police who ask questions about her whereabouts and return.
DFAT reports that Vietnam is officially an atheist state with a constitutional guarantee of freedom of belief and religion. Despite this, religious groups are required to register with the government and authorities place restrictions on the activities of believers. Religious activities, including routine worship, festivals and conferences are required to be registered and the authorities may disallow those activities on national security or morality grounds. Around 6% of Vietnam’s population is reported to be Catholic, with a high concentration in central Vietnam, including the applicant’s home province of Nghe Anh.[12]
[12] DFAT Country Information Report Vietnam, 11 January 2022 at 3.13; 3.22 – 3.31
Similarly the United Kingdom Home Office reports that members of religious minorities have been subject to oppression and significant physical harm and torture perpetrated by Vietnamese Government officials who ‘continued to monitor, interrogate, arbitrarily detain, and discriminate against some individuals, at least in part, because of their religious beliefs or affiliation’ in order to suppress dissent.[13] The United States Department of State reports that the Vietnamese Government controls religious practices by the use of vague provisions in national security laws.[14]
[13] United Kingdom Home Office, Country Policy and Information Note Vietnam: Ethnic and Religious Minority Groups, February 2022, page 40-1
[14] Country Reports on Human Rights Practices for 2022 - Vietnam, US Department of State, 20 March 2023
The Human Rights Committee of the United Nations expressed its concern about various forms of surveillance, harassment, intimidation and physical assaults directed by the Vietnamese authorities against religious minorities, including Catholic communities and the Red Flag Associations involved in propaganda activities that promote and incite religious discrimination, violence and hate speech.[15] Similarly Human Rights Watch Report reports that ‘Vietnam systematically suppresses basic civil and political rights’ and that persons identified as critics of the Vietnamese government ‘face police intimidation, harassment, restricted movement, arbitrary arrest and detention and imprisonment without fair trial.’[16]
[15] United Nations International Covenant on Civil and Political Rights: Human Rights Committee, Concluding observations on the third periodic report of Viet Nam, 29 August 2019, page 9, para 43
[16] Annual Report on the Human Rights Situation in 2022, Vietnam, Human Rights Watch, 12 January 2023
The US Department of State reports that the Vietnamese government continues to restrict speech that criticized government leaders or the party, promoted political pluralism or multiparty democracy, or questioned policies on sensitive matters, such as human rights, religious freedom, or sovereignty disputes with the People’s Republic of China. Activists within Vietnam report that representatives from state-run organizations and pro-government groups visit their residences and attempt to propagandize or intimidate them into supporting government policies as well as harassing, intimidating and questioning their family members.[17]
[17] Country Reports on Human Rights Practices for 2022 - Vietnam, US Department of State, 20 March 2023
While the events at Con Cuong and Nghi Phuong took place a decade ago and represented a low point in the relationship between the CVP and Vietnam’s Catholic community, DFAT’s most recent report states that the distinction between faith and politics continues to be difficult to draw. It assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment, but those who are perceived to challenge the authority or interests of the Communist Party of Vietnam and its policies, especially through political activism, face a moderate risk of official discrimination which may include arrest or violence. DFAT also reports that the possibility of a low-level activist being arrested cannot be discounted.[18]
[18] DFAT Country Information Report Vietnam, 11 January 2022 at 3.13; 3.22 – 3.31
The Tribunal considers that the applicant’s past activities with [Church 1] places her in a category of Catholics who are politically active and perceived to challenge the authority or interests of the Communist Party of Vietnam and its policies. The Tribunal is mindful that the applicant’s parents also participated in those protests yet remain living in [Village 1], apparently without serious harm, but considers the applicant mother’s profile as a young woman involved in organising other young people to participate in those protests distinguishes her from her parents.
Having accepted that the applicant mother came to the attention of local authorities in her village for her political and religious activities before her departure in 2013 and that she has now been absent from Vietnam for over a decade, the Tribunal accepts there to be a real chance that if returned to her home area she will face a moderate risk of official discrimination and that she may face such harms as monitoring, harassment, arbitrary arrest and imprisonment. The Tribunal is satisfied that harm constitutes ‘serious harm’ for the purposes of s 5J(4)(b) and involves serious and discriminatory conduct for the purposes of s 5J(4)(c). Her political opinion has its origins in her Catholic faith and the Tribunal considers that the essential and significant reason for the harm she fears are her Catholic faith and political opinion (s 5J(4)(a)).
For these reasons the Tribunal finds that the applicant has a well-founded fear of persecution for the combined reasons of her Catholic religion and her political opinion if returned to Vietnam now or in the reasonably foreseeable future. As the persecutor is the Vietnamese government, the Tribunal accepts that the real chance of persecution relates to all areas of Vietnam and effective state protection is not available to her. She cannot be required to modify her behaviour to alter or conceal her religious or political beliefs to avoid a real chance of persecution: s 5J(3)(iii). It follows that she meets the definition of a refugee set out in s 5H. in light of these findings, it is not necessary for the Tribunal to go on to consider the applicant’s claims to fear harm because she is a single mother who has most likely been taken off her household register
The applicant child
The applicant child is a [age]-year-old Vietnamese national born in Australia. It is claimed on his behalf that he has a well-founded fear of persecution for reasons of his Catholic religion; his imputed political opinion and his relationship to his mother. It is also claimed that as a result of being born in Australia, he does not have a Vietnamese birth certificate or a household registration which means he will be unable to obtain routine health care or education. The applicant child’s Australian birth certificate confirms he was born in this country in 2017.
DFAT confirms that without local registration, access to services such as public education and healthcare becomes difficult and a child cannot be registered without household registration documents and an identity card. DFAT reports that applications for birth registration of a child born overseas can be processed through the relevant Vietnamese embassy or consulate.[19] At hearing the applicant mother said that process was for ordinary people, not activists like herself and she has not applied for birth registration for her children through the Vietnamese Embassy in Australia. She said if she were returned to Vietnam, her children would be discriminated against because of her political activities and that they were innocent and did not deserve to experience such things.
[19] DFAT Country Information Report Vietnam, 11 January 2022 at 5.38
For the reasons set out above, the Tribunal has accepted there to be a real chance the applicant mother will face monitoring, harassment, arbitrary arrest and imprisonment and other forms of harm if returned to Vietnam. Such circumstances would create a real chance of serious harm to the applicant child, including that he may be separated from his mother who is his sole care giver, or detained alongside her.
In making that assessment the Tribunal notes that in 2016, four young children of a female Vietnamese asylum-seeker returned to Vietnam from Australia were placed in an orphanage when their mother was jailed for helping organise an illegal departure in the family fishing boat, the children’s father already being in jail for similar offences.[20] In a separate incident, the six-year-old son of former political prisoner Tran Thi Nga was detained alongside his father while his mother was in jail, and separated from his father during that detention.[21]
[20] Kids ‘orphaned’ as Vietnam jails parents over asylum bid | The Australian; EXCLUSIVE: Fate of Vietnamese asylum seeker children hangs in the balance (independentaustralia.net)
[21] The 88 Project for Free Speech in Vietnam Interview with former political prisoner Tran Thi Ngha About Effects of Prison on Women and Children 10 June 2020
In these circumstances the Tribunal accepts there to be a real chance the applicant child will face serious harm for reasons of his membership of his mother’s family unit. It follows that the applicant child has a well-founded fear of persecution for reasons of his membership of the particular social group comprising his family if he is returned to Vietnam now or in the reasonably foreseeable future. As the persecutor is the Vietnamese government, the real chance of persecution relates to all areas of Vietnam and effective state protection is not available to him. For these reasons he meets the definition of a refugee set out in s 5H.
CONCLUSIONS

For the reasons given above, the Tribunal is satisfied that each of the applicant mother and the applicant child is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION IN 2016755 [first named applicant]:
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
DECISION IN 2016433 [second named applicant]:
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
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.

< Nguyen Hun 2012, ‘Vinh: Catholics targeted by thugs and authorities. Dozens of faithful injured during’ [sic], AsiaNews.it, 3 July at VIETNAM Vinh: Catholics targeted by thugs and authorities. Dozens of faithful injured during (asianews.it);

[i] Vietnamese Catholics jailed despite protests (worldwatchmonitor.org)

[2023] AATA 3778

28 July 2023

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