2018339 (Refugee)

[2024] AATA 4445

2018339 (Refugee) [2024] AATA 4445 (6 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Khanh Hoang (MARN: 2015332)

CASE NUMBER:  2018339

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:6 October 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 06 October 2024 at 8:39pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – Viet Tan member in Australia – particular social group – illegal departure – physical assault – fear of detention – recruiting within Vietnam – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 420, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 18 December 2020.

2. The applicant, who claims to be a citizen of Vietnam, applied for a Protection visa.[2] Her application was refused on the basis that she was not a refugee as defined by the Act,[3] and therefore she was not a person in respect of whom Australia had protection obligations.[4] In arriving at that decision, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Vietnam, there was a real risk she would suffer significant harm.

   [2]The applicant’s application was received by the Department on 14 October 2013.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] She was represented throughout the review process and at a subsequent time, the Tribunal advised her that it had considered all the necessary material before it relating to her review application and was able to make a favourable decision on that information alone, and therefore she was not required to participate in a hearing.

   [5]The applicant’s review application was filed with the Tribunal on 23 December 2020.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

5. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

6. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that 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, and 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

   [11]Migration Act 1958 (Cth), s 5J(1).

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

8. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

   [13]Migration Act 1958 (Cth), s 36(2)(a).

   [14]Migration Act 1958 (Cth), s 36(2)(aa).

   [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

9. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

   [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

10. Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise if the Minister is satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

11. The applicant claims to be a citizen of Vietnam and provided copies (with English translations) of identity documents and information to the Department to authenticate this claim. The Tribunal accepts her identity and, based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

12. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No.84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [20]Migration Act 1958 (Cth), s 499.

    BACKGROUND

14. The applicant has never obtained a Vietnamese passport, and she managed to depart Vietnam illegally and travelled by boat to Indonesia. With the assistance of people smugglers, she arrived in Australia [in] April 2013 on a boat code-named [name]. She was refused immigration clearance and was detained. On 15 October 2014, she was granted a Humanitarian Stay visa and a Bridging visa and released from immigration detention. At present, she currently remains in the community subject to the conditions of a Bridging visa.

15. She was born and grew up in [Village 1], [Town 1], Nghe An Province of Vietnam. She described her ethnicity as Kinh and she follows the Catholic faith. She claimed that the Vietnamese government, while permitting Catholic worship in the country, had been targeting Catholics in the Nghe An province, and had used excessive force to put down protests and confiscate church land to stop Catholicism from spreading out. She explained that although she had never participated in religious protest rallies in Vietnam, she did attend prayer and blessing ceremonies at local Catholic churches, as well as visiting other churches within the Nghe An province. She described that she was a practising Catholic and had remained in contact with the Catholic church after her arrival in Australia. The Tribunal accepts, and is satisfied, that she has maintained an association with the Catholic church since her arrival in Australia, and she has provided evidence to the Tribunal to support that claim.    

16. She relied upon information she received from her parents, who she claimed had witnessed the damage in [Church 1] in July 2012. Her parents received a message that the police attacked the parishioners of [Church 1], so her parents then went to the church to pray and to support the victims who had been assaulted by the authorities. She claimed that there had been other assaults on Catholics in Vietnam, and gave examples which made her feel fearful and unsafe. She fears being targeted and physically harmed by the police. Because of those reasons, she illegally left Vietnam on a boat to Indonesia with the intention of travelling to Australia. Since arriving in Australia, her mother has told her about an increased number of attacks on young Catholics in the area where she used to live.

17. The applicant also fears being arrested and imprisoned relating to her illegal departure from Vietnam, and if that were to happen, her fear is that because she is a young female, she is at risk of being sexually assaulted in detention.

18. At a subsequent time,[21] the applicant provided to the Department a significant amount of material to support her original claims for protection, along with a new claim that she was associated with the Viet Tan organisation. That material was:

    [21]On 21 October 2020.

    (a)Photographs taken of political, cultural and social activities in which the applicant has participated in Australia;

    (b)Screenshots of her [social media] postings;

    (c)Letter of support from [Father A], Chaplain of [Catholic Group 1] in [City 1];

    (d)Letter of support from [Mr A], who is the [Position 1] of the [City 1] Chapter of Viet Tan;

    (e)Letter of support from [Mr B], the [Position 2] of [Community Group 1];

    (f)Applicant’s statutory declaration dated 21 October 2020;

    (g)DFAT Country Information Report on Vietnam;

    (h)A Wikipedia article about the conviction of 14 dissidents in 2013;

    (i)[A media] article dated [in] 2020 about the arrest and imprisonment of [Activist A], who is an Australian democracy activist;

    (j)The Sydney Morning Herald article dated 11 October 2010 about the arrest of Hong Vo, who is a member of Viet Tan from Australia;

    (k)A Viet Tan [social media] posting dated [in] September 2010 about the detention of four Viet Tan members in Vietnam;

    (l)An 88 Project newsletter numbered 10/2020 dated 9 March 2020 about the situation of various democracy and human rights activists who have been detained by authorities in Vietnam; and

    (m)Transcript of the RFA Vietnamese Service broadcast dated 8 October 2020 about the arrest of journalist Pham Doan Trang.

19. Within her statutory declaration, she discussed some of her personal features, such as her family dynamics, her education and her religion. She also commented on issues relating to the economic hardship her parents experienced following a major incident involving chemical pollution, and her disappointment with the Vietnamese government over its handling of those circumstances. Notwithstanding those points, she also discussed her association with the Viet Tan organisation.

20. She said that she was angry with the Vietnamese government because it had destroyed the livelihood of many others for its (the government’s) own benefit. She had a desire to doing something about speaking up for her family and raising her concerns against the  government. Because of the oppressive regime within Vietnam, she would not be able to do much in Vietnam as ordinary citizens do not have a voice and speak up, or fight against government decisions. She said that because of the risk of imprisonment for standing up and speaking out against the government, she did not engage in any active participation in anti-government protests or rallies within Vietnam. 

21. It was not until 2017 that she started to participate in the Viet Tan activities within Australia, however, because of the careful approach of the Viet Tan in selecting its membership, she was only allowed to officially join the organisation [in] July 2018. She disclosed that when she obtained membership, she publicly announced her membership on social media, and she posted many photographs of various Viet Tan public activities. She said that she often shares and writes comments and opinions on [social media] that criticise the Vietnamese government, and shares the contents of the Viet Tan official [social media] page via her own [social media] profile. Those posts are available to be viewed by the general public. 

22. She went on to say that because she was a member of the Viet Tan organisation, and that she had actively published and displayed photographs and other material on her own [social media] page in support of that organisation, she had a well-founded fear for her own safety, and she would be persecuted for her political opinion should she return to Vietnam. She also relied upon the organisation having been declared by the Vietnamese government as a terrorist organisation, and if she did returned to Vietnam, she would be arrested, imprisoned for a long period of time, harassed, tortured in prison and denied government services. She gave numerous examples of that occurring to other Viet Tan members who had returned to Vietnam. 

23. On 22 October 2020, the applicant provided further information to the Department which supported not only her comments about the dynamics of her family in Vietnam, but also her relationship with the Viet Tan organisation in Australia.

24. At a subsequent time, the delegate’s overall assessment was that the applicant’s arrival in Australia was for the purpose of her relocating to Australia because of economic reasons within Vietnam.

25. The delegate then turned to consider the applicant’s current membership of the Viet Tan organisation and referred to the letters authored by [Catholic Group 1] in Australia and the [Position 1] of the [City 1] Chapter of Viet Tan. Both of those documents appear to be genuine. More recent and up-to-date letters have been provided from those organisations to the Tribunal.

26. In respect to the letter from [Catholic Group 1] of [City 1],[22] this is a character reference for the applicant and it confirmed that she had been a parishioner at the [Parish 1] community since 2013, and she attends regular Catholic masses and is an active member of the Vietnamese Catholic youth movement. Regarding her relationship with the Viet Tan organisation, two letters from executive members of that organisation were recently provided to the Tribunal. The Tribunal will return later in these Reasons to discuss the contents of those documents.

    [22]Dated [in] September 2024.

27. In respect to her political activities in Australia, at the time of the delegate’s decision in December 2020, it was acknowledged that she was a member of the Viet Tan organisation, however, the delegate was of the view (and so found) that her connection to that organisation was not to a standard where she had a high enough profile to sufficiently attract adverse attention from the Vietnamese authorities. The delegate also found that she joined the Viet Tan to strengthen her protection claims.

    Viet tan organisation

28. The December 2019 DFAT Country Information Report (‘DFAT report’) provides that Article 4 of the Vietnamese Constitution establishes the Communist Party of Vietnam (‘CPV’) as the only legal political party in the country. The CPV tightly controls political discourse, and there are very few formal avenues for political participation for non-members. The structure of Vietnamese society strongly favours those with CPV ties, and after the Vietnam War, trusted CPV members and their families were awarded with prime positions, while those Vietnamese citizens previously allied to the United States were punished and their children denied opportunities. The importance of CPV membership and loyalty for social and professional advancement endures in current Vietnam.

29. To avoid harassment, arrest and detention, opposition political parties are typically based outside of Vietnam. The Vietnam Reform Revolutionary Party (known as Viet Tan) is a United States based opposition group which advocates for democracy in Vietnam. The Viet Tan organisation has an active branch within Australia. Since 2016, the Vietnamese communist government has considered the Viet Tan organisation to be a terrorist organisation, and anyone involved with Viet Tan would be considered as an accomplice to terrorism. Further to this, other foreign-based opposition groups, such as the Brotherhood for Democracy, have also been accused of carrying out activities aimed at overthrowing the government. The Brotherhood for Democracy is reported to have funding links to Viet Tan.[23]

    [23]The DFAT Country Information Report, Vietnam, 13 December 2019, page 25, paragraphs 3.46 to 3.47.

    Applicant’s association with Viet Tan – political opinion

30. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement that the person fears being persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion.[24]

    [24]Migration Act (Cth), s 5J(1)(a).

1. The Act goes on to provide that a person does not have a well-founded fear of persecution if effective protective measures are available to the person in their country of nationality.[25] It also makes provision as to whether the applicant could take reasonable steps to modify her behaviour so as to avoid the real chance of persecution in Vietnam.[26] There are a number of examples listed within the legislation, including whether she could alter her political beliefs or conceal her true political beliefs so that a well-founded fear would not exist.

   [25]Migration Act (Cth), s 5J(2).

   [26]Migration Act (Cth), s 5J((3).

2. Because the applicant claims to have a well-founded fear of persecution because of her political opinion, the Act provides that her reason for such a claim must be an essential and significant reason.[27] Added to that, the Act requires that her fear of persecution under section 5J(1)(a) of the Act must involve serious harm to her,[28] and serious harm is described within section 5J(5) of the Act as a threat to her life or liberty; significant physical harassment of the applicant; significant physical ill treatment of her; significant economic hardship that threatens her capacity to subsist; a denial of access to basic services, where the denial threatens her capacity to subsist; as well as a denial of the capacity for her to earn a livelihood of any kind, where the denial threatens her capacity to subsist. In furtherance to that, her fear of persecution has to involve systematic and discriminatory conduct.[29]

   [27]Migration Act (Cth), s 5J(4)(a).

   [28]Migration Act (Cth), s 5J(4)(b).

   [29]Migration Act (Cth), s 5J(4)(c).

3. In situations where there has been a significant amount of time between the making of a primary decision and a review hearing, invariably the Tribunal will be afforded further or additional information and/or evidence outside what was available to the original decision maker. This is one of those cases.

4. After being advised by the Tribunal that a hearing had been scheduled in regard to her review application, the applicant’s legal representative provided additional material for consideration. Included within an email provided to the Tribunal on 18 September 2024 were the following documents:

   (a)A letter from [Mr C] dated 4 September 2024. In that letter, [Mr C] outlined that he is a representative of the [City 1] Chapter of Viet Tan. He  confirmed that the letter was in support of the applicant’s application for a Protection visa and described that she regularly attended Viet Tan meetings, and she had participated in all Viet Tan activities including rallies and demonstrations. The letter went on to say that she was currently [a contributor to] the Viet Tan [social media] page called [name].

   The letter went on to describe that the applicant maintains regular contact with her family and friends in Vietnam, and she continues to maintain and expand upon those contacts with a view of sharing information about what was described as the wrongdoings of the Vietnamese government, and information about the Viet Tan organisation. [Mr C] further described that because of the work undertaken by the applicant in regard to recruiting within Vietnam, it is for that reason that she would be at serious risk of being harmed if she returned to Vietnam.

   (b)A letter from [Father A]. He is a Chaplain of [Catholic Group 1] of [City 1]. The letter was dated [in] September 2024, and earlier in within these Reasons the Tribunal made reference to that letter being a character reference in regard to her commitment to the Catholic Church.

   (c)122 pages of screenshots from the applicant’s [social media] page. The Tribunal is satisfied that within those pages of screenshots, there is a significant amount of political commentary by the applicant, which in the Tribunal’s view raises her profile so far as her having an actual political opinion in respect to the Vietnamese communist government.

5. On 19 September 2024, the applicant’s legal representative provided to the Tribunal a letter from [Mr A].  [Mr A] is the [Position 1] of the [City 1] Chapter of Viet Tan. He outlined that he first met the applicant in 2017, and since [July] 2018 she has been an active member of Viet Tan, and she had continued to advance her role within the organisation. There has been regular contact between them through their respective roles within the organisation and he described that she has played a key role in recruiting new members from within Vietnam, fundraising and [contributing to] the organisation’s [social media presence]. Also described in the letter is a chronology of the number of Viet Tan events which the applicant had either organised or attended, including the annual [specified events]; and she had annually since 2017 helped organise [another event]. [Mr A] described her involvement in those activities as exposing her identity as someone significantly involved with Viet Tan. The Tribunal accepts the contents of that letter as confirmation of the applicant’s significant involvement in the administration of Viet Tan’s affairs in [City 1].

6. On 23 September 2024, the Tribunal was provided with quite a number of photographs showing the applicant’s involvement with a number of Viet Tan activities. The Tribunal accepts, and is satisfied, that those photographs clearly identify the applicant as a member of Viet Tan. For example, she has provided photographs of herself attending the [named] event in [2023 and] 2024, the [specified] annual meeting, the June 2024 [event], along with photographs of her with [Activist A]. Those photographs were posted on the organisation’s [social media] page.

7. The significance of [Activist A] is that he is an Australian citizen and member of Viet Tan. In [year], he travelled to Vietnam and was detained after he arrived in that country. He was sentenced to [term] imprisonment for being a member of Viet Tan and meeting a friend and fellow pro-democracy activist during his visit.  

   Unlawful departure from Vietnam

8. The latest DFAT Country Information Report for Vietnam provides that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in those types of operations, with people being detained for multiple days or recalled for further questioning. Returnees from Australia are occasionally questioned upon their arrival in Vietnam, with the interview process generally taking between one to two hours. The focus of the interview is to obtain information about the facilitation of any illegal movement on their part whilst abroad. The country information also provides that would-be migrants who have employed the services of people smugglers only face (at worst) an administrative fine, including in cases of multiple illegal departures.

9. Returnees, including failed asylum seekers, typically face a range of difficulties upon their return to Vietnam. That includes unemployment or underemployment, and challenges associated with accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.[30]

   [30]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraphs 5.29 to 5.35.

10. DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals, however those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated as activist and may be prevented from leaving their homes; and if they did stay away from home overnight, this requires them to register with local police. This all leads to preventing their movement within Vietnam.[31]

    [31]The DFAT Country Information Report, Vietnam, 11 January 2022, pages 18 to 19, paragraphs 3.49 to 3.57.

    CONCLUSION AND REFUGEE FINDINGS

11. The very nature of a review hearing is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it, and to give a fresh consideration to all of that material, information and evidence and to make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Act provides that when the Tribunal is considering this matter, although it is not bound by technicalities, legal forms or rules of evidence; it must act according to substantial justice and the merits of the applicant’s case.[32]

    [32]Migration Act 1958 (Cth), s 420.

12. By its own character, a review hearing is also inquisitorial in nature, and although the Tribunal can seek out evidence it considers is required in order to reach a determination in this matter, the Tribunal is under no obligation to seek out evidence to support the applicant’s claims, even though it is entitled to do so.[33]

    [33]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

13. There is no requirement placed upon the Tribunal to make the applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. There is no obligation or responsibility on the Tribunal’s part to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing her claims,[34] nor is it required to accept uncritically any of the allegations she makes.[35]

    [34]Migration Act 1958 (Cth), s 5AAA.

    [35]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

14. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

15. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion.

16. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Vietnam, there exists a real risk that she will suffer significant harm or there is a real chance he would suffer serious harm on the grounds of her having a political opinion, and also because she is a member of the Viet Tan organisation.  

17. Having regard to the observations of the facts, circumstances and evidence as already explored within these Reasons, the Tribunal accepts (and so finds) that a significant amount of credibility lies within the claims made by the applicant that she is an active and prominent member of the Viet Tan organisation, and because she is significantly involved in that organisation’s activities, she has an identifiable political profile. The Tribunal is also satisfied (and so finds) that she is clearly identifiable, and has an online presence within the organisation’s social media platform through her attendance at, and participation in, a number of events and functions related to the Viet Tan organisation in Australia. The Tribunal is further satisfied that not only does she have a current involvement within the organisation, but that involvement is also ongoing. Because of that, there are no real reasonable steps that could be taken by her to modify her actual political profile to avoid the real chance of her being persecuted if he returned to Vietnam.    

18. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is a real chance she will be persecuted for reasons of her political opinion if she were to return to Vietnam, and her fear of persecution is well-founded as required by section 5J of the Act. Therefore, the Tribunal is satisfied (and so finds) that she is a refugee within the meaning of section 5H of the Act and she meets the criteria for the granting of a Protection visa.

    DECISION

19. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Act.

Wayne Pennell
Senior 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.

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36     Protection visas – criteria provided for by this Act

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(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.

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