2102766 (Refugee)

2102766 (Refugee) [2023] AATA 4467 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2102766
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jessica Henderson
DATE:16 October 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second through seventh named applicants satisfy s 36(2)(aa) of the Migration Act; and
(ii)that the first applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as each of the second through seventh named applicants.

Statement made on 16 October 2023 at 3:49pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – opposition to the government – illegal departure – fear of killing – detention – physical assault – bribery – police mistreatment of suspects – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 65, 66, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MIBP v SZVCH (2016) 244 FCR 366
SZGIZ v MIAC (2013) 212 FCR 235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 February 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Vietnam. They are a husband (applicant husband), wife (applicant wife, collectively applicant parents) and their children (applicant children). The applicant husband, wife and their eldest three children left Vietnam [in] March 2013 and arrived in Australia [in] April 2013. According to Department records they arrived by sea at the Territory of Ashmore and Cartier Islands [in] April 2013.
The parent applicants and their eldest three children were granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 9 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.
The parent applicants’ fourth child was born in Australia on [date].
On 9 August 2016 the first applicant was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV), pursuant to an exercise of Ministerial power to lift the statutory bar in s 91K.
The applicants applied for a Safe Haven Enterprise visa on 9 December 2016 (the first visa application). On 10 April 2017 a delegate of the Minister refused to grant this visa (first decision). At the time it was thought the applicants were ‘fast track’ applicants and the decision was referred to the Immigration Assessment Authority (IAA) on 13 April 2017. On 26 June 2017 the IAA decided to affirm the first decision (IAA decision).
The parent applicants’ fifth child was born in Australia on [date].
In DBB16 v MIBP (2018) 260 FCR 447, 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)). Accordingly, the applicant parents and their eldest three children are not ‘fast track applicants’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
On 16 August 2018 the applicants filed an application for review of the first decision (2018 review application). They were not subject to any time limit for their application because they had not been notified of the first decision pursuant to s 66 of the Migration Act.
On 16 October 2020 the Department wrote to the applicants and advised them that the s 48A bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused had been lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019. The Ministerial Determination specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act, as was then believed to be the case with respect to the first through sixth applicants.
Following this, the applicants purported to make a second application for a Safe Haven Enterprise visa on 16 October 2020 (the second visa application). The second visa application was refused by a delegate on 11 February 2021 (second decision).
An application for review of that decision was made on 5 March 2021 (current review application). The applicants’ representative wrote to the Tribunal drawing attention to the two applications for review of the decisions to refuse each of the first and second visa applications and invited the Tribunal to join the two matters. By the same letter the applicants’ representative suggested that the 2018 review application might be withdrawn to simplify the proceedings.
The applicants appeared before the Tribunal on 16 February 2023 to give evidence and present arguments, represented by Scales. On 23 February 2023 the applicants in the 2018 review application wrote to the Tribunal and withdrew the 2018 application. The Tribunal accepted the withdrawal on 2 March 2023.
It was subsequently drawn to the Tribunal’s attention that, as 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands, and the applicants’ first visa application was not invalid due to the operation of s 91K, they are not, in fact, within the class of persons specified in the then Minister’s s 48B determination. The second visa application is therefore substantially barred by s 48A with respect to the first through sixth applicants. That is extremely unfortunate in circumstances where the Tribunal has accepted the withdrawal of the application for review of the first decision.
However, in SZGIZ v MIAC (2013) 212 FCR 235, the Full Federal Court held at [38] that the operation of s 48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application made on the basis of the complementary protection criterion against the refugee criterion: MIBP v SZVCH (2016) 244 FCR 366 at [44], [97].
The Tribunal is satisfied that the applicant mother and the first five applicant children have not previously made claims of their own against the refugee or complimentary protection criteria; they have at all stages asserted that their claims were made on the basis of their relationship with the applicant father. The sixth child of the applicant parents was not born at the time of the first application, and their inclusion in the second application represents their first application for protection.
The Tribunal has no jurisdiction to consider the applicant father’s claims pursuant to the refugee criteria or complementary protection criteria. However, the Tribunal can still consider the applicant father’s claims insofar as they relate to his membership of the same family unit as the other applicants.
SUBMISSIONS AND EVIDENCE BEFORE THE TRIBUNAL
Material relied upon in the current review
The material relied on by applicants in the current review includes:
a.The statement of the first applicant made on 5 November 2016 (2016 Statement);
b.The material provided to the Tribunal on 9 February 2023, including:
i.An updated statement from the first applicant (2023 Statement);
ii.Pre-hearing submissions (February Submssions);
iii.A letter from the family pastor;
iv.Summonses from Vietnamese authorities with translations;
v.Social media posted by the first applicant;
c.Translations of the media posts, provided to the Tribunal on 7 March 2023; and
d.The submissions before the IAA and the related decision.
Evidence relied upon in the current review
The evidence of the first applicant that the Tribunal is asked to consider includes the following:
a.The first applicant was brought up a Catholic. His family was neither rich nor poor. His father passed away when he was [age] and he went to school until he was about ten years old before leaving to help his family on the farm.
b.When the first applicant was [age] his family moved from the North to the South and his mother opened a restaurant. He attended cooking classes and opened his own restaurant in 2005. In 2012 he became a co-owner of another restaurant, where he continued to work until 2013 when he left Vietnam.
c.In Vietnam he had a prominent role in the Catholic community, where he was responsible for organising Catholic people, by ensuring that they attend church and that their property is safe while they are at church. About once a month he held meetings regarding the running of the Church and the Catholic community in his family home.
d.As a Catholic he had no freedom of speech. If he spoke out he would be reported to the police. He was vulnerable to false reports of unsafe/unhygienic work practices. He would then have to pay around 1.5 million VND a month to avoid a one off fine of 5 million VND.
e.The first applicant was arrested for helping to build a shrine for [a named saint]. He was taken to the police station along with approximately 25 other people who were helping to build the shrine. He was held for about 5 hours. His family had to pay approximately two weeks of income in exchange for his release.
f.The first applicant’s statement that he had not previously been arrested during his initial interview with the Australian authorities was not correct. It was an intentionally misleading statement because he was afraid he would not be allowed to stay in Australia if he told the truth.
g.About 3 months after the first applicant was arrested for building the shrine he was approached by the police who wanted protection money from him. He had to pay approximately two weeks worth of income once a month. He met this requirement for about 3 months, then he said he would not be able to continue. The police took him to the station and beat him, leaving him with injuries severe enough to hospitalise him. They then threatened to kill him. He fled the country with his family.
h.The first applicant has a friend who assisted to build the shrine, who is also a devout Catholic. That friend has been arrested and has been held without access to a lawyer for at least three years. The first applicant is more prominent in the Catholic community than this friend.
With respect to the applicant mother, the evidence is that she comes from a Kinh family of Catholic faith. She attended four years of school before working in a family [business]. She married the applicant father when she was [age] and gave up work at that time.
Interview/s
The applicant husband and wife were separately interviewed on 16 May 2013. The Tribunal has not had the benefit of listening to those interviews, but their interview statements were summarised in the IAA decision in the following terms:
• The applicant husband had not been a member of a political group or organisation and had not been involved in protests against the government. He was a Catholic. His role was to look after the vehicles while the parishioners were at church. Sometimes he acted as a pallbearer. He had never been arrested. The impact of the authorities on his daily life was that it was hard to obtain documents; you had to pay under the table money. Also as a Catholic it was hard to get employment in the village or with an organisation;
• He had left Vietnam because Catholic people had no freedom of speech. If they spoke out then it may be reported to the police, who would come and question and they could be arrested and put in gaol. If somebody didn’t like him or was jealous then they may report that his food is not safe/hygienic. Then the health inspector will come and say there is something wrong with the food. In order to carry on trading he would have to pay under the table money of 1.5 million VND a month. The alternative was to be fined 5 million VND.
• They organised their travel about two weeks before they left. The cost was [amount] VND each for himself and his wife and 3 million each for the children. They did not decide to come to Australia. They just wanted to leave Vietnam and had no idea where the boat was going until they were on it and someone told them it was going to Australia.
• The applicant wife stated it was very difficult to do business in the Vietnamese society. If she makes money the communal authority asks her for money. She makes about 1 million VND a week and she was asked to give money. Her husband organised their travel. She has fear of returning to Vietnam. She fears that with her work she will have to give money to society.[1]
[1] IAA Decision dated 26 June 2017 pp 4-5
By letter dated 19 January 2017 the applicant husband and wife were invited to attend an interview with the Department. The interview was scheduled for 13 February 2017. The interview was recorded and the Tribunal has had the benefit of listening to the recording. Their relevant evidence was correctly summarised in the IAA Decision in the following terms:
·The applicant husband said the local priest in Vietnam was [name]. The applicant husband was the leader of the group of parishioners who were the heads of families. He had been the leader for over two years. 85% of people in the local area were Catholic. There was discrimination against Catholics: for example if two people with the same qualifications were to apply for a job, the non-Catholic would be hired;
·Some time in July or August 2012 the priest ordered a statue of [a named saint]. They built a base for the statue on church land. The base was 2.5 metres square. There were about 20 people involved in the construction of the base. The applicant husband was in charge. Nearly all of the people working on the base were arrested. The priest was not arrested. They were detained for a few hours. His brother came with some money and the police let him go. The statue was subsequently removed by the authorities;
·In December 2012 they were holding a church meeting in the applicants’ house and the police arrested one of the applicant husband’s friends because they thought he was the leader of the group. The delegate asked why the police would have thought that, given that the meeting was in the applicants’ house. The applicant husband responded that they had not arrested the friend at the meeting, they went to his house and arrested him there. The police did not consider it was legal to be Catholic. The applicant husband believes that if he had not left Vietnam then it would be him in gaol instead of his friend. He had never been involved in protests against the government;
·Since his marriage he has been self-employed, running two businesses. The first was a catering business, run from his home. It was a mobile business providing catering for functions. That business has now been taken over by his brother. The second business was a restaurant in [Village 1], he ran that for two to three years prior to his departure. There were people who came to talk to him who did not want him to run the business and they told him to pay 1.5 to 2 million VND a month and they would let the business keep running. The business made 13 to 15 million VND monthly and tax was 500,000 VND monthly. The people were the [Village 2] police. They started asking for the money in August to September 2012. He paid the first time and then stopped. Three months later they came back and arrested him. He was detained for four to five hours. They assaulted him. He was not charged with anything but they hit him very badly. He phoned his brother to come and collect him.
·After the arrest he sold the restaurant. He continued to run the catering business. The police said next month if you don’t pay you will be arrested or put in gaol or hit again. He did not pay again. He was concerned that he would be arrested again but did not know how he could leave the country. That was why the family did not leave until the end of March 2013. He sold his house before they left. He was in a hurry to sell. He feared that the house would be confiscated because of their illegal departure. He took [amount] VND of the proceeds of sale and gave the rest to his mother. He had already paid for their trip to Australia before the sale;
·While he was in detention he was asked to see a delegation of Vietnamese government officials who had come to Australia. He refused to see them. A friend of his saw them and all of the information he had provided to the Australian authorities was given to them. If the applicant husband returned to Vietnam then 100% he would be put in gaol or killed. The delegate put to him that country information indicates most Vietnamese claiming asylum in Australia are seen by the Vietnamese authorities as economic refugees. The applicant husband refuted this claim. He stated that everybody that has been returned has been gaoled for 3.5 years and tortured very badly. He provided a number of summonses, issued to his mother in 2013 and 2014. She had been required to attend and was asked about his whereabouts. She said that she did not know where he was. They kept her there for six hours without anything to drink. She had not received a summons since July 2014.
·The applicant wife said they were seeking protection because her husband was hit by the police. This was in January or February 2013. His body was blood soaked. She did not know why he had been hit. She personally had no problems on account of her religion but she was “just a normal Catholic”. Her husband was the leader of a group comprising the heads of families. She had no idea what he did in relation to this group. She did not know whether he had ever been arrested, he did not talk to her about it. She had never protested against the government but her husband had. If they return then she and her husband will be arrested. They will hit him until he dies. Their children will be orphans. All of their property will be confiscated. They will do unspeakable things.
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
Catholicism
The applicants’ claim to be practicing Catholics has been consistent from the time of their arrival in Australia, and their Catholicism has been accepted by each decision maker. There is no evidence that suggests that the applicants are not practicing Catholics. The Tribunal finds that each applicant is a practicing Catholic.
The applicant father says that his role in the Catholic Community was a prominent one. Importantly for the present purposes, he says that he was the leader of a group called [Group 1] for more than two years. [Group 1] is a group for Catholics with families, including a wife and children. He says that they played a prominent role in looking after locals and helping with funerals.[2]
[2] Applicant Father’s Statutory Declaration dated 30 January 2023 at [7]
In December 2012 the applicant father says that he was holding meetings of [Group 1] in his home. He says that one of his colleagues, [Friend A], was arrested and badly assaulted by the police. The applicant father thinks that the police were motivated by the belief that [Friend A] was the owner of the home at which the meeting took place, although the basis for that belief is not clear to the Tribunal. The applicant father says that he fled as a result of this incident and that his wife and mother were both subsequently questioned about his whereabouts.[3]
[3] Applicant Father’s Statutory Declaration dated 30 January 2023 at [20] – [22]
There is nothing inconsistent in the applicant father’s current claims as compared to his previous claims, although he has now descended into greater detail than he has previously. The Tribunal accepts that this is because he is now represented by an experienced refugee lawyer, who is cognisant of the level of detail required to persuade the Tribunal in cases of this nature. The Tribunal is not satisfied that the nature and scope of the questions directed at the applicant father in his previous interviews would naturally have elicited the above information from the applicant father.
The Tribunal accepts that the applicant father was the leader of a group called [Group 1] that had a sufficient profile in his local community to attract local police attention and intervention.
Police
The applicant father claims to have been targeted by local police because of his Catholicism. He says further that he was the victim of extortion attempts, which he was unable to pay and that as a result he is in danger from the police.
The applicant father says that his mother is routinely questioned by the local police about his whereabouts. He says that she is required to attend the [named] Section of the Police Authority of Ba Ria province “to give information” to [a named inspector] on [specified dates] and was detained for at least six hours on each occasion. The applicants’ agent has provided the Tribunal with what are said to be the summonses from the Vietnamese authorities.[4] The Tribunal gives them little weight, because of the ease with which it is possible to obtain fraudulent documents in Vietnam.[5] However, the applicant father’s overall story is consisted and there is nothing before the Tribunal to suggest that the applicant father is being untruthful in this evidence, which is specific and detailed.
[4] Annexure B to the 2023 submissions.
[5] DFAT Report for Vietnam at [5.42]
The Tribunal accepts that the applicant father has been targeted by local police both before and after his departure from Vietnam, and that the proximate cause is his failure to pay money to the police on request, which the country information suggests is a relatively common occurance in Vietnam.[6]
[6] DFAT Report for Vietnam at [5.4]
Data breaches
The applicants press two data breaches as potential grounds for protection.
Visit to [named detention centre] by immigration officials
The first was a direct sharing of the applicant father’s details with officials from Vietnam who visited [the named] detention centre in 2013. It is not in contention that the applicant’s details were provided to the officials, because he was asked by name to attend an interview. As he declined the interview there is no record regarding the nature of the officials’ interest in him. The incident was reported in SBS News, and the Tribunal notes the following quote from [an official] of the [a community organisation]:
[Details deleted.] [7]
[7] [Details deleted.]
Section A18 is officially known in Vietnam as the Office of Controlling Exit and Entry, however it operates within the Ministry of Public Security and the Vietnamese community regards it as a secret police force.[8]
[8] [Details deleted.]
Then Immigration Minister Tony Burke is reported as admitting that the police were given access “to those whose applications for asylum had been rejected” because Australia needed the co-operation of the Vietnamese government to return them to Vietnam.
This incident goes beyond a mere data breach. The request for an interview by name with the applicant father and his refusal of that interview represents a fresh risk to the applicant as a person unco-operative with the Vietnamese authorities, and as a person who has claimed Australian protection from the Vietnamese secret police in the performance of their immigration duties. The Tribunal considers it highly likely that the incident, as well as drawing attention to the applicant father’s asylum claim, has put the applicant father and his entire family on a watch list as people who have failed to co-operate with immigration officials in detention in Australia.
2014 Data breach
In 2014 a data breach occurred through the Department. The Office of Australia Information Commissioner confirmed that the published information included asylum seeker’s full names, dates of birth, boat arrival details and reasons which led to the person becoming an unlawful non-citizen under the Migration Act. The personal details were available for approximately 9 days on the Department’s website and a further 8 days on the Internet Archive.
The data breach in isolation may not have had much significance. However, in conjunction with the visit to [the named detention centre] and the interest that the police appear to have had in the applicant father prior to his departure from Vietnam, the Tribunal has some concerns. The applicant father’s name may well have been on a watchlist for Vietnamese authorities monitoring internet content and traffic.
Treatment of returnees
The applicant parents fear harm as asylum seekers being returned to Vietnam.
The Tribunal notes a 2019 Global Briefing Report[9] feature on arrests of returned Vietnamese failed asylum seekers, which features the following description of the treatment experienced by a reporting asylum seeker on their return to Vietnam:
It was a stormy June night in 2016 when Van Huynh loaded a fishing skiff with rice, spices, meat, and fish—provisions that were supposed to be enough to last for a month at sea. Thunderstorms and large waves worried Huynh but her husband, Kiet Nguyen, was undaunted as he prepared the boat that would take them, their two children, and 13 other asylum seekers out into the vast ocean with little more to guide them than the slim hope they would make it to the shores of Australia and a better, freer life.
“We wanted to leave Vietnam because our country has no human rights,” Huynh said. “We have no freedom here.”
The trip did not go as planned…On the 21st day they were stopped by Australian authorities and detained. Huynh feared that she would be returned to Vietnam and sent to jail. However, Australian officials assured her they would be fine; agreements were in place with Vietnam to ensure they would not be arrested.
“The Vietnamese government did not keep their promise to Australia,” Huynh said. “They detained and interrogated us and sentenced my husband to three years in prison.”
Huynh’s sentence was suspended, she says, because of their two children.
It has become a familiar refrain: Australia intercepts asylum seekers at sea, asks a few questions on their claim, then sends them packing with a pledge that they won’t be punished. But reports show that many are, indeed, arrested and prosecuted upon their return.[10]
[9] Magazine produced for the 2019 Tokyo B20 Business Summit
[10] ‘Despite Assurances, Vietnam Arrests Returned Asylum Seekers’, Institute of Global Affairs, 1 April 2019 p3
The Tribunal is also concerned about another failed asylum attempt details in the same report, suggesting that 17 Vietnamese returned asylum seekers disappeared in September 2018 after being handed over by Australia to Vietnamese authorities.[11]
[11] ‘Despite Assurances, Vietnam Arrests Returned Asylum Seekers’, Institute of Global Affairs, 1 April 2019 p3-4
The 2022 Department of Foreign Affairs and Trade Country Information Report – Vietnam makes it perfectly clear that the Penal Code in Vietnam prohibits instigating illegal emigration for the purpose of opposing the People’s Government, and that the crime applies to individual emigres as well as to those who have arranged and facilitated the travel of their families.[12] That phrase ‘opposing the People’s Government’ is ominous in light of the non-compliance by the applicant father and his family with the request for an interview by the Vietnamese police in Australia.
[12] DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 11 January 2022 [5.30] p33.
Cumulative claims
The Tribunal accepts that the applicants are of the Catholic faith, and that the applicant father, who is the head of the family, is the leader of [Group 1], a family-representative Catholic organisation of sufficient prominence to attract negative attention from local authorities in Vietnam.
The Tribunal further accepts that the applicant father has had at least one serious disagreement with local police in Vietnam, which caused him to flee leaving his wife and mother to deal with the police.
The interaction of the applicant father with Vietnamese police and their resulting interest in him do not suggest to the Tribunal that there would be a real chance of serious harm to the second through seventh applicants if they return to Vietnam. Although inconvenient, the Tribunal does not accept that the detention of the applicant father’s mother on four occasions nearly ten years ago gives rise to a real chance of serious or significant harm to the applicant father’s wife and children in the present.
However, the cumulative effect of the applicant father’s claims comprise substantial grounds for the Tribunal to believe that as a necessary and foreseeable consequence of removal to Vietnam there is a real risk that the applicant mother and children will be detained for an unknown period by the immigration authorities on their return to Vietnam. The Tribunal particularly notes the refusal of the applicant father to participate in an interview with Vietnamese secret police, which was only possible because of the protection of Australian authorities; an act which could reasonably be said to be ‘opposing the People’s Administration’ and thus, in the context of the departure from Vietnam, a breach of Article 91 of the Vietnamese Penal Code.
DFAT reports that police abuse is commonplace in situations of arrest or interrogating suspects; limited oversight for such actions exists. Police are said to commonly mistreat or torture suspects during arrest, interrogation, or detention.[13] The applicant wife and the eldest of the applicant children (who is currently [age]) may be interrogated as members of the applicant father’s family. On the country information available it is not clear to the Tribunal whether the younger children (currently [respective ages]) would be exposed to interrogation, but the Tribunal considers that detention for a matter of hours away from their parents in the hands of authorities may well comprise significant harm in and of itself for the children, given their ages.
[13] ‘Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 3, 20230322091151
Given that the three older children have lived in Australia for a decade and the two younger children have spent their entire lives in Australia, the response of the children to aggression and detention by the authorities on their return to Vietnam is a dangerous unknown. The Tribunal considers that there is a real risk that the response of the children to arrest and questioning on entry to Vietnam may trigger a response against them from the police in Vietnam which may involve assault and torture.
The Tribunal finds that the Catholicism of the applicants, the interest that the police in Vietnam have displayed in the head of the household, coupled with the incident at [the named detention centre], the data breach, the ages of the children and the long period of time that they have spent in Australia all collectively comprise substantial grounds for the Tribunal to believe that there is a real risk that the applicants will suffer significant harm if they are removed from Australia and returned to Vietnam. This is particularly so against the backdrop of country information suggesting that some illegal immigrants who have travelled to Australia by boat and been returned have been detained for prolonged periods or have disappeared entirely after they have been handed to the Vietnamese government.
There is no evidence of any right to reside in a third country, and the risk is not one that confronts the population generally. As the risk of harm arises on the point of entry, relocation will not protect the applicants and the risk arises at the hands of the authorities making protection from them unlikely.
For these reasons, the Tribunal finds that the second through seventh applicants satisfy the criteria in s 36(2)(aa).
It is beyond the jurisdiction of the Tribunal to consider whether the first applicant has a claim pursuant to the refugee or complementary protection criteria. However, the Tribunal finds that he is a member of the same family unit as the second through seventh applicants, and as such the fate of his application depends on the outcome of theirs.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
a.That the second through seventh named applicants satisfy s 36(2)(aa) of the Migration Act; and
b.That the first named applicant satisfies s 36(2)(c)(i) of the Migration Act on the basis of membership of the same family unit as each of the second through seventh named applicants.
Jessica Henderson
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.
…

[2023] AATA 4467

16 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Natural Justice