2105137 (Refugee) - [2024] AATA 1028

2105137 (Refugee) [2024] AATA 1028 (29 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Duc-Dung (Yung) Tran (MARN: 0319577)
CASE NUMBER: 2105137

COUNTRY OF REFERENCE: Vietnam
MEMBER:Brendan Darcy
DATE:29 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 January 2024 at 10:52am
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – opposition to the government – religion – Catholic – detention of family members – physical assault – restrictions on Catholic youth groups – failed asylum seeker – association with Viet Tan in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 46, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 21 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the Socialist Republic of Vietnam (Vietnam), applied for the visa on 2 October 2020.
On 21 October 2021, the delegate refused to grant the visa on the basis that the applicant faced a real chance of serious harm, or a real risk of significant harm, based on his religion, his political opinion or because he is a failed asylum seeker.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. 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 is not a ‘fast track applicant’ (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.
The applicant made an application for review on 22 April 2021. As the applicant was notified of their Part 7 review rights by the Department on 21 April 2021, he made a valid application for review within the prescribed period.
The applicant appeared before the Tribunal on 16 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment B 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 Attachment B 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born in Do Luong in the Vietnamese province of Nghe An Province on [date].
[In] April 2013, he departed Vietnam by travelling to [Country 1] on his passport and then to [Country 2], before arriving in Australia’s international waters. The applicant was intercepted at Australia’s Indian Ocean territory of Ashmore and Cartier Islands [in] April 2013.
The applicant claimed to have destroyed his identity documents whilst at sea at the command of people smugglers.
The Department conducted an arrival interview with the applicant on 12 May 2013. (The applicant made an additional statement to his answers on 13 August 2013.)
A biodata interview was also conducted by the Department with the applicant on 13 July 2013.
The applicant was released from immigration detention [in] October 2014, after he was granted a Humanitarian Stay (Subclass 449) visa and a Bridging (Subclass 050) visa E (or BVE).
On 18 May 2016, the s 46A bar was lifted for the applicant, allowing him to apply for a Temporary Protection visa or a Safe Haven Enterprise visa. In turn, the applicant lodged an application for a Safe Haven Enterprise (Subclass 790) visa (SHEV) on 1 August 2017.
The Department provided the applicant with notification that his SHEV application was invalid on 17 September 2020.
The applicant was notified by post on 1 October 2020 of the Minister intervening in his matter and lifting the s 91L bar. In turn, the applicant lodged a subsequent application for a SHEV on 2 October 2020.
The applicant failed to appear for a scheduled SHEV interview with the Department on 5 March 2021.
A delegate acting on behalf of the Minister proceeded to refuse to grant the applicant a protection visa on 21 April 2021.
Evidence prior to the date of application
With the assistance of an interpreter in the Vietnamese and English languages, the applicant participated in arrival interview with the Department. It was conducted on 12 May 2013. The applicant advanced the following claims for leaving Vietnam:
Q: Now tell why did you leave Vietnam?
‘The applicant left Vietnam it was very difficult and poor. He came looking for something better.
Q: You came here to work?
Yes, I can help my parents and support them.
Q: Did anyone promise you any work in her or in the farm?
No
Do you have any other reason that you leave Vietnam?
No, it is very hard and difficult to get a job in Vietnam.
Q: is this the only reasons you left Vietnam?
Yes.
The applicant stated he came here to work and support his parents. The applicant stated he did not leave Vietnam for any other reason. It was very difficult to get a job in Vietnam. This was the only reason he left Vietnam.
The applicant said neither he nor any family members had been associated or involved with any political groups or organisation. He also said neither he nor any family members were involved in activities or protests against the government. The applicant declared his religion as Catholic, his ethnicity as Kinh and his marital status as ‘never married’.
At a biodata interview with the Department on 13 July 2013, the applicant stated:
Life in Vietnam is very difficult. The applicant heard Australia was a better way of life, he came here to live better.
On 13 August 2013, the applicant submitted a written statement in connection to the arrival interview conducted on 12 May 2013, stating the following:
·     In Vietnam, the state government oppressed the applicant’s religious beliefs. His grandfather transferred the Catholics to his ‘existing place’ and set up a small parish. His grandfather was a political prisoner for 12 years. He was accused of disturbing and going against the State;
·     The applicant’s father was a catechist in Catholicism, so when he asked for approval of any official papers from the state, village or district authority governments he was rejected;
·     The applicant took part in the ‘An Ton’ youth group and the Teresa Association. When the children undertook performance activities, the local government arrested and beat them. The police did not allow them to participate in religious activities as they thought that the Catholics were anti-government;
·     The applicant learned through the newspaper and media that Australia is a country with happiness, no discrimination, no war, no religious obligations and a ‘high level’ of human rights, so he crossed the sea to Australia; and
·     If the applicant returns to Vietnam, as a Catholic, the government will oppress him or he may even have to go to jail. He has no human rights, therefore he is very worried.
Claims for protection on and after the date of application
As part of the applicant’s 1 August 2017 valid SHEV application, a statutory declaration signed by the applicant and dated 31 July 2017 was submitted. In summary. it stated:
·     The applicant’s grandfather set up a small parish in [location], [Commune 1], Do Luong, Nghe An Province and encouraged people to join Catholicism; he was the first person to introduce Catholicism to the area. His grandfather had previously worked for American people and this is how he knew about Catholicism. His grandfather was subsequently charged for working with American people as well as disturbing and going against the State. He was sent to a political prison for about 12 years;
·     The applicant’s father was also a Catholic teacher. He would teach Catholicism at home. When the police found out that his father was teaching Catholicism, they would often come and beat him in order to stop him from teaching;
·     In about 2010, the applicant became part of a [specified] church's youth group called Legio Mariae. The aim of Legio was to assist children who were abandoned. By around August 2010 Legio had about 40 members. As such, the government started to monitor them to ensure that the group did not continue to grow. The police would often intervene at the meetings, hitting them with their batons and asking them to move on. On many occasions, the applicant was hit by the police. This continued to occur until he fled Vietnam;
·     Sometimes when the applicant was coming home after attending a church service, he would be stopped, threatened and beaten by the police. The police would tell him that he should not be a member of the Legio Mariae group and that he should not be following Catholicism;
·     In about 2011, the applicant became part of another church youth group called An Ton Group. The aim of An Ton Group was to raise money to help the poor. Sometime in or about July 2011, he was attacked by the police and the donated money and presents in his possession were stolen by them;
·     In about 2012 the applicant became part of Teresa Association. In this association, he would talk to people who were not Catholic and encourage them to convert;
·     As the applicant has lived in Australia for a long period, he is scared that, if forced to return to Nghe An Province, the Vietnamese government will think he has been subjected to Western influence and is against the Vietnamese government. He is frightened that because of this he will be imprisoned; and
·     The applicant is scared he will be considered a traitor, as he would be returning as a failed asylum seeker. He has heard on the news that people who have returned to Vietnam as failed asylum seekers have been beaten and jailed for three years. He has also heard that people who have been returned to Vietnam as failed asylum seekers are detained at the airport, beaten and imprisoned.
In the applicant’s 2017 online application for a protection visa he added these additional claims regarding his political opinion:
·     The applicant fears that, as a failed asylum seeker and because he joined the Viet Tan Party and participated in political activities in Australia to oppose the Communist Party of Vietnam, back in Vietnam he will face harassment and interrogation. He will be arbitrarily put in prison for the crime of opposing the government;
·     The applicant experienced a lack of freedom and rules of law in Vietnam;
·     Authorities block access to websites to stop and remove content deemed to be political. Those who criticise the one-party regime face police intimidation, harassment, restricted movement, physical assault, detention, and arrest and imprisonment;
·     Police continue to detain political detainees for months without access to legal counsel and subject them to abusive interrogations; and
·     Party-controlled courts sentence bloggers and activists on bogus national security charges.
Evidence before the Tribunal
The applicant lodged a valid appeal of the delegate’s decision with the Tribunal on 22 April 2021 and attached a copy of the delegate’s notification letter and decision record.
The applicant attended a hearing with the Tribunal on 16 March 2023. The applicant was represented, and the hearing was conducted with the assistance of a Vietnamese interpreter. At the end of the hearing, the applicant was provided with an opportunity to provide further submissions post hearing.
On 22 March 2023, the Tribunal received the following documents from the applicant:
·     A supporting letter by [Brother A] (who could not attend the scheduled hearing as a witness) attesting to the applicant’s parish activities in 2011 in the [Parish 1] in Do Luong. It is dated 20 March 2023;
·     A supporting letter from [Reverend A], attesting to the applicant’s and his family’s involvement in the Association of St Anthony of Padua in the [Diocese 1] Diocese (with a translation). It is dated 20 March 2023;
·     A supporting letter from [Reverend B], parish Catholic priest for [Suburb 1] (in Melbourne), attesting to the applicant’s participation in a voluntary youth group at [Suburb 2] parish. It is dated 17 March 2023;
·     A supporting letter from [name], a member of Legio Mariae (Legion of Mary) in [Australia]. [This person] is a fellow Legionary at [Church 1] (in Melbourne), and attests to the applicant’s participation in the same spiritual organisation. The letter is dated 22 March 2023;
·     Photographs of the applicant attending a rally against the Vietnamese authorities in front of the Vietnamese embassy in Canberra in 2015, as well as protesters collecting signatures at the same event;
·     Photograph of the applicant at an Ton Youth Group (Assoc of St Anthony of Padua) event in 2011 in [Commune 1] in Nghe An;
·     Photograph from 2018 of the applicant involved in New Year Tet community activities.
·     Photographs of the applicant at Catholic events including the applicant: with [a bishop] at a 2016 event in [Melbourne]; at a parish working bee in [Suburb 2] in 2017; and at the Legion of Mary in [Church 1] in 2015 and 2016.
No further documents were received including right up to the time of making this decision.
There are no non-disclosure documents attached to either the Departmental or Tribunal’s file.
2014 data breach by the Department
On the departmental file is a copy of a letter from the Secretary of the Department of Immigration and Border Protection (now Home Affairs) addressed to the applicant. It is dated 12 March 2014.[1] Headed ‘Unauthorised access to personal information’, the letter outlines that there was unintentional access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible for a short period of time before it was removed from the Department’s website, and it was not visible as part of the report and not easily accessible. The letter goes on to inform the applicant that some of his personal information may have been accessed during that short time, and that the Department deeply regrets allowing potential unauthorised access to his personal information. The information may have included access to his name, date of birth, nationality, gender, details about his detention and if other family members were in detention. It did not include any information about addresses, phone numbers or information about claims for protection or health information. The Tribunal notes the applicant refused to sign the letter as acknowledgement.
[1] [File number].
The delegate’s decision record made a finding that the applicant was not subject to a data breach. The delegate reviewed the footage relating to nine Vietnamese men in an immigration detention centre that had been subject to a report by the Australian Rights Commission. The delegate did not place any weight on the applicant being subject to a data breach.
Country information: Vietnam
In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the latest DFAT report on Vietnam dated 11 January 2022 (the DFAT report), excerpts of which are included at Attachment A to this decision.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
On arrival the applicant did not submit any identity documents, claiming to have destroyed them while in transit to Australia as an irregular maritime arrival. The applicant then provided the name ‘[name variant]’. In his application for a SHEV, the applicant provided the name ‘[the applicant’s name]’, with the explanation that it was an oversight by the Australian officials at the time of arrival. The applicant has also provided a copy of his driver’s licence and a national identification card indicating his name was [the applicant’s name] and his nationality was Vietnamese.[2]
[2] [File numbers].

The Tribunal notes the delegate in the decision record accepted the applicant’s identity as reflected on his national identification card, that he was born in Vietnam to Vietnamese parents, and that his citizenship is Vietnamese, and that no information raised further concerns about him claiming a false identity. The delegate also made an assessment that s 91W of the Act does not apply.
Based on the overall evidence, the Tribunal finds the applicant’s identity is as outlined on his national identification card. Accordingly, the applicant is a citizen of Vietnam by virtue of being born in Vietnam to Vietnamese parents. The Tribunal is satisfied that Vietnam is the country of reference for the purposes of assessing the applicant's claims under ss 36(2)(a) and (aa).
Third county protection
On the evidence before it, the Tribunal is also satisfied that, for the purposes of s 36(3) of the Act, the applicant does not have a right to enter and reside in a third country.
Assessment of claims
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Overall, the Tribunal has found the applicant’s dispositive claims, especially about past incidents of harm arising from his religion and his participation with a proscribed political party to have been lacking overall credibility.
Accepted personal circumstances
Notwithstanding the Tribunal’s adverse credibility findings, the Tribunal accepts the following aspects about the applicant’s personal circumstances:
·     The applicant was born in Nghe An Province in [year], as claimed;
·     The applicant’s mother and father reside in [an address in] [Commune 1] Village in Do Luong district in Nghe An Province where they have leased a small holding for growing [produce];
·     The applicant has [specified family members], all of whom work and reside in Vietnam;
·     The applicant belongs to a Roman Catholic family and he was an active practising Catholic in his home parish in Nghe An Province;
·     The applicant is ethnically Kinh and speaks, reads and writes in the Vietnamese language;
·     The applicant completed secondary school and then undertook an apprenticeship in [occupation 1];
·     The applicant came from a low-income family, and he worked in [business 1s] and on his family’s farm before coming to Australia;
·     The applicant had worked on his family holding and as [an occupation 1], and in a family-owned [business 1];
·     In 2010-2011, the applicant worked in [Country 3] as [an occupation 1];
·     In Australia, the applicant has been working in the [specified industries]; and
·     The applicant has never married or lived in a de facto relationship, nor does he have any children or dependants, either in Vietnam or Australia.
The Tribunal further accepts, for the purposes of this decision, that the applicant’s home area is Nghe An province.
The applicant’s religion
The Tribunal has no reasons to doubt the religious identity of the applicant as a baptised and practising Roman Catholic, both in Vietnam and here in Australia. He has consistently claimed to belong to this Christian denomination since his arrival.
The Tribunal specifically accepts the applicant’s family also belonged to the same faith, as claimed. The Tribunal also accepts the third-party letters from co-congregants from Vietnam that the applicant was a parish member of the [Parish 1] in Do Luong district, and that he participated in catechism classes, fundraising and charitable works within his and other parishes. It also accepts that the applicant was a member of the St Anthony of Padua Association of the [Diocese 1] Diocese and ‘Teresa’ in Vietnam. It also accepts the applicant’s involvement in the Vietnamese Catholic community as outlined in third party letters to support this application, including the applicant’s activities in the local Legion of Mary group in [Church 1].
However, as outlined below, the Tribunal has made some adverse credibility findings about the applicant’s membership of the Legio Mariae in Vietnam.
Credibility concerns and findings: past harm incidents
Since 2017, the applicant has made a general claim that he departed Vietnam and arrived in Australia as an irregular maritime arrival due to a lack of religious freedom in his country of nationality.
However, this claim was undermined by the evidence in his arrival interview in May 2012. The applicant informed an Australian official that he was migrating to Australia because it was difficult in Vietnam and he was poor, and he was looking for something better and wanted to support his parents by working in Australia. He was asked several times whether he had any other reasons for leaving Vietnam and responded that the difficulty finding work in Vietnam was the only reason he departed.
Ordinarily, the Tribunal would not place much weight on the records from an arrival interview. However, on this occasion, the applicant had ample opportunity to outline at least some of his fears, given his later claims, which elaborate a number of detailed incidents involving physical maltreatment by the authorities motivated by hostility towards the applicant’s religion. Based on the discrepancy between his lack of any claims during the arrival interview and his subsequent claims about religious persecution, the applicant has invited the Tribunal to consider that the applicant’s past harm experiences are either embellished or lack overall credibility.
The Tribunal acknowledges the applicant provided a May 2013 statement to the Department about his fears of harm based on his religion, and that the communist government acted against members of the same organisation of which he was a member for participating in Catholic events. In particular, it states that the authorities would beat members of the An Ton Youth Group and Teresa Association. It does not make any claims that he, specifically, was harmed, although the applicant had the opportunity to do so. Had the applicant been personally targeted for harm, it was open for him to raise it. However, he did not, and this has further invited some credibility concerns, in the context of the Tribunal’s concerns about his initial interview on arrival, whereby the Tribunal has reasonable suspicions that the applicant had not received any physical harassment or maltreatment by the authorities, which he would later detail in his 2017 statutory declaration.
In the applicant’s 2017 statutory declaration, the applicant claimed his grandfather had been a pioneer in bringing Catholicism to his parish in Do Luong district and that his father was an active catechist (teacher of Catholic doctrine). The applicant added that his grandfather had worked for the Americans who introduced him to Catholicism. However, the Americans never occupied An Nghe Province. Situated substantially north of the 17th parallel, the province was part of communist North Vietnam after the French departed Vietnam in 1954. As the province was never part of South Vietnam, where the United States sent troops to defend it, the applicant’s claims do not align with the known and publicly available facts about the history of the province, as his grandfather would not have any regular contact with Americans of any faith. The Tribunal raised this concern with the applicant. The applicant said he had heard the Americans were there during the Vietnam war with the United States but was too young to know. He added that his grandfather spent 12 years in prison but he lived up to the age of 90, passing away when the applicant was very young. Had the applicant claimed his grandfather was influenced solely by French Catholic missionaries in the period leading up to 1954, this claim about his grandfather’s Catholic zeal would have a more credible basis. For these reasons, the applicant’s claims about his grandfather’s enthusiasm for Catholicism being influenced by Americans and his imprisonment for his religion are not accepted as genuine. In this regard, the applicant has further invited credibility concerns about past harm incidents.
The applicant also claimed that his father had been a catechist in the [Commune 1] parish and had been subject to beatings for his educative religious work as it went against the State, and that he had spent as much as 12 years in prison. The Tribunal notes that it in May 2013, the applicant’s claim was that it was his grandfather who was imprisoned for 12 years, and the applicant’s father, as a Catholic catechist in Catholicism, was often rejected by the authorities when he sought approval of any official papers. He did not mention any imprisonment or beatings. The applicant repeated the claim to have been beaten on as often as a monthly basis in the hearing, but did not mention imprisonment. The Tribunal has taken into account the written statement by [Brother A variant] that the applicant’s father was a catechist and accepts that is the case. However, given these discrepancies, and in the context of the credibility concerns mentioned above, the Tribunal has been invited to consider that his father, while a Catholic and a catechist, was not a catechist who had been subjected to any physical maltreatment or other arbitrary treatment or any bureaucratic interference by officials for the reasons claimed.
Another credibility concern arose about the applicant’s explanations as to why his father and other family members had not departed Vietnam. The Tribunal asked the applicant why his father had not departed Vietnam if he had endured the terrible treatment claimed. The applicant responded that his father could not afford to due to his large family. The Tribunal pointed out that many poor Vietnamese families have fled their country over the decades. The applicant responded that some were unlucky but tried to move to South Vietnam in 1954 and 1975. The Tribunal pointed out that the applicant was able to flee. The applicant said it was too dangerous for his father to flee in his time. The Tribunal asked why his father did not try to relocate within Vietnam or leave the country altogether in the period after 1975. The applicant said his father was getting too old, too poor, was too poorly educated and he stopped being a catechist. The Tribunal also pointed out that none of the applicant’s siblings have departed Vietnam, while many poor and lowly educated Vietnamese have departed, and this possibly indicates a lack of religious persecution towards him and his family while in Vietnam. The applicant added that his father, as a Catholic, can endure the persecution. Had the applicant’s family been suffering the levels of religious persecution claimed over such a prolonged period of time at the claimed frequency, it would be reasonable to expect his father or others to have fled their home area within Vietnam or to leave the country altogether. The Tribunal does not accept the applicant’s father was too old or poor or stubborn in the post-Vietnam war period to take himself or his family away from a place where monthly beatings would occur. Noting that the applicant originally claimed that he left because of financial hardship and not for any other reasons, the applicant’s explanations about his father’s lack of action in this regard invite further credibility concerns.
The Tribunal, in the context of the above-mentioned credibility concerns and findings, has considered the credibility of the applicant’s claims to have been a member of Legio Mariae in Vietnam and the incidents associated with it. Being a member of the Legio Mariae is a critical element of the applicant’s claims because there is some country information to indicate this religious confraternity has been and remains a proscribed organisation.[3] Other reports indicate that Legio Mariae is [details deleted] not proscribed as it is part of a registered religious organisation[4]. Another report in 2010 said that “the Legion of Mary has more than 100 thousand members and is distributed across 26 dioceses”,[5] indicating that it is not repressed in a manner typical of a proscribed organisation.
[3] The only source the Tribunal has found that the Legio Mariae is a proscribed organisation is a submission by Dr Peter Hansen, Lecturer, History of Church in Asia, Catholic Theological College, Melbourne, 2 September 2011.
[4] [Source deleted.]
[5] 'Vietnam, Legion of Mary, 62 years of serving the needy', Asia News IT, 23 August 2010, 20230116165754.
Firstly, in his arrival interview, the applicant only mentions his membership of An Ton (Assoc of St Anthony of Padua) and the Teresa Association. Membership of the Legio Mariae is first raised in 2017. Secondly, he does not mention any membership of Legio Mariae in the 2013 statement but again repeats his membership of An Ton Youth Group and the Teresa Association. Thirdly, in reviewing the supportive letters provided to the Tribunal as part of the post hearing submission, the two people claiming to be witnesses of the applicant’s religious upbringing and activities back in Vietnam do not mention any membership of, or activities with, Legio Mariae. While it is accepted the applicant has been an active member of one of the Australian chapters of the Legion of Mary since his arrival, the Tribunal only has the applicant’s written and oral evidence that he was a member of any chapter of the Legio Mariae in Vietnam, and the credibility of that evidence has been substantially undermined by the other credibility concerns raised in this decision. It follows from these credibility concerns that the applicant’s various claims of being targeted by the authorities due to his claimed membership of Legio Mariae may also lacked overall credibility. This includes his claims at the hearing: that he and other Legio members participated in provocative activities including the collection and burial of aborted foetuses or abandoned babies (vaguely raised in the hearing) and that they participated in prayer meetings condemning the confiscation of church land by corrupt and greedy officials; that there is a lack of general religious freedom in Vietnam; and about being surveilled and beaten or for participating in any of these or any other claimed activities with Legio Mariae or any other organisation.
There is also another credibility concern arising from the applicant’s oral evidence at the hearing that he departed Vietnam for [Country 3] and re-entered Vietnam without being apprehended, indicating that he was not a member of any proscribed organisation, including Legio Mariae, or that he was a person of interest for any of the reasons claimed.
As discussed in the scheduled hearing, the Tribunal also notes that the applicant was unable to substantiate any of the claims about Legio Mariae, including independent media reports in the Catholic media or bloggers or that he was formally arrested or summonsed. (The Tribunal only places marginal adverse credibility weight on these aspects of his claims.).
The applicant’s credibility is of central importance to the Tribunal’s determination of the applicant’s claims about past harm incidents relating to his religious activities. In this regard, the Tribunal has significant, numerous credibility concerns. They, when cumulatively considered, have invited the Tribunal to consider the applicant’s claims for protection based on his family’s background of maltreatment and imprisonment as lacking in overall credibility.
As such, the Tribunal does not accept the applicant’s grandfather was ever influenced by American Catholics or that he and the applicant’s father were Catholic leaders or catechists, or that they were either imprisoned or beaten or harassed by zealous communist officials, as inconsistently claimed in this matter.
The Tribunal’s credibility concerns, when cumulatively considered, extends to including the unsubstantiated claim by the applicant to be a member of the Legio Mariae in Vietnam, as lacking in overall credibility. It does not accept the adjacent claims that the applicant participated in any of the politically provocative or illegal activities mentioned or that he was harmed because of them. The Tribunal finds that the applicant advanced this membership claim and associated claims about past harm incidents solely to augment his otherwise weak claims about financial hardship that he provided in 2012.
Based on the same adverse credibility concerns, cumulatively considered, the Tribunal also does not accept the applicant’s claims about experiencing harassment or harm from Vietnamese officials based on his otherwise credible membership of the Teresa Association or the Association of St Anthony of Padua or any evangelical or charitable activities undertaken with those Catholic confraternities. This is because the applicant fabricated those past harm incidents.
Persecution or significant harm based on religion grounds
Notwithstanding the Tribunal’s adverse credibility findings about claimed past harm incidents, it accepts the applicant was a baptised and practising Catholic in Vietnam and has maintained his practice of Catholicism by participating in weekly Mass services and other outward signs of Catholic piety since arriving in Australia, as claimed. The Tribunal accepts that the applicant’s Catholic background is foundational for him holding some actual anti-government political opinions.
In relation to the applicant’s religious identity and practices as a Catholic, DFAT states that Vietnam is officially an atheist state. While Article 24 of the Constitution nevertheless guarantees a right to freedom of belief and religion, in practice, religious groups are required to register with the Government and the authorities place restrictions on the day-to-day activities of some believers. DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, but the situation differs from place to place. Those in large cities are particularly free to practise. Adherents associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.[6]
[6] DFAT Country Information Report, Vietnam, 11 January 2022, sections 3.13, 3.21-3.31.

DFAT comments that in-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations (which includes the applicant’s home province of Nghe An) and that, in general, Catholics in cities worship freely in churches and do not generally face societal discrimination. DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment.
The Tribunal is mindful that some young Catholics have been singled out for official harassment and persecution, including those: involved in anti-government demonstrations, particularly those related to land confiscation; who have entered into religious formation, such as seminarians; who have taught catechetics; who have been youth leaders or organisers; who have been on a parish council or other body relating to church finances or property; or who have belonged to an allegedly proscribed body, such as Legio Mariae. The Tribunal also accepts that church-state relations in Vietnam are worse in the Catholic dioceses of Hue and Vinh, which encompasses the applicant’s home province of Nghe An.[7]
[7] Submission by Dr Peter Hansen, Lecturer, History of Church in Asia, Catholic Theological College, Melbourne, 2 September 2011.
However, in the context of the Tribunal’s adverse credibility findings, it is not accepted that the applicant has ever fit into any of those higher risk categories, church roles or confraternities, or that he has ever been a person of interest for these reasons, or that he will be imputed as a Catholic typically targeted by the authorities because of poor church-state relationships, either in Nghe An province or throughout Vietnam in general.
Nor does the Tribunal accept the applicant has a real chance or a real risk of being imputed as a member of the Legio Mariae in Vietnam in the past based on the applicant’s activities in the Legion of Mary or any other Catholic association the applicant has been involved in since being in Australia, should he return to Vietnam into the foreseeable future.
Considering the available evidence, the Tribunal finds that the applicant as Catholic who is critical of the Vietnamese state for religious reasons only has a remote or far-fetched chance, and not a real or substantial chance, of facing serious harm, on return to Vietnam. This is based on the relevant country information and the Tribunal’s findings above that the applicant has not and would not engage in religiously motivated political activism on return. The Tribunal has had regard to the applicant returning to his home area of Nghe An province where clashes between Catholics and the authorities are more frequent than other parts of Vietnam. As the applicant is no more than an ordinary practising Catholic, the Tribunal finds the applicant will face a remote or far-fetched chance, but not a real or substantial chance, of serious harm based on his accepted religious involvement, should he return to his home area or Vietnam more generally, either on arrival or in the community.
Based on this ‘real chance’ assessment, the applicant accordingly does not hold a well-founded fear of facing serious harm based on his religion or another related reason mentioned in s 5J(1)(a), should he be removed from Australia to Vietnam, either now or into the reasonably foreseeable future.
The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.[8]
[8] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). The Court rejected the submission that ‘real risk’ was a higher threshold which required that the possibility of harm be more likely than not: per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s 36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
As the Tribunal has made a ‘real chance’ finding about the applicant’s fears of persecution on a religious basis, it follows that the applicant faces only a remote or far-fetched risk, but not a real or substantial risk, of significant harm in Vietnam. In this regard, the applicant does not meet the criteria under s 36(2)(aa).
Sur place activities – political opinion claims
The applicant has not claimed to be involved in any political organisations, clandestine or others, before arriving in Australia. He makes no mention of his or his family being involved in political movements within Vietnam during his initial interview on arrival or in his 2017 statement. The applicant first explicitly raised that he would face a real chance of serious harm, or a real risk of significant harm based on his anti-government political opinion, and specifically based on his membership of and activities with the Viet Tan, should he return to Vietnam into the reasonably foreseeable future, in the online application lodged in 2017.
Viet Tan or the Reform Party is a proscribed organisation in Vietnam as the authorities claim it wishes to overthrow the government.
The current DFAT Country Information Report on Vietnam indicates that Vietnam is a one-party communist state in which Communist Party of Vietnam or CPV members hold all senior government and military positions.[9] Opposition parties are effectively illegal and while some advocacy and activism for broader human rights issues take place, most public protest is about practical local issues, and threats to CPV legitimacy are seen as threats to the state and are not tolerated. DFAT comments that it is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
[9] DFAT Country Information Report, Vietnam, 11 January 2022, sections 2.28, 3.49, 3.57, 3.61-3.62 and 5.25-5.26.
DFAT indicates that the situation is the same for online activists and social media users. DFAT comments that low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but states sources told it this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined.
DFAT notes the Government imposes limits on entry and exit for political activists and Government critics and that this is achieved by refusing to issue passports or laying criminal charges to prevent travel. Vietnam has an exit control list (ECL), and criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam.
In its previous (December 2019) Country Information Report, DFAT noted that opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. DFAT commented that the Vietnam Reform Revolutionary Party (known as Viet Tan) is a US-based opposition group (also with an active branch in Australia) which advocates for democracy in Vietnam. It is considered a terrorist organisation by the Vietnam government. Members of 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. DFAT noted that in November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to 12 years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Saigon (Ho Chi Minh City) in January 2019 while he was meeting a Brotherhood of Democracy activist.[10]
[10] DFAT Country Information Report, Vietnam, 13 December 2019, sections 3.47 and 3.53.
The Viet Tan movement advocates for democracy in Vietnam and is active among the Vietnamese expatriate community in Australia.[11] It is noteworthy for this case that, in 2016, the Vietnamese government declared Viet Tan a terrorist organisation[12] and stated that anyone involved with the group would be considered an accomplice in terrorism.[13] The Vietnamese communist government pursues, in the words of an expert observer of Vietnamese politics and history, Dr Carlyle Thayer, a policy of, ‘Three Noes’ – no political opposition, no political pluralism, and no multi-party system.” [14]
[11] DFAT Country Information Report, Vietnam, 13 December 2019, p.25.
[12] Human Rights Watch, letter to Foreign Minister, Senator Marise Payne, dated 25 November 2019.
[13] Associated Press, “Vietnam declares San Jose-based Viet Tan a terrorist group” (7 October 2016).
[14] “The Future of Vietnamese Civil Society: An Interview with Carlyle Thayer”, Georgetown Journal of Asian Affairs (2019), Vol 5, 117–126, at 121.
The delegate’s decision record mentioned that the applicant presented no evidence to support his involvement or membership in Viet Tan or another political outfit. The applicant did not provide any evidence, including photographic evidence, or social media posts, that he is active in such political groups. Without any verifiable evidence, the delegate proceeded to make the finding that the applicant was not a member of the Viet Tan Party or participated in any sur place anti-government political activities or that he would be of interest to the authorities in Vietnam based on his political opinion, or that he would be considered anti-government.
At the scheduled hearing, the applicant was provided an opportunity to elaborate on this claim by first explaining what the Viet Tan Party is. The applicant claimed it was a political organisation that opposed the injustice and corruption in Vietnam. Many of them left the communist regime, which they oppose, and were in favour of a democratic constitution for that country. The Vietnamese government were afraid of the Viet Tan, he added, because the government is made up of hypocrites and feared the damage the proscribed party has done to the government’s international reputation and its history of religious persecution.
The applicant was asked how he became involved in the Viet Tan. The applicant said his involvement began after being released from immigration detention when he attended a 2015 demonstration on 30 April (the date commemorating the 1975 fall of Saigon). The applicant said he had photographs to substantiate the claim and that he would endeavour to access photographs of himself in Canberra from a friend.
The applicant explained that the 2015 protest was the last time he participated in any organised protest of any kind since his arrival in Australia.
The applicant admitted there was no online social media evidence of him participating in Viet Tan events or voluntary activities (which he said entailed preparing noodles).
The applicant also admitted he had not been a member of the Viet Tan Party. He said it was not easy to join as they ask challenging questions of prospective members.
The Tribunal asked how the authorities in his home country could became aware of his participation with Viet Tan without any social media profile. The applicant said they would once he became a formal member of the Viet Tan.
There is significant recent reporting of Vietnamese (including dual Vietnamese-Australian citizens) being arrested and sentenced to lengthy prison terms where their conduct was merely to peacefully oppose the Vietnamese communist regime, resulting in them being charged with engaging in and/or financing terrorist activities.[15] Anyone who does support, or who may be considered as supporting, Viet Tan’s aims of peaceful democratic reform, runs the risk of being accused by the Vietnamese communist regime of wanting to overthrow the state.[16]
[15] DFAT Country Information Report Vietnam, 13 December 2019, p.26.
[16] DFAT Country Information Report Vietnam, 13 December 2019, p.25.
In respect of the Vietnamese government’s surveillance of the activities of Vietnamese expatriates in Australia, it is probable that the Vietnamese government does monitor the public demonstrations of Vietnamese nationals in Australia and especially those who join Viet Tan to object to the communist party’s regime. There is certainly evidence of Vietnamese government apparatus (or its cyber-hacking agents) conducting cyber campaigns against dissidents.[17] The mission of Vietnamese embassies, including in Australia, is to track and surveil the activities of expatriate Vietnamese, both citizens and those who are of Vietnamese descent. Vietnamese pro-democracy activists, even when living abroad, have suffered from censorship and been the targets of cyberattacks.[18] In particular, the Vietnamese communist regime does not accept any criticisms, especially those that are made or transmitted by Vietnamese diaspora who are living abroad.[19]
[17] Amnesty USA, “Vietnamese activists targeted by notorious hacking group”, 23 February 2001,
[18] Freedom House, Freedom on the Net 2019: Vietnam, [accessed 21 November 2022].
[19] Thayer, Carlyle A., “Comments for the Australian Refugee Review Tribunal”, Johns Hopkins University Washington, D.C., 18 March 2005, quoted in RRT Country Research, Research Response VNM31954, 02 July 2007 at Q6.
However, the applicant has submitted very limited evidence of anti-government opinion being expressed in public and none through social media. The Tribunal accepts the applicant has attended at least one protest in Canberra in 2015 outside the Vietnamese embassy with the members of the Vietnamese Community in Victoria. He has not substantiated any further attendance of protests or provided third party statements about volunteering for or joining the Viet Tan. The Tribunal notes in the representative’s post hearing submission that there was a new president of the Viet Tan Party who is currently assessing the applicant’s membership and the applicant has spoken to other members of the same party willing to provide letters to attest to the applicant’s voluntary activities with the party, but he is yet to hear from them. After many months, neither the applicant nor anyone on his behalf has forwarded any additional information.
There is no evidence that the applicant has any social media profile that would draw adverse attention to the applicant’s political opinions, imputed or otherwise.
Taking into account the paucity of evidence regarding these sur place claims in the context of the overall adverse credibility finding above, the Tribunal does not accept the applicant was ever a member or an active volunteer of Viet Tan or any other political party or movement that is similarly proscribed by the Vietnamese Government.
The Tribunal nevertheless accepts the applicant does hold anti-government political opinion and it accepts he protested in 2015 outside the Vietnamese embassy in Canberra in 2015 with the members of the Victorian Branch of the Vietnamese Community in Australia, whose members share similar anti-government political opinions as the applicant, but this is not a proscribed organisation.

100. The Tribunal does not discount the strong probability that the authorities surveilled the April 2015 demonstration that the applicant participated in, and that the applicant’s image was recorded by them. DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose. Those who use their time overseas to publicly oppose the government, or who are wanted for similar actions domestically, would be subject to further interrogation, harassment and violence.
101. The Tribunal, however, does not accept the applicant’s tepid history of participation in a protest amounts to the applicant having actual or imputed Viet Tan membership, even if the government is able to link his image and his identity to the 2015 protest. While low-level protesters against the government face a modest risk of harassment in Vietnam, the applicant’s sur place activities are so shallow and so fleeting that the risk of his low-level protesting in 2015 in Australia attaches to it only a far-fetched or remote chance of being imputed with Viet Tan membership or another similar association, or as someone who has used his time to publicly oppose the government over a sustained period, or who is a person of interest based on activities prior to his departure, should he return to Vietnam.
102. There is insufficient evidence for the Tribunal to be satisfied that the applicant is a member of Viet Tan or any other pro-democratic organisation, proscribed or otherwise. There are no substantial reasons for the Tribunal to accept authorities will consider the applicant an active organiser of protester who openly and regularly criticises the state or who is a person of interest. Neither is it satisfied the applicant faces a real chance of serious harm on the basis on being imputed with holding membership to Viet Tan or similar organisations or that he will be imputed with having anti-political involvement in Australia arising from his Catholic religion or as a failed asylum seeker or for a combination of these reasons.
103. The Tribunal acknowledges that there was a 2014 data breach in relation to the applicant while he was in immigration detention. It accepts there is a real chance that the authorities had access to the data that arose from that breach, including the applicant’s name, nationality, date of birth and place of detention. However, details about specific claims or claimed activities against the Vietnamese government were not disclosed in the breach. As a failed asylum seeker, the authorities will be aware that the applicant applied for asylum in Australia but not the reasons for it. Taking this into account, the Tribunal does not accept the data breach will heighten the chance of serious harm to the applicant as a failed asylum seeker or based on the applicant’s political opinion or for a combination of these two reasons.
104. The Tribunal is not satisfied that the applicant has presented credible or persuasive evidence that he is an actual member or a supporter of Viet Tan or any other proscribed anti-government organisation. He does not hold any formal membership; no third-party statements were provided to support this; and there are no social media posts to support such associations. Neither is the Tribunal 29 satisfied that the applicant will be active in the future or be involved in any proscribed anti-government memberships in Vietnam, either in social media, in public or clandestinely, should he be returned, voluntarily or otherwise, to his country of nationality.

105. The Tribunal, as mentioned above, accepts the applicant holds some actual anti-government political opinions. The country information states that the possibility of a low-level activist being arrested cannot be discounted.
106. Taking all the evidence about the applicant’s evidence concerning his political opinions and his status as a failed asylum seeker, the Tribunal accepts that there is a chance of serious harm or a risk of significant harm as someone who will be imputed with membership of Viet Tan or another anti-government organisation and because of his actual personally held anti-government political opinions, should he return to Vietnam into the reasonably foreseeable future. That is because the Tribunal accepts there is surveillance of attendees by members of the Vietnam government’s diplomatic missions in Australia. However, the Tribunal assesses that the applicant is no more than a very low-level and unthreatening protester who will not be sufficiently conspicuous to raise the ire of the authorities in Vietnam whereby there will be a real chance or real risk of being assessed as hostile to the CPV’s monopoly on political power, either on arrival or in the community. Therefore, the Tribunal finds that the applicant will face only a remote or far-fetched chance, and not a real or substantial chance, of official surveillance or harassment, preventative detention, significant physical assault, medium to long term imprisonment while being arrested or prosecuted, or being sentenced to imprisonment, or any other form of serious harm that would satisfy ss 5J(4) or 5J(5), for these political opinion reasons.
107. For the reasons outlined above, the Tribunal accordingly finds that the applicant does not have a well-founded fear of persecution based on his political opinions, imputed and actual, or anti-government political memberships and associations that would lead to the adverse attention of the Vietnamese authorities or for any related reasons mentioned under s 5J(1)(a), either on arrival as a failed asylum seeker or returning voluntarily in the general Vietnamese community, should he return to Vietnam into the reasonably foreseeable future.
108. Pursuant to MIAC v SZQRB (2013) 210 FCR 505 (referred to earlier), it follows that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, has only a remote or far-fetched risk, but not a real or substantial risk, of capital punishment, torture, arbitrary deprivation on his life, cruel or inhuman treatment or punishment, or any other significant harm listed in s 36(2A), based on his political opinion, imputed or otherwise. In this regard, the applicant does not meet the criteria under s 36(2)(aa).
Cumulative findings
109. The applicant has not advanced any further arguments that he faces a real chance of serious harm arising from his race or nationality or for any other reason related to s 5J(1)(a) not already addressed in the above findings, regarding his mental or physical health, or any further fears under the Act’s complementary protection provisions. There are no more residual claims to consider in this review application.
110. As held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, the Tribunal observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish those facts. The Full Federal Court held, at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

111. The Tribunal is satisfied that there are no more residual claims to consider.
112. In considering the applicant’s written and oral claims for protection, both individually and cumulatively, it is the assessment of the Tribunal that the applicant does not face a real chance of serious harm based on his political opinion, his religion, his race, his nationality or any memberships of particular social groups or for a combination of any of these reasons mentioned in s 5J(1)(a) or for any other reasons, now and into the reasonably foreseeable future.

The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1)(a),(b) or (c), if he is returned to Vietnam. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a).

114. Having assessed all the applicant’s claims, individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of his life, or the death penalty will be carried out on him, or he will be subject to torture, cruel or inhuman treatment or punishment or degrading treating or punishment, pursuant to s 36(2)(aa) of the Act.
Conclusion
115. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION

118. The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member

ATTACHMENT A
DFAT COUNTRY INFORMATION REPORT VIETNAM 11 JANUARY 2022
RECENT HISTORY
2.1 Vietnam officially gained independence from France in the mid-1950s following the first Indochina War. In 1954, the country was divided into two: the northern Democratic Republic of Vietnam (North Vietnam) and the southern Republic of Vietnam (South Vietnam). At the height of Cold War tensions, the two sides entered what is commonly called the ‘Vietnam War’ in English and ‘the American War’ or ‘Second Indochina War’ in Vietnamese. The war ended in April 1975 when communist forces captured the presidential palace in the southern capital of Saigon (now named Ho Chi Minh City (HCMC)) and reunified North and South Vietnam as the Socialist Republic of Vietnam. The conflict produced significant numbers of refugees who migrated to different countries around the world, including Australia, where they established diaspora communities.
2.2 Vietnam and China engaged in border clashes in the years immediately after the Vietnam War. Vietnam invaded Cambodia in 1978 and Cambodia’s ally, China, responded with attacks against several northern provinces of Vietnam. This resulted in a mass-exodus of ethnic Chinese from Vietnam in the late 1970s.
2.3 The planned economy stagnated in the first decade of reunification. A series of reforms beginning in 1986 opened the country to foreign investment and achieved enormous economic growth. Vietnam then joined the Association of Southeast Asian Nations (ASEAN) and the World Trade Organization. With economic liberalisation came significant improvements to human development indicators such as health, education and poverty rates, but the Communist Party of Vietnam (CPV) maintains tight political control and the space for political dissent remains limited.
DEMOGRAPHY
2.4 Vietnam’s population is about 100 million people. It is a young, largely rural population with about 7 per cent of people older than 65 years and 38 per cent of people living in urban areas. The two largest cities are HCMC with 8.8 million people, and the capital Hanoi with 4.8 million people. The Vietnamese language, based on the Hanoi dialect, is widely spoken throughout the country. For ethnic demography, see Race/Nationality. For religious demography, see Religion.
ECONOMIC OVERVIEW
2.5 According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanisation………………….
POLITICAL SYSTEM
2.28 Vietnam is a one-party communist state. Communist Party of Vietnam (CPV) members hold all senior government and military positions. The National Congress is the CPV’s largest national decision making body. It meets every five years. The most recent Congress was in January/February 2021 and comprised 1,600 delegates. These delegates elected the 200-member Central Committee (the second highest decision-making body that meets twice a year) which, in turn, elected the (currently) 18-member Politburo, Vietnam’s most powerful decision-making body.
2.29 The General Secretary of the CPV, State President, Prime Minister and Chair of the National Assembly (the national parliament) are key figures of political power. Elections are held for the National Assembly, most recently in May 2021. Ninety-two per cent of candidates in the National Assembly are members of the CPV. Real political power is held in CPV structures rather than the National Assembly.
2.30   Vietnam is politically organised into 58 provinces and 5 municipalities (Hanoi, Haiphong, Da Nang, Ho Chi Minh City and Can Tho). Further subdivisions are districts and communes, which are the smallest level of government that exist in both rural and urban areas.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.49   Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52   The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring .
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54   Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56   Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example, by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.

ATTACHMENT B
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.
…

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Immigration

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Citations

2105137 (Refugee) [2024] AATA 1028

Cases Citing This Decision

Cases Cited

Statutory Material Cited

MICMSMA v CBW20 [2021] FCAFC 63

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179