2113047 (Refugee)
[2025] ARTA 1431
•28 March 2025
2113047 (REFUGEE) [2025] ARTA 1431 (28 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Kate Hoang
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2113047
Tribunal:General Member K McGrath
Date:28 March 2025
Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 28 March 2025 at 2:56pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – religion – Catholic – political opinion – a formal member of Viet Tan – involvement in Viet Tan’s activities and human rights activism – political opinion opposed to the CVP – effective state protection is not available – applicant has a well-founded fear of persecution for reason of her political opinion – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Act), ss 5, 36, 65, 499
Migration Regulations 1994(Act), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 September 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant, who claims to be a national of Vietnam, applied for the visa on 21 April 2020. The delegate refused to grant the visa on the basis that country information did not suggest a real chance of serious or significant harm in the applicant’s circumstances.
3. The applicant appeared before the Tribunal in person on 28 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by video-link.
BACKGROUND
5. The applicant was born in Nghe An, Vietnam on [date]. She arrived in Australia on [date] November 2015 on a [student] visa. She has not returned to Vietnam since this time.
6. The applicant married her husband, Mr [A], [in] May 2018 in Australia. She has two children with her [husband].
7. The applicant applied for subclass 500 student visa prior to the expiration of her first Australian visa. On 3 April 2019, she was granted that visa, which was valid until 12 May 2021.
Evidence before the Department
8. On 21 April 2020, the applicant applied for a protection visa. Her husband and children were not included as applicants on that visa application.
9. The applicant’s protection visa application can be taken to set out that:
a.since she was a young student, the applicant held a political opinion that was opposed to the Vietnamese Communist Party (hereafter CPV) and in support of human rights, democracy and freedom of speech,
b.she expressed these views on “many occasions” while in Vietnam,
c.her family’s weekly Catholic religious activities were monitored by the Vietnamese authorities,
d.she was taken away and held by the authorities, banned from school and she and her family were being targeted for financial extortion by the authorities due to her political and religious activities,
e.while in Australia, the applicant supported the Viet Tan party as well as expressed her political opinions on [social media], and
f.the applicant feared that she would be arrested, jailed and mistreated by the Vietnamese government because of her political views and activities on return to Vietnam.
Extracts of the applicant’s passport were submitted to the Department of Home Affairs (‘Department’).
The applicant was not invited to an interview by the Department in relation to this application.
The delegate refused to grant the applicant a protection visa. Broadly, the delegate found that country information indicated that the applicant would not face a real chance of serious harm or real risk of significant harm on the basis of her claims, as made, considered individually and cumulatively. The delegate considered this in relation to the applicant’s claimed political activities in Vietnam and Australia, her online activity in Australia and her Catholic religion.
The delegate was of the view that the applicant was not a high-profile political activist or active organiser or dissident and that the applicant was not of adverse interest to the authorities prior to leaving Vietnam. The delegate also found that the applicant did not come to the attention of, or rise to a sufficient profile, to be of adverse interest to, the Vietnamese authorities on the basis of her online activity or her other political activities in Australia.
Evidence before the Tribunal
The applicant applied to this Tribunal on 27 September 2021.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
Statutory declaration
The applicant provided a statutory declaration to the Tribunal dated 21 January 2025. That statutory declaration states that the applicant participated in prayer services in Vietnam in September and October 2011 in solidarity with [young] Catholics who were arrested by the Vietnamese authorities. It does not set out any further political activities by the applicant while in Vietnam nor any harm experienced in Vietnam.
In relation to her support for, and membership of, Viet Tan, the applicant’s statutory declaration builds on her protection visa application and provides further detail. It sets out that the applicant has publicly supported Viet Tan since 2017, having learnt more about Viet Tan through her husband, who was involved with the party. Her involvement included regularly taking “part in their activities such as selling pho beef noodle soup, organizing [sic] cultural events, and participating in fundraising efforts to support the organization’s [sic] work and financially support prisoners of conscience in Vietnam”.
The statutory declaration continues that the applicant became a formal member of Viet Tan [in] October 2024. The declaration sets out the applicant’s knowledge of Viet Tan and why she joined Viet Tan. It sets out information in relation to 16 Viet Tan protests, public events or meetings with high profile Viet Tan members attended by the applicant. These include:
a.meeting [Mr B], [Position 1] of Viet Tan Australia;
b.participating in a Viet Tan Brisbane meeting attended by Chau Van Kham, after he was released from detention in Vietnam;
c.attending the Viet Tan national congress in Sydney and there meeting [Mr D], [Position 2] of Viet Tan; and
d.being [at an] Viet Tan annual fundraiser in August 2024.
In relation to each event, the applicant describes in her statutory declaration the nature of the event and her involvement.
The statutory declaration also sets out that the applicant has helped to organise Memorial Day for Viet Tan’s leaders and members every August from 2018 until 2024. It states that “since 2018, I have been part of the Viet Tan fundraising team in Brisbane, frequently attending and helping to organize fundraising events.”
The declaration confirms her support for human rights and democracy. It sets out that, on return to Vietnam, the applicant fears arrest from the airport and long-term detention due to involvement in Viet Tan’s activities and human rights activism.
In relation to her online activities, the applicant’s statutory declaration sets out that [social media] has become “one of my key platforms to express support for the Viet Tan mission and to advocate for human rights on a broader scale”. The applicant describes that she is part of Viet Tan’s propaganda team, with her role being to “find information from reliable sources on the internet, write articles and repost on Viet Tan’s page. I also have to share Viet Tan’s [social media] to promote their objectives and information to wider audiences, especially those in Vietnam”.
Supporting evidence received prior to hearing
The applicant also provided photographs of her political involvement prior to the hearing. These captured the vast majority of the events described in her statutory declaration. Many of the photos clearly showed the applicant and the nature of the event (for example, through the capturing of banners, posters as well as Viet Tan and/or South Vietnamese flags). The photographs also show an additional meeting of the applicant with [Mr B], the [Position 1] of Viet Tan Australia. This meeting was at the Viet Tan national congress in Sydney.
Prior to the hearing, a letter was provided by the witness, [Mr F], [of] Viet Tan’s Queensland Chapter. [Mr F] provided a detailed letter setting out the applicant’s participation in 6 protests from 2017 to 2024, that she was invited to become a pre-member of Viet Tan in 2022 and became an active member [in] October 2024. The letter sets out that the applicant helped to organise Memorial Day every year from 2018 until 2024, had been in the fundraising team of Viet Tan in Brisbane since 2018 and often attended and helped to organise fundraising events. The letter sets out that the applicant had been “instrumental in raising funds for our organization [sic] and “actively involved in administering out [social media] Group, Viet Tan Australia, to promote The [sic] Justice, Human Rights and Democracy” since 2022. The letter sets out that the applicant has been involved in most of the events organised by the Viet Tan Queensland Chapter and actively participated in internal activities including regular monthly meetings and special training courses.
Prior to the hearing, the applicant also provided a number of screen shots from [social media]. In relation to Viet Tan [social media] pages, the applicant’s photograph was clearly identifiable in three posts: [details deleted].
In addition, the Tribunal was provided with the following prior to the hearing;
· A Photo Evidence Booklet dated 21 November 2024 including family identification documents, a support letter and other documents referred to above;
· A further compilation of evidence received on 22 January 2025 including a letter from the witness [Mr F] in relation to political activities of the applicant’s husband, various photographs of the applicant’s husband’s political activities in Australia and other documents referred to above;
· A bundle of media articles received on 24 November 2025 (and also on 28 January 2025) labelled ‘Arrest of Viet Tan Members’; and
· A media article and letter confirming the role of the witness, Mr [F], within Viet Tan received on 28 and 29 November,
Prior to the hearing, the Tribunal reviewed the [social media] page of [Ms G]. The Tribunal noted that the photograph of [Ms G] was consistent with that on the applicant’s passport and that the name in the ‘about’ tab of the profile was that of the applicant. The date of birth was similar, but not the same being [date], rather than [date], as on the applicant’s passport.
The Tribunal observed 17 posts with overtly political content from 24 January 2023 until 20 January 2025, almost all of which were directly linked to Viet Tan. The Tribunal also viewed the [social media] page of “[deleted]”, which had [number] followers.
Oral evidence was given by the applicant in person at the hearing. During the hearing, the applicant maintained her claims of her political and online activities in Australia. She departed from most of her claims of political activities within Vietnam.
During the hearing, the applicant also gave direct evidence of her [social media] profile. The applicant was able to show the [Ms G] [social media] page directly on her device and that this page had over 1000 followers. She also showed that she [deleted] to the Viet Tan [social media] page.
The applicant’s witness, [Mr F], gave evidence at the hearing in person. He was not present in the hearing room when the applicant gave her evidence.
Subsequent to the hearing, the applicant provided a screen shot of a [social media] post written by the written by the applicant and described by her during the hearing. The post was on [a social media] page. It was [deleted] and shows that the post is “posted by [Ms G]”. The post is dated 20 January.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
ANALYSIS, REASONS AND FINDINGS
Receiving country
The Tribunal finds that the applicant is a national of Vietnam as the applicant has provided a copy of her Vietnamese passport, has consistently maintained that she is a national of Vietnam and there is no evidence before the Tribunal that suggests that she may not be a national of Vietnam. Accordingly, the Tribunal will assess this application with reference to Vietnam as both the country of the applicant’s nationality and the receiving country.
Political activities in Vietnam
The issue in this case is whether the applicant holds an actual and/or imputed political opinion that would expose her to a real chance of serious or significant harm on return to Vietnam. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The applicant’s protection visa application sets out that, while in Vietnam, the applicant held a political opinion that was opposed to the CVP and in support of human rights, democracy and freedom of speech. The application further sets out that she had expressed those views on “many occasions” and came to the adverse attention of the authorities while in Vietnam and suffered harm on this basis.
In contrast, her statutory declaration states that the applicant participated in prayer services in Vietnam in September and October 2011 in solidarity with [young] Catholics who were arrested by the Vietnamese authorities. It does not set out any further political activities by the applicant while in Vietnam nor any harm experienced in Vietnam.
During the hearing, the applicant gave evidence consistent with that in her statutory declaration in relation to her participation in prayer services.
The applicant was clear that the information contained in her protection visa application about her political activities while in Vietnam and harm that she experienced in Vietnam were not correct. She explained that she had paid a person who purported to be a Migration Agent to prepare that application. She said that she told the person about participating in the prayer services. She did not provide any further information about political activities or harm in Vietnam. She was not given an opportunity to review the protection visa application before it was submitted. The Tribunal accepts the applicant’s explanation.
The Tribunal finds that the applicant participated in prayer services in solidarity with arrested Catholics in September and October 2011 in [Vietnam] as the applicant was consistent in relation to this in both her statutory declaration and in the hearing and because her account is consistent with country information[1].
[1] ‘Viet Nam: Release 13 activists jailed on baseless charges, stop crackdown on dissidents’, Amnesty International, 13 January 2013). < Viet Nam: Release 13 activists jailed on baseless charges, stop crackdown on dissidents - Amnesty International >.
The Tribunal finds that the applicant participated in no further political activities while in Vietnam and did not experience harm due to political activities while in Vietnam as the applicant has unambiguously departed from those claims.
Political activities in Australia – support for, and membership of, Viet Tan
The Tribunal found the applicant’s evidence during the hearing about her support for, and membership of, Viet Tan to be credible and persuasive. It was consistent with her protection visa application, statutory declaration, the detailed letter from [Mr F] and the many annotated photographs provided prior to the hearing.
It was also consistent with country information. The applicant’s evidence about Viet Tan’s formation and beliefs is consistent with country information. The applicant correctly identified Viet Tan’s founder as Hoang Co Minh[2] and that the organisation is based in the United States[3]. She accurately described that the objective of Viet Tan was to remove the regime in Vietnam and renew the country[4]. Similarly, the applicant’s description of the significance of April 30 for Viet Tan is consistent with country information[5].
[2] ‘Reasons for the Public Introduction of Viet Tan’, Viet Tan, 5 November 2004. < .
[3] ‘Vietnam declares US-based activist group is a terrorist organization, The Guardian, 8 October 2016. <
[4] Introduction, Viet Tan, undated. < >.
[5] ‘April 30, 2005: Remembering the Past, Shaping the Future’, Viet Tan, 13 April 2005.
This consistency extended to knowledge that could be expected of a person with the applicant’s claimed level of involvement and support for Viet Tan. For example, the applicant described that she used the Signal application to communicate with Viet Tan members. Country information confirms use of this application within Viet Tan[6]. She also stated that the Brisbane branch of Viet Tan had 2-3 treasurers. This evidence was confirmed by the applicant’s witness, who did not have the benefit of observing the applicant’s evidence. During the hearing, the applicant spontaneously and accurately provided the names of [deleted] of Viet Tan (as above) and the Australian citizen who had recently been detained in Vietnam on the basis of claimed involvement with Viet Tan[7]. She also provided the name of another human rights activist who had been targeted in Vietnam. Finally, the applicant described raising funds for prisoners of conscious in Vietnam. When asked what the money contributed to specifically, she explained that the priority was to support prisoners of conscious and the families of those prisoners but that how exactly that happened was “only for people back home to know” and that “I am just a normal member, so I am not privileged to have that information”. This applicant’s evidence about her political involvement appeared to be being provided spontaneously, in the sense that it did not appear rehearsed or researched for the purpose of the hearing but as if it was being drawn from the applicant’s genuine experience and knowledge.
[6]‘Protect the Open Technology Fund’, Viet Tan, June 23, 2020.
[7] ‘Retired Sydney baker Chau Van Kham freed from Vietnamese prison, returns to Australia’, Amnesty International, 11 July 2023. <
The Tribunal also noted that the applicant was able to use language flexibly and accurately, rather than just repeating the same words that had been set out in her recently signed statutory declaration. For example, during the hearing, the applicant described her first Viet Tan activity, which was participation in a protest in Canberra on 30 April 2017 for the ‘Day of National Hatred’. In her statutory declaration, she used different wording stating that she attended the Fall of Saigon Memorial Day in Canberra on 30 April 2017 “to honour the sacrifices made by Vietnamese people who fled persecution and to remind the world of the ongoing struggles for freedom in Vietnam”. Both are accurate but different descriptions of the significance of 30 April for members of Viet Tan[8].
[8] April 30, 2005: Remembering the Past, Shaping the Future’, Viet Tan, 13 April 2005. ’47 years on: Rejection of Vietnam’s southern liberation history denounced vehemently’, The Voices of Vietnam, 30 April 2022. <47 years on: Rejection of Vietnam’s southern liberation history denounced vehemently>.
The Tribunal is not of the view that the applicant’s claimed support for, and membership of, Viet Tan is a new claim as it was raised at the earliest opportunity, in the applicant’s protection visa application, and then expanded on before the Tribunal.
The Tribunal found the evidence of the witness to be credible and to support the applicant’s claims of support for, and membership of, Viet Tan. The Tribunal accepts that Mr [F] is [a member] of Viet Tan’s Queensland Chapter. The Tribunal makes this finding on the basis of citing [Mr F]’s passport and comparing his passport and physical presentation with an article with his photograph as a member of a national delegation of Viet Tan [members] to Canberra. The Tribunal’s finding is also based on [Mr F]’s own evidence as well as a signed letter on letterhead of [Position 1] of the Australian chapter of Viet Tan, confirming [Mr F]’s role.
The Tribunal finds that:
a.the applicant holds a political opinion opposed to the CVP and in support of human rights, democracy and freedom of speech,
b.she has been a supporter of Viet Tan in Australia since 2017,
c.she has attended more than 16 protests, public events associated with Viet Tan or meetings with high profile Viet Tan members since 2017 including attending the Viet Tan national congress in Sydney, twice meeting [Mr B], the [Position 1] of Viet Tan Australia, meeting [Mr D], the [Position 2] of Viet Tan, participating in a Viet Tan Brisbane meeting attended by Chau Van Kham after he was released from detention in Vietnam and being [at an] an annual fundraising event,
d.she has regularly attended meetings, events and trainings of Viet Tan,
e.from 2018 to 2024, she held a fundraising role within Viet Tan’s Queensland chapter, attending and helping to organise fundraising and events, including Memorial Day annually,
f.she became a formal member of Viet Tan [in] October 2024,
g.the applicant has participated in these activities due to her political opinion and not for the sole reason of strengthening her protection visa application,
h.the applicant has a subjective fear of harm on return to Vietnam on the basis of her political opinion,
i.that the applicant would return to her place of birth and only place of residence in Vietnam, Nghe An Province, should she return to Vietnam; and
j.the applicant would express her political opinion on return to Vietnam.
Political activities in Australia – Online activism
Again, the Tribunal finds the applicant’s evidence as to her online activism to be credible and persuasive. It was internally consistent and supported by publicly available information on [social media] that was reviewed on [social media] by the Tribunal. The Tribunal was particularly persuaded by the applicant’s willingness to display her [social media] profile during the hearing and that that profile showed that the applicant [deleted] to the Viet Tan Australia [social media] page.
The Tribunal finds that:
a.The “[Ms G]” [social media] page is the applicant’s personal [social media] page,
b.That the applicant is personally identifiable on that page,
c.The page has over [number] followers,
d.The page contains [posts] with overtly political content from 24 January 2023 until 20 January 2025, almost all of which are directly linked to Viet Tan,
e.That the applicant is [a member] of the Viet Tan Australia [social media] [page], which has over 60,000 followers,
f.The applicant has posted political content to the Viet Tan Australia [social media] [page]; and
g.That the applicant is personally identifiable in at least three photos on [social media] profiles associated with Viet Tan.
The applicant’s Catholic religion and her husband’s political activities in Australia
It has not been necessary for the Tribunal to make findings in relation to the applicant’s claims based on her Catholic religion or her husband’s political activities.
COUNTRY INFORMATION
Credible and up to date country information confirms that those who hold and express a political opinion that is opposed to the Vietnamese government face harm in Vietnam. The ruling Communist Party of Vietnam (CPV) is the “sole legal political entity” in the country. No other political entity can operate and criticism of the CPV, or of government policies, is not tolerated. The law criminalises dissent, with national security provisions criminalising joining an organisation that acts against the government, making, storing or spreading information for the purpose of opposing the state and abusing democratic freedom to infringe on the interest of the State[9]. Increasingly, those perceived as being opposed to the Vietnamese government are being targeted and imprisoned by the Vietnamese government on this basis[10].
[9] 'DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025 at 3.66 – 3.77.
[10] Freedom House: Freedom in the World 2024 - Vietnam, 2024The risk for those associated with the Viet Tan is even more pronounced as the CPV has prescribed Viet Tan as a terrorist organisation. DFAT summarises that;
“The CPV considers the Viet Tan a threat to its legitimacy and rule…[and] considers anybody who participates in the Viet Tan or who lures or incites others to participate in the Viet Tan; sponsors or receives sponsorship from the Viet Tan; attends training courses organised by the Viet Tan; or places themselves at the Viet Tan’s direction to be an accomplice and sponsor of terrorism. In-country sources said that, given its terrorist designation, anybody suspected of belonging to the Viet Tan would face a high risk of arrest. According to in-country sources, a Vietnamese citizen abroad with an established pattern of behaviour posting online material supportive of the Viet Tan would likely be questioned on return, should their online activity become known to the authorities….
3.86 DFAT assesses a known or suspected member of the Viet Tan, as a proscribed terrorist organisation, would face a high risk of official discrimination in the form of arrest and imprisonment, including on terrorism charges, in Vietnam. As noted under Political Opinion, people with actual or imputed links to illegal political or dissident groups like the Viet Tan face a high risk of harassment, including in the form of surveillance, and interrogation, arrest, prosecution and imprisonment on national security grounds[11].
[11] 'DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025
Country information also confirms that the Vietnamese government undertakes extensive in person and online surveillance of anti-government, and specifically Viet Tan activities, outside of Vietnam. In person, informants within the diaspora monitor those who are critical of the Vietnamese government, in particular, those who are prominent, high profile or have a significant online following in Vietnam[12].
[12] 'DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025 at 3.70
Online, the CPV’s surveillance is sophisticated and extensive. The law requires social media platforms to retain user data, store it within Vietnam and make it available on request[13]. Reputable sources report that a unit of 10,000 ‘cyber-soldiers’ monitors political content posted online. Similarly, cyber groups suspected of being linked to the Vietnamese government utilise malware to target perceived opponents and activists, including those abroad, with malware. These groups create false profiles that interact with and gather intelligence from those perceived as opposing the Vietnamese government. They also seek to persuade these perceived opponents to download apps that allows (unbeknownst to the opponent) for broad surveillance of their devices. Finally, they capture browser information and compromise devices of those seeking to access websites of a political nature[14].
[13] UK Home Office: Country Policy and Information Note Vietnam: Opposition to the State [Version 4.0], August 2023[14] UK Home Office: Country Policy and Information Note Vietnam: Opposition to the State [Version 4.0], August 2023
Does the applicant satisfy the refugee criterion for protection?
The Tribunal finds that the applicant’s political activities in Australia will have come to the attention of the Vietnamese authorities through this extensive monitoring. As set out above, the applicant is an official member of Viet Tan, a prescribed terrorist organisation in Vietnam. She has attended a number of protests and public events of Viet Tan including, notably, the Viet Tan national congress in Sydney. She has also met with high profile members of Viet Tan including the [Position 1] of Viet Tan Australia, the [Position 2] of Viet Tan and Chau Van Kham, who was detained in Vietnam on the basis of membership of Viet Tan. In addition, the applicant is [a member] of, and has posted directly to, Viet Tan Australia [social media] page, which has over 60,000 followers.
The country information outlined above demonstrates that the Vietnamese authorities will have access to that [social media] page, its content and its administrators and will have had informants monitoring high profile events such as the national congress as well as high profile Viet Tan members and leaders as set out above. The Tribunal finds that the applicant’s political activities will be known to the Vietnamese authorities on this basis.
Further, the Tribunal is satisfied that there is a real chance, as required by s5J of the Act, that the applicant will be subjected to harm in the form of arrest, interrogation, and imprisonment in the reasonably foreseeable future on return to Vietnam on the basis of these activities, given the country information set out above.
The Tribunal is satisfied that arrest, interrogation and imprisonment on political grounds in Vietnam constitutes serious harm as required by s5J(5) of the Act, representing both a threat to the applicant’s liberty as well as significant physical ill-treatment. Conditions for those detained due to their political opinion in Vietnam face ill-treatment such as solitary confinement, forced psychiatric treatment, threats, beatings, contaminated food and water, deliberate exposure to cold or to loud noise, hard labour and denial of medical treatment[15].
[15] 'DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025 at 5.29
The Tribunal is satisfied that the essential and significant reason for such harm would be the applicant’s political opinion, specifically her support for, and membership of, Viet Tan and her online activism (s5J(1)(a)) and s5J(4)a)).
The Tribunal is also satisfied that the actions of the Vietnamese authorities in targeting political activists, such as the applicant, are both systematic and discriminatory (s5J(4)(c )).
The Tribunal is satisfied that harm faced by the applicant extends to all areas of Vietnam as required by 5J(1)(c)). The country information relating to the treatment of political activists, such as the applicant, is broadly framed, applying to the whole of Vietnam. In addition, DFAT clearly identifies that the Vietnamese security agencies are able to locate those of adverse interest anywhere in Vietnam[16].
[16] 'DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025 at [5.40].
The Tribunal is satisfied that there are no effective protections available in Vietnam, as the perpetrator of the relevant harm is the Vietnamese State (s5J(2)).
The Tribunal is also satisfied that the applicant cannot be expected to take reasonable steps to modify her conduct as this would involve altering or concealing her political beliefs, that the Tribunal has found to be genuinely held. Irrespective, the Tribunal has found that the applicant’s political views and activities are already known the Vietnamese authorities (s5J(3)).
The Tribunal is satisfied that the applicant has participated in her political and online activists in Australia as an expression of her genuinely held political beliefs and not for the sole purpose of strengthening her protection claims (s5J(6)).
Accordingly, the Tribunal is satisfied that the applicant meets the refugee criterion in section 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant meets the refugee criterion in s 36(2)(a), the Tribunal has not been required to consider the alternative criterion in s 36(2)(aa).
THIRD COUNTRY PROTECTION
The Tribunal finds that s 36(3) does not apply to the applicant.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
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5H Meaning of refugee
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.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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Protection visas – criteria provided for by this Act
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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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at 11.4.1-11.4.2, 12.4.3
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