2113664 (Refugee)

[2022] AATA 4367

2113664 (Refugee) [2022] AATA 4367 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Kerry Murphy

CASE NUMBER:  2113664

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:12 September 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 12 September 2022 at 3:12pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – demonstration against Formosa Plastics – compensation protest – summonses – lengthy detentions – political activities in Australia – decision under review remitted

LEGISLATION

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

CASES

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   [1]The Department provided the delegate’s decision to the applicant on 08/05/2020.

2. The applicant who claims to be a citizen of Vietnam, applied for a protection visa.[2]  The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[5]  The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there was a real risk he would suffer significant harm and he was not a person in respect of whom Australia has protection obligations as defined in the Act.[6]

   [2]The applicant’s application was received by the Department of Home Affairs on 30/7/2018.

   [3]The delegate’s refusal was made on 20/09/2021.

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

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

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

3. The applicant filed an application with the Tribunal for a review of the delegate’s decision.[7]  He appeared before the Tribunal to give evidence and present arguments to support his case[8] with the Tribunal undertaken with the assistance of an interpreter in Vietnamese and English languages.  

   [7]Filed on 07/10/2021.

   [8]On 17/08/2022.

4. The applicant was represented in relation to the review and the representative attended the review hearing.

   Criteria for a protection visa

5. The measures for a protection visa are set out in section 36 of the Migration Act 1958 (Cth) (the Act) and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9]  That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

6. The Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]

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

7. 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.[11]  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.[12]

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

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

8. The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[13] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[14]

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

   [14]Migration Act 1958 (Cth), ss 5J(2)-(6) and ss 5K-LA.

9. If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[16] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[17]

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

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

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

10. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]  Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]

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

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

    Country of reference and Applicant’s identity

11. The Applicant claims to be a citizen of Vietnam and he provided a copy of his passport to authenticate this claim.[20]  The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[21]

    [20]Issued [in 2014].

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

12. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the Applicant is not excluded from Australia’s protection obligations.[22]

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

    Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under section 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 APPLICANT’S CLAIMS AND THE EVIDENCE

14. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, a real risk exists that he would suffer significant harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[23]

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

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 

    Applicant’s claims

16. Based on the claims he made in his application for a protection visa, the applicant claims that he was one of the organisers of the compensation demonstration against the Formosa Plastics Group (Formosa).  Formosa caused a toxic waste spill into the South China Sea resulting in a monumental environmental disaster which impacted greatly upon the livelihood and businesses of many people, including his family.   He claims that because of his significant involvement in that demonstration, he is wanted by the communist Vietnamese government and he will be arrested and imprisoned if he returns to Vietnam.  He also claims that others involved in the demonstration have been arrested and are serving between nine and 14 years imprisonment for their role in organising the demonstration.  The applicant also claims that he left Vietnam very soon after the demonstration and travelled to [Country 1], and then to [Country 2].  He later travelled to [Country 3] and then to Australia.  He has never returned to Vietnam.

    Evidence

17. In support of his claims, the applicant gave evidence at the review hearing and provided what the Tribunal considers to be compelling corroborative evidence to support his claims.  He also relied upon a number of witnesses.      

    The applicant

18. The applicant was born and raised in a catholic family along with his [siblings] in [District 1] within the coastal province of Ha Tinh in Central Vietnam.  He graduated from high school in [year] and then attended college in Ho Chi Minh City for three years.   As with many generations of his family, his parents relied upon fishing as a means of employment and a way of life. 

19. The applicant described to the Tribunal that in April 2016, numerous dead fish were noticed along the coastline of four Vietnam provinces, including Ha Tinh.  This was the start of Vietnam’s largest environmental disaster caused by the Taiwan owned Formosa Plastics Group (Formosa) releasing chemicals into the sea from its massive steel plant located at the deep-water port in Ha Tinh province.  The chemical spill affected almost 200 kilometres of coastline and killed an estimated 115 tonnes of fish, leaving fishing communities, along with fishing and tourism industries devastated and many fishing and tourism employees unemployed.  This is now universally referred to as the Formosa disaster.   

20. The applicant went on to explain that he is aware that the Vietnamese government investigated the disaster and Formosa paid US$500 million compensation to the Vietnamese government to assist in the environmental rehabilitation of the affected area, and to compensate those citizens and businesses affected by the disaster.  Although the government had promised to pass on the compensation to those affected, it did not.  By the beginning of 2017, approximately eight months after the disaster, citizen unrest started to occur because people were unhappy about the inaction of the government.  

21. In his evidence, the applicant said that in March 2017 he was involved in a peaceful demonstration  about the government failing to pass on the compensation to those citizens and businesses affected by the disaster.  Community unrest continued after that date and on the evening of [a day in] April 2017, the applicant along with a number of other people including [Mr A] held a meeting to discuss the forthcoming demonstration about the government not passing on the compensation.  The meeting took place in [a location].  A group of [police] officers from the local police authority, including the local police chief tried to break up the meeting and they attacked various members of the meeting.  A scuffle took place and one of the police officers drew his pistol and discharged [shots].  Although no person was shot, a member of the meeting had to be taken to hospital because he had been beaten by the police.  The melee immediately gained the attention of various community members in the vicinity of the [location], including the parish priest who rang the church bell and asked for the parishioners to help the applicant and the others.  Many community members came to the rescue of the applicant and the other members of the meeting.

22. The applicant conveyed to the Tribunal that tensions remained high that evening and later that night more than 6,000 people marched upon the private residence occupied by the local [Official A].  Because the applicant was the leader of the local [Youth Group 1], he was actively involved in that gathering.   

23. In explaining the events which followed, the applicant said that the following morning,[24] a large gathering described as more than 7,000 people, demonstrated at the government offices known to as [Agency 1].  The demonstration was about the shots fired by the police the previous night the failure of the government to pay compensation arising from the Formosa disaster.  The applicant said he was actively involved in the organisation of that demonstration, and to corroborate this claim he provided to the Tribunal a number of photographs where he is clearly shown at the demonstration.  He also provided a number of video recordings.  Both the footage within the videos and the images shown in the photographs show a large gathering of people in what the Tribunal accepts as the large demonstration.  Captured within those photographs and videos is images of the applicant displaying significant involvement in the organisation of the demonstration.  He can be seen assisting others hold a large banner, and he is in possession of a microphone which he used to address the demonstration.         

    [24][Date specified].

24. It was the applicant’s evidence that the demonstration prompted the government to mobilise hundreds of police and military personnel.  The volatility of the demonstration escalated to the point where the government administration officers employed in the government buildings were evacuated.  A number of plain clothes police infiltrated the ranks of the demonstrators and mixed in with the crowd.  The demonstrators became aware of some of these plain clothes police were throwing stones back towards the police lines so as to incite the police to use force to repress and disperse the crowd.  The demonstrators chased these men back to the police lines where physical confrontations took place between the police and the demonstrators.  Some of the demonstrators were arrested, who were then rescued when other demonstrators converged upon the police.  The applicant was part of this group who went to rescue the arrested demonstrators.  The applicant said that at this point, he was struck over the head with an object wielded by a police officer.  Luckily, he was wearing a motorcycle helmet which protected his head, although other blows struck him on various parts of his body.

25. The applicant described to the Tribunal that the demonstration was a serious matter for the Vietnamese government because the authorities had 'lost face' by fleeing and losing control of the [Agency 1] offices to demonstrators, and this was a serious matter because to lose face impugns the Vietnamese culture. The applicant went on to explain that because the Vietnamese government saw the demonstration as a very serious matter and a loss of face,  this led to the government prosecuting two prominent organisers of the demonstration, and a warrant being issued for his arrest.  He added that in the days immediately following the demonstration, he managed to depart Vietnam and travel to [Country 1] on a [specified] visa.  It was when he was in [Country 1] that he received a phone call from an acquaintance and told that a summons had been issued for him to present himself to the local police authority for interrogation about the demonstration.  At a later time, a member of his family telephoned him and told him that a second summons had been issued for him and he was advised not to return to Vietnam because the police authorities were wanting to arrest him.  The applicant told the Tribunal that when he learnt he was wanted by the police, this made him very afraid of returning to Vietnam. 

26. He then travelled to [Country 2] where he stayed for some time.  When he was in [Country 2], he often received phone calls from someone who the applicant later discovered was a representative from the organisation called the Viet Tan. and he felt that he was being threatened by the Viet Tan because he resisted joining their organisation.  The applicant also learnt from his immediate family in Vietnam that they were constantly being terrorised by the local police, with the police desperately wanting to know where he was.  The police also asked his family he was associated with the Viet Tan.  The police threatened his parents that if they did not call the applicant back to Vietnam, his [sibling] would be arrested.  The applicant said he has never been a member of the Viet Tan. 

27. The applicant told the Tribunal that the threats on the secret calls he received from the Viet Tan when he was in [Country 2] were becoming more and more intense, and along with what he knew was happening to his family in Vietnam, he did not feel safe in [Country 2].  He then travelled to [Country 3], and then was granted a three-day visa to Australia.  He travelled to Australia, landing in Melbourne  [in] May 2018.  He added that since his arrival in Australia, he has not been idle in regard to his anti-Vietnamese government activities.  He became involved in the Vietnamese community in Australia and was elected to the position of [Position 1] of the [Branch 1] of the [Organisation 1], and then later as the [Position 2].  Because he was the leader of a [Youth Group 1] in Vietnam, he wanted to maintain this involvement and the [Organisation 1] group were interested in what he could do to assist them, especially as he had recent experience of what was happening in Vietnam, as well as some contacts there.

28. The applicant gave evidence about him attending anti-Vietnamese government demonstrations in Brisbane, and he provided copies of numerous photographs depicting him at those events.  He is shown in photographs near flags of the former Republic of Vietnam and these flags were visible around him.  There are also people near him wearing the yellow and red colours of support for the former Government in opposition to the current communist Vietnamese government.  The display of this flag is sensitive to the communist Vietnamese government and is considered opposition to the communist regime in Vietnam.[25]

    [25]The DFAT Country Information Report, Vietnam dated 11/01/2022, paragraph 3.108.

29. Because of his involvement in the [Youth Group 1] in Vietnam, and with [Organisation 1], he is the point of liaison between people in Vietnam and [Organisation 1] in Brisbane.  He also communicates with and assists Vietnamese people who live in Vietnam and are part of, or associated with the global organisational part of [Organisation 1].  His involvement is to recruit and mentor Vietnamese people in Vietnam to help provide information to the [Organisation 1] which can then be shared with various agencies and organisations such as BPSOS, Human Rights Watch and others.  He added that by him doing that, those activities are considered by the Vietnamese government as undermining the authority of the communist regime in Vietnam.

1. The applicant informed the Tribunal that others involved in the organisation of the demonstration have received significant prison sentences, and his evidence in regard to that, along with those other organisers that he identified, is corroborated by the evidence of [Mr A].

2. The applicant explained that he holds a well-founded fear of persecution if he returned to Vietnam, believing he will be arrested and imprisoned because of the role he played in the demonstrations outside the residence of the [Official A] and [Agency 1] during the Formosa demonstration.  He added that he cannot locate to a safe part of Vietnam because the authorities control the whole country. 

   Supporting evidence

3. In support of his application, the applicant relied on the evidence of three witnesses.  The Tribunal heard personal evidence from [Witness A] and Mr [Mr A].  The third witness was [Witness B] who provided a letter in support of the applicant’s application.

   [Witness A]

4. [Witness A] was born in Vietnam.  He is now an Australian citizen and is actively involved in the engagement of non-violent demonstrations and resistance against the current communist Vietnamese government.  He no longer bears his birth name and changed it to [Witness A] to protect his real identity from the Vietnamese government and associated Vietnamese authorities.

5. [Witness A] is the President of the [Organisation 1] and the co-founder of [their international group].  [Organisation 1] was established in 2016 with the focus on two main areas.  Firstly, to train and educate a group of young people to participate and continue to carry on the community works from the older generation among [Organisation 2] and worldwide; and secondly, to help the free world to see the lack of human rights and democracy in Vietnam, along with what the organisation alleges are the many other injustices covered up by the communist Vietnamese government, such as land rights, religion, freedom of speech and the people detained or imprisoned because they express their views by demonstrating.         

6. During the past two and a half years, [Organisation 1] has established a network inside Vietnam, with the organisation assigning each of its members, including the applicant, to lead and mentor two of their members in Vietnam. 

7. [Witness A] explained that he is aware that the communist Vietnamese government always monitor and follow everything that the organisation does, especially [Organisation 2].  He gave an example of an incident which took place a few years ago when his former spouse returned to Vietnam to visit a seriously ill relative.  At that time, she held an executive position with the [Organisation 2].  Two days after arriving back in Vietnam, she was summoned by the local police to attend the police station.  When she did, she was interrogated for four hours before she was released.  The next day she was again summoned to attend the police station and interrogated for another two hours. 

8. During her interrogation, the police showed her photographs of many people that she recognised as members of Vietnamese organisations or groups in Australia.  She was asked if she knew them, how well does she know them, was she involved with their work, and if they have any family currently living in Vietnam, what reasons she had for returning to Vietnam and was she asked to do anything in Vietnam or bring anything to Vietnam. She was also threatened that she had to spy on these people and report to the Vietnamese authorities if those people did anything against the Vietnamese government.  The threat was if she did not do all that, the authorities would make her, and her family suffer.

9. [Witness A] went on to conclude that now knowing what happened to his former spouse, he believes that the Vietnamese communist authorities have been and always will keep an eye on everything that [Organisation 2] do in Australia.

10. When speaking about the applicant, [Witness A] said that the applicant has been one of the organisation’s overseas members since mid-2018.  Within the organisation’s executive structure, the applicant was the [Position 2] for 12 months during 2018 to 2019.  His election to that executive position was because of his past experience in Vietnam where he was the leader of a youth group. 

11. [Witness A] said that the applicant is currently leading a team that is working on religious issues in Vietnam.  [Witness A] went on to say that because the applicant is the leader of that small team, he is responsible for the safety of the members in Vietnam, and responsible for ensuring that those members in Vietnam are financially supported.  

12. [Witness A] explained that the applicant has regularly demonstrated his very strong views about the communist Vietnamese government, and he considered that the applicant would do everything he could to help the people in Vietnam to be free from the communist dictatorship experienced in Vietnam. 

13. Based on his own knowledge and experiences, in particular what happened to his former spouse, [Witness A] said that because the applicant had to flee Vietnam because for the reasons he did, and because he is intrinsically established and significantly involved with the [Organisation 1], there is sound reasons for accepting that the applicant is under surveillance by the communist Vietnamese government and he would definitely be a person of interest to them if he is to return to Vietnam.

14. The Tribunal has carefully considered the written and oral evidence of [Witness A] and notes that although he was unable to speak or comment on the applicant’s activities so far as his involvement in the Formosa demonstration, he was able to provide a significant degree of insight into the applicant’s current involvement in demonstrations in Australia and his support of home-based dissents in Vietnam.

15. The Tribunal acknowledges the frankness and openness of [Witness A’s] evidence and finds that his evidence was delivered in a forthright and credible manner and it is corroborative of the applicant’s claims.       

    [Mr A]

16. [Mr A] was born and lived in Hanoi, Vietnam.  He is now a United Nations Refugee Agency (UNHCR) sponsored refugee living in [Country 4].  [Mr A] describes himself as an environmentalist.  

17. Since 2011, [Mr A] has a history of political activism in Vietnam which has led to him receiving terms of imprisonment in 2012 and again in 2014 when he involved himself in political and environmental demonstrations.  In 2014, he involved himself in a large demonstration where citizens rallied against the Vietnamese government’s decision to destroy [trees] in Hanoi.

18. As can be seen from [Mr A’s] history thus far, by this time he already had an active public political profile as a demonstrator and regularly agitated against the policies and rulings of the communist Vietnamese government.

19. In April 2016, the Formosa disaster occurred.  As a committed environmentalist, [Mr A] learnt that although the Vietnamese government had received the money from Formosa’s compensation payout, that money had not been passed on to those affected by the disaster.  He decided to help those affected as much as he could. 

20. During the period of March 2017 to April 2017, [Mr A] and his companion [Mr B] went to [Village 1] in the Ha Tinh province to help the local fishermen reclaim their benefits.  Other people assisted him, including the applicant who [Mr A] described as the leader of a youth group.  There were efforts made by the government officials trying to force [Mr A] and [Mr B] to leave the village or have them arrested.  

21. [Mr A] described in his evidence the events of the evening of [a day in] April 2017.  He said that he and [Mr B], along with members of a local youth group had a meeting to discuss the forthcoming demonstration about the government not paying the compensation.  Also at that meeting was the applicant.  A group of [police] officers from the local police authority, including the [Official A] tried to break up the meeting and attack various members of the meeting.  A scuffle took place and one of the police officers drew his pistol and discharged [shots].  No person was injured, but this immediately gained the attention of various member of the community in the vicinity, and they came to the aid of [Mr A], [Mr B variant], the applicant and the others involved in the meeting.

22. It appears that members of the local community were incensed by the actions of the police.  That evening a large group of people descended upon the [Official A’s] private residence.  He was not home, but members of his family were.  [Mr A] said that although he was not personally part of the group involved in this event; but he is aware that the applicant was.    

23. [Mr A] said that the next morning, [date], he and [Mr B] joined about 7,000 other people and went to the [Agency 1] offices to claim the benefits.  He witnessed the applicant call upon the people to help [Mr A] make a banner, as well as call on the people to prepare food for the people involved in the demonstration.

24. [Mr A] saw the applicant and many others from the youth group and the local community go to the [Agency 1] offices as part of the large demonstration.  [That morning], the [Agency 1] offices were over run and occupied by many demonstrators causing the government staff and officials to flee the building.  A large contingent of police engaged with the demonstrators, with some undercover plain clothes officers mingling with the demonstrators and were seen to be throwing rocks at the uniform police trying to cause a violent reply so that the police could attack the demonstrators.  As the demonstration escalated, many people had to flee, including [Mr A] who said that he was fortunate, but his companion [Mr B] was arrested and later imprisoned for [number] years by a Vietnamese court for his involvement in the demonstration.[26]   

    [26][Source deleted].

25. [Mr A] told the Tribunal that after that demonstration he was a wanted person, and his arrest was sought by the Vietnamese government.  Despite a warrant being issued for his arrest,[27] he managed to flee to [Country 5], then travelled to [Country 6] where he was registered with the UNHCR.  In 2019, he travelled to, and resettled as a sponsored refugee in [Country 4].

    [27]Warrant issued on [date].

26. [Mr A] told the Tribunal that he is aware that many others also fled Vietnam as soon as they could after the demonstration, including the applicant.  [Mr A] is aware that the applicant is seeking asylum in Australia and that his evidence is to assist the applicant.  He went on to tell the Tribunal that in his view, the applicant is in grave danger of being imprisoned if he returned to Vietnam.  He said that he is able to say that because when you compare the punishment and sentence [Mr B variant] received to the applicant’s circumstances, the involvement of both [Mr B variant] and the applicant in the organisation of the demonstration was fundamentally the same.  He went onto say that other features which do not favour the applicant was the applicant’s involvement; and his role with organising the youth group in the demonstration; the fact that the [Agency 1] Office was occupied by the demonstrators, even for a short time; the demonstration caused the abandonment of the government building by the staff and employees; and all this was a major loss of face for the Vietnamese authorities.  [Mr A] added that in his experience such an event as that demonstration and what had occurred meant the Vietnamese authorities are very determined to punish the principals involved, even though several years have passed.  He said that in his experience, the Vietnamese government do not forget the loss of face, and they will punish those involved.

27. [Mr A] went on to tell the Tribunal that the Vietnamese authorities also monitor the activities of Vietnamese nationals involved in activist groups overseas who are opposed to the authorities in Vietnam. He gave an example that he was aware of the case involving [Mr C].  When [Mr C] travelled back to Vietnam from Australia, he was detained and questioned for practising his political beliefs in Australia.  A Vietnamese court sentenced him to 12 years imprisonment.

28. The Tribunal finds that [Mr A] was an impressive witness, and his evidence was given in a frank, open and credible manner.  Like the evidence of [Witness A], [Mr A’s] evidence corroborated the claims made by the applicant particularly with respect to the applicant’s involvement in the Formosa demonstration, along with the arrest and incarceration of the other organisers and the real risk of persecution if he returned to Vietnam.

    [Witness B]

29. [Witness B] is the President of [Organisation 2] [specified branch], which operates from [a specified location].  In his letter to the Tribunal,[28] [Witness B] said the applicant had been an active volunteer member of the community before he relocated to Canberra at the beginning of 2019.  He returned to Brisbane in 2020 and continued to volunteer for the community.

    [28]Dated 27/07/2022.

30. Although the Tribunal considers that [Witness B’s] letter did not overly assist in providing any probative value to the applicant’s case, the Tribunal did find that it gave a certain degree of insight into the applicant’s public profile within [Organisation 2].

31. In assessing the probative value of [Witness B’s] evidence, the Tribunal finds that significant weight should be placed on his comments about the applicant’s current involvement in the anti-Vietnam government movement in Australia.  The Tribunal accepts [Witness B’s] evidence.         

    Analysis of applicant’s claims

32. The Tribunal accepts and notes that at the time of the Tribunal review hearing, the applicant had acquired a far greater body of evidence to support his claims than to which he presented to support his original application.  The Tribunal acknowledges that when the delegate made the original assessment of the applicant’s application, the benefit of that substantial body of probative evidence was not available to the delegate.    

33. Invariably, and as was in this case, considerable time can pass between when the delegate made the original assessment, and the matter being determined by the Tribunal.  Consequently, it is incumbent upon the Tribunal to hear and decide the applicant’s claims by way of a fresh hearing on the merits of his application as at the date of the review hearing.   In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the delegate relied upon to reach the original decision.[29]  

    [29]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.

34. The country information contained within the DFAT report on Vietnam provides that the Formosa chemical spill in 2016 was Vietnam’s worst ever environmental disaster.  The disaster killed approximately 115 tonnes of fish and devastated, and in many cases ended the livelihood of fisheries workers.  Formosa paid US$500 million to the Vietnamese government by way of compensation to clean up the disaster and to compensate those business and citizens affected.  The demonstration demanding more compensation led to arrests of both street demonstrators and online activists, notably including Catholic clergy and their followers.  The DFAT understands that Formosa demonstrations are no longer occurring, at least on a large scale.  Other sources told the DFAT that some citizens remain dissatisfied and have launched legal appeals against the compensation paid, which they considered to be inadequate.[30]

    [30]The DFAT Country Information Report, Vietnam dated 11/01/2022, paragraphs 3.66.

35. In respect to the oral testimony of the applicant, the Tribunal finds that his evidence was delivered in a spontaneous, consistent and forthright manner and his evidence supported the claims he made, and it was corroborated by the photographic images and video footage he relied upon to validate his claims.   

36. The Tribunal accepts the applicant participated in the Formosa demonstration, and that he was primarily one of the leaders and organisers of that demonstration.  In making that assessment, the Tribunal observes that the applicant resided in one of the provinces affected by the Formosa disaster; he lived where the demonstration occurred; he was the leader of a local [Youth Group 1] and he participated in a meeting with other interested parties in respect to the organisation of the Formosa demonstration. 

37. The DFAT reports that while the Vietnamese constitution protects the rights of the citizens to demonstrate, in reality this is subject to the national security provisions of the Penal Code that effectively outlaws demonstrations which the communist government finds sensitive.  The Tribunal accepts that because of their involvement in the Formosa demonstration, others who were meaningfully involved with the organisation of the demonstration have been imprisoned for significant terms of imprisonment.  The Tribunal also accepts that because of his involvement, the applicant was the subject of an arrest warrant and still remains wanted by the communist Vietnamese government. 

    Future risk of harm to the applicant

38. The Tribunal notes the country information from the DFAT report provides that demonstrations relating to the Formosa disaster are no longer occurring on a large scale.  It appears that this is principally because most of those affected have received compensation. 

39. In assessing the applicant’s claim that he possesses a well-founded fear of returning to Vietnam, the Tribunal must consider whether the applicant faces either a real chance of serious harm or a real risk of significant harm should the applicant return to Vietnam in the foreseeable future.  The test to be applied is a forward-looking one.

40. The applicant was an organiser and agitator of the Formosa demonstration in April 2017.  Having carefully considered the applicant’s claims, the Tribunal finds that notwithstanding the demonstrations against Formosa have subsided, the applicant has a public political profile within Vietnam.   His involvement and participation in past demonstrations will continue to be known in his home area and if he returns there is a real chance he will arrested by the authorities and prosecuted.  The Tribunal accepts that for the indispensable reasons of his political involvement and opinions there will be a real chance he will face serious harm if he returns to Vietnam, now or in the reasonably foreseeable future.

41. The Tribunal also accepts that the communist Vietnamese government are perpetrators of the harm feared by the applicant.  The Tribunal also accepts that effective protection measures are not available to him and that the real chance of serious harm extends throughout Vietnam.

42. For those reasons given above,  the Tribunal find the applicant meets the definition of a refugee and the criteria set out in the Act,[31]  

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

    CONCLUSION

43. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

    decision

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

    Wayne Pennell
    Senior Member

Attachment  -  Extract from Migration Act 1958 (Cth)

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.

…