2118231 (Refugee)

2118231 (Refugee) [2024] AATA 1030 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Hoang
CASE NUMBER: 2118231, 1908831 and
1906203

COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Damian Creedon
DATE:31 January 2024
PLACE OF DECISION:  Perth
DECISIONS:   2118231: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
1908831:The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise Visa and substitutes a decision that the visa application is not valid and cannot be considered.
1906203:The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise Visa and substitutes a decision that the visa application is not valid and cannot be considered.

Statement made on 31 January 2024 at 3:19pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – irregular maritime arrival – earlier applications invalid with no jurisdiction to review – extensive incorrect information given at entry interview to protect identity – reasonable account and attempt to correct information – religion – Roman Catholic – church attendance from childhood – disruption by police – participation in major incident, beaten by police and parents threatened – political opinion – member of Viet Tan – organisational role in state chapter, participation in protests and social media activity – supporting statements from Viet Tan chapter and church, and photos – country information – fear of persecution under refugee criteria not well-founded – real risk of harm under complementary protection criteria – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (2A), 46A, 46B, 48A, 65, 91L, 425(2)(a)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIDP [2018] FCAFC 178
Guo v MIEA [1996] FCA 1263
MIEA v Guo (1997) 191 CLR 559
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (FCA, NG994 of 1993, 11 August 1994)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2021 to refuse to grant the applicant a Class XE (subclass 790) Safe Haven Enterprise visa (a form of protection visa), under s 65 of the Migration Act 1958 (Cth) (the Act).
Background:
General
The applicant, a [Age]-year-old citizen of Vietnam, applied for the visa on 6 October 2020.
In support of his visa application the applicant supplied a copy of his Birth Certificate, issued by the government of Vietnam. The details recorded on the certificate indicated that he was born on [Date] in [Ward] [District], Nghe An province, Vietnam. His stated ethnicity is “Kinh”. The applicant states in his visa application that he is unmarried.
Departmental records indicate that the applicant arrived as an Irregular Maritime Arrival [in] April 2013 aboard Suspected Illegal Entry Vessel (SIEV) [Number], codenamed “[Codename]”.
Application for Safe Haven Enterprise Visa
The applicant first lodged an application for a Safe Haven Enterprise visa on 31 October 2016, after a s 46A and s 46B bar was lifted. This application was refused on 20 February 2017 and the Immigration Assessment Authority affirmed this decision on 4 May 2017. The applicant sought judicial review of this decision and the Minister withdrew from the review on 20 February 2019. On 4 September 2020, the applicant was notified that his application of 31 October 2016 had been invalidated as a result of the DBB16 judgement.[1] On 18 September 2020, the applicant was notified that the Minister had intervened and lifted s 91L and s 48B bars and he was able to lodge a further Safe Haven Enterprise visa application, which the applicant lodged on 6 October 2020. The decision to refuse that application is the decision that is the subject of this review.
[1] See: DBB16 v MIDP [2018] FCAFC 178.
In his application, the applicant indicated that he fears returning to Vietnam because:
a.he left the country illegally because he was facing indefinite detention and torture for opposing the government in relation to his Catholic beliefs; and
b.he has become an active member of the Viet Tan movement.[2]
[2] See: applicant’s statement of 1 October 2020.
The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 3 December 2021. He provided the Tribunal with a copy of the delegate’s decision record.
Protection visa application:
The applicant’s written claims for protection are set out in his submissions to the Tribunal of 22 November 2023. He claims to be at real risk of serious harm should he return to Vietnam for any or all of the following reasons:
·The applicant claims to be a prominent member of Viet Tan; in particular, a [position] of Viet Tan [stated] Chapter. The applicant claims to be responsible for [Organisational tasks] and claims he “could” receive a harsher punishment and arrest sentence due to his role within Viet Tan upon his return to Vietnam.
·The applicant claims to have participated in protests in Australia and [social media] activities which are considered offensive to the Vietnamese government and claims that he would be imprisoned by the Vietnamese authorities for these activities.
·The applicant claims to still be involved in church activities in Australia to speak up against oppression of religion and demand a release of other Catholics in Vietnam.
·The applicant would be arrested because of his involvement in a religious oppression at Con Cuong in 2012 in Vietnam.
·For cumulative reasons, being that the applicant was persecuted and left Vietnam as a Catholic who is politically active, a “valuable” member of Viet Tan, and publicly made critical opinions against the Vietnamese government, it likely that the applicant would be detained, severely punished, and imprisoned in Vietnam.
The applicant participated in an interview with the delegate of the Minister on 9 November 2021.
The delegate refused to grant the visa on 30 November 2021 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision on 3 December 2021.
Application for review:
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 425(2)(a) of the Act.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law:
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 6 October 2020;
(b)the applicants’ identity documents provided to the Department;
(c)the protection visa decision dated 30 November 2021 (delegate’s decision);
(d)the application for review form dated 3 December 2021, which included a copy of the delegate’s decision;
(e)Department files [References] concerning the applicant’s protection visa applications, which includes all documents submitted to the Department in support of his protection visa application.
The Tribunal has also had regard to:
a.the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Vietnam, 11 January 2022 (DFAT Report);
b.the United Kingdom Home Office (UKHO) Country Policy and Information Note Vietnam: Opposition to the State, August 2023 (UKHO Note); and
c.other country information as set out in the analysis below.
Country of reference:
The applicant claims to be a citizen of Vietnam. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that 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 under s.36(3) of the Act.
Assessment of evidence:
Overview
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
General background evidence
The applicant’s personal details and the general background to his applicant is uncontroversial and is succinctly set out in his written statement dated 1 October 2020 (Statement), and it is convenient to set out its material aspects in full:
1.   I am a [Age]-years-old. I was born in [ward], [district], Nghe An province, Vietnam on [Date]. I do not hold any other citizenships and to the best of my knowledge, do not have a right to reside in any other country. …
2.   I was interviewed by an officer of the Department of Immigration at Darwin in August 2013 about 3 - 4 months after I first entered Australia in April 2013. I was asked to give a brief description of my claims, but I did not give full details of my claims at that time.
3.   There are inconsistencies between this statement and what I said in my previous arrival interview. I attempted to clarify with the Department some of these inconsistencies, including about my name, date of birth, birthplace and family members. I also provided the Department with form 1022 in December 2013 and further clarification during my protection visa interview held on 25 January 2017.
Inconsistencies
4.   There are inconsistencies between this statement and what I said in my previous entry interview, including:
a.Name: I previously said my name was '[Alias]'. I have since notified the Department that my name is '[the applicant]';
b.Date of birth: I previously said my date of birth was [Date]. My date of birth is [Date];
c.Birthplace: I previously said that my birthplace was [village], [ward 2], Dak Nong province. My birthplace is [ward], [district], Nghe An province;
d.Education: I previously said that I attended primary school between [Year] and [Year], and secondary school between [Year] to [Year]. I attended primary school between [Year] and [Year], and secondary school between [Year] to [Year];
e.Work: I previously said that I looked after livestock in [village], [ward 2], Dak Nong province between 2009 and 2011. I actually worked at a cattle farm in Dak Nong province in early [Year], after I finished school;
f.I also previously said that I worked in a [Workplace] in Binh Thanh, Ho Chin Minh city between 2011 and 2012. I actually worked at Ho Chi Minh city as [an Occupation] in a [Workplace] between 2010 and 2012;
g.I also previously said that I worked as a freelance labourer in Ho Chi Minh city between 2012 and February 2013. I actually worked in this role between July 2012 and March 2013; and
h.Family: I previously said that my father and mother were deceased and that I was an orphan and I had no siblings. My father and mother actually live in my birthplace with my younger sister and brother. I also had another younger sister, but she is deceased.
5.   These, and any other inconsistencies between this application and my previous interviews with the Department exist because, when I was initially in detention and interviewed, I was very fearful that some of the people, who were detained with me, were linked to the Vietnam government and so, I tried to protect my identity and my background.
6.   I was also fearful, at the time, that my true identity and background would be leaked to the Vietnamese government, and that then they would be able to know that I was in Australia. I was also scared that if they found this out, they would go to my parents' house and beat my parents.
7.   I am aware that in January 2014 some of my personal information was accidentally released and available on the Department of Home Affairs website.
8.   Also, any inconsistencies may be due to issues with interpretation or the limited time I had to answer
9.   I gave an account of my journey from Vietnam to Australia during my entry interview. If there are factual errors or the Department requires more information about my travel to Australia than what I initially provided, then this can be addressed at the time of my interview with the Department.
Identity documents
10.   When I lived in Vietnam, I had the following identity documents:
a.Birth Certificate; and
b.Residential Certificate.
11.   I did not bring those documents with me to Australia. After I arrived here, I obtained a colour scanned copy of those documents by email from my sister's friend who lives in Vietnam. My sister's friend sent copies of my documents to her friend in [Detention Centre].
12.   To the best of my knowledge, all the documents I have provided to the Department are genuine copies of original documents. However, I am not able to positively affirm that this is the case, as the documents have not been in my possession at all times and/or were obtained by others and sent to me.
My family
13.   My father and my mother are both farmers and they live in [ward], [district] Nghe An province in Vietnam.
14.   I have two siblings, my sister [Ms A] and brother [Mr B]. My sister [Ms C] passed away in 2013.
My Catholic faith and persecution of Catholics
15.   I was raised as a Catholic, baptised as a baby and undertook my confirmation.
16.   My father taught the children at the local Catholic clergy in my home village. I would normally attend either my local parish, which is called [parish 1], and other parishes around the area on a weekly basis.
17.   Between 2008 and 2009, when I attended my local parish, the police would not stop us praying, but they would make noises inside the parish while we were praying and would make fun of our religion.
18.   Also, during this time, on important days, such as Christmas day, the police would come and remove the decorations that my local parish would put up.
19.   I would attend church regularly. When I was in Nghe An province I attended [parish 1]. During the periods I was living in Ho Chi Minh City, I would attend the [District] parish every Sunday whenever I was there.
20.   I had heard through the archbishop of the Nghe An diocese, Archbishop Nguyen Thai Hop, that an incident occurred at the Con Cuong parish, which is approximately a one hour drive from Nghe An province, on 3 June 2012. I was told that approximately 200 people had congregated at this parish for praying and, during the service, police officers arrived and they physically assaulted the parish priest, Father Ngo Van Hau, and other devotees with batons. The archbishop asked us to pray for the priest and people who had been beaten.
Incident at Con Cuong parish
21.   [In] July 2012, I went to the Con Cuong parish and joined the service to pray. During this service, approximately 50 police officers arrived and they were beating the people praying, including me, and trying to disperse the group. One of the police officers beat me with a short baton on the back of my neck, and I suffered a wound, on my shoulder and my lower back.
22.   The police also sprayed capsicum spray generally, and some of the spray went into my eyes, which caused my eyes to sting. The police officers managed to arrest some of the people, though others, including me, were able to flee the area. I was scared and, in the evening, I left for Ho Chi Minh city. I did not go to the hospital for my injuries as I knew that there would be a chance that I would be arrested at the hospital.
23.   Two days after this incident, the local police attended my parents' house and asked where I was and they threatened my parents saying that if I was at home, they would beat me to death. My parents responded saying that they did not know where I was.
24.   I believe that the local policeman, who looks after the residential zone where my family live, and who were also at the Con Cuong parish during the incident [in] July 2012, realised that I had fled and would have reported this back to a higher-ranking police officer.
25.   A similar incident, where the local police attended my parents' house, happened approximately three months later, when I was in Ho Chi Minh City, and the local police threatened my family to find out where I was. My parents again said that they did not know where I was.
26.   When I moved to Ho Chi Minh city, I was still scared and I tried to laylow to avoid interaction with the police.
27.   Over the next year, the local police would randomly wander around my parents' house once in a while. These police visits continued after I arrived in Australia and would have occurred on at least a further three occasions. The police also tried to ransack the house to try and find out where I had gone.
My father's political activities
28.   When I was interviewed for my SHEV application, I explained that in July 2009 my father took part in an anti-government demonstration organised by the Church in Quang Vinh Province, he was summoned to the village police station. Some months later the government seized our land. The demonstration lead to my father's land being confiscated. When our land was confiscated I protested and I was arrested.
29.   Because of this experience of being arrested in 2009, after I protested the seizure of our family's land, I knew that after my involvement in the demonstration at Con Cuong in 2012, that the police would seek to arrest me.
Incident at school
30.   Other than my involvement with the protest about land seizures, when I was in year [grade] I was briefly dismissed from school for refusing to chant slogans such as 'long live the Vietnamese Communist Party', and 'long live Ho Chi Min in our hearts'.
Seven years in Australia
31.   Since living in Australia, I have dedicated myself to learning English, working, and attending church. I have participated in the church choir and various charity events run by my church.
32.   Since 2017 I have also been involved the Viet Tan party. The Viet Tan party has a non violent policy to fight against autocracy in Vietnam. By this I mean that Vietnam is governed by one party. It doesn't allow any person to raise objections or allow activities by any other political party.
33.   Viet Tan would like to build a democratic country. It would like to reform and rebuild the country. By reform we mean to reform communist party policies in terms of education and economic policy which are only done in the interest of the ruling government without any input or consideration of the people. By rebuild, we mean that the Viet Tan would like to institute changes that allow input from the people, in order to build a democratic government.
34.   In Australia Viet Tan fights for and educates its members and the wider community about human rights issues in Vietnam, particularly through the use of social media. The [State] party also supports individuals in Vietnam who have been harassed by the authorities, such as Viet Tan party members, and other individuals that run activities against the government.
35.   As a member of Viet Tan, I cannot disclose the names of the individuals that we assist or provide too much information. This is a condition of my membership of the party. In May 2019 I filled in a Viet Tan membership form. This was about two years after participating and learning aboutthe activities and goals ofVietTan. During those years, I also met many members who have influenced me. I saw that the objectives of the Viet Tan were aligned with my intentions and after a six-month trial period I was finally permitted to join as a member.
36.   I have participated in the following activities run by Viet Tan and other similar groups:
a.Since becoming a member I attend monthly meetings. The meeting location and times vary. This is for safety and security reasons. During the meeting we discuss various topics. Normally, one of the higher-ranking members of the party will provide updates on the harassment by the Vietnamese state of opposition groups / individuals. These reports might be about government crackdowns or other human rights abuses that are taking place.
b.From May -December 2019 I attended monthly meetings and other meetings that were called by the party.
c.Prior to May 2019 I volunteered in [activities]. I was also in a [group] that [participated in] events run and organised by Viet Tan.
d.Attended demonstrations demanding that the Vietnamese government release prisoners of conscience, protesting the Vietnamese government's intention to provide a long-term lease to China in areas called the special zone.
e.Also, demonstrations against the law of internet security which the government of Vietnam wanted to pass to control the activities of Vietnam.
f.I also participated in demonstrations calling on the Vietnam government to observe human rights and uphold the various international human rights charters the country has signed.
g.Participated in [a meeting] in Brisbane in 2018.
h.[In] September 2019 I travelled with some other Viet Tan members to Sydney, to participate in a protest calling for the release of Van Kham Chau, an Australian citizen detained in Vietnam because of his membership of Viet Tan.
i.There are many other community events, and meetings that I have attended since being released from immigration detention in Australia related to advancing the human rights in Vietnam.
37.   I have also participated in other events run by the [State] Vietnamese community including:
a.Commemoration of 30 April, known as Black Friday;
b.Vietnamese new year celebrations; and
c.At all of these events the South Vietnamese flag is raised. We raise this flag because it is a legacy of democratic Vietnam. We do not recognise the current flag of communist Vietnamese government because we do not wish to show any support for the Vietnamese government.
38.   I have very strongly held political views and these views will be with me until the day I die, wherever I am. The Vietnamese government considers all VietTan party members terrorist and they already have many laws which they use to punish terrorists. My political involvement in Australia and the laws in Vietnam put me at serious risks of harm upon my return.
39.   If I were forced to return to Vietnam it would be difficult to accept that I will no longer be able to express my political views critical of the Vietnamese government. Doing so would put my life at risk, and possibly my family members' lives at risk. It is well known that in Vietnam, individuals and groups opposed to the Vietnamese government or its policies are persecuted and seriously harmed.
Corroborating evidence:

In support of his submissions and his Statement the applicant provided a significant body of corroborating evidence, collated in a “Photo Evidence Booklet”. The booklet includes the following documents:
a.A letter on the letterhead of the “Vietnam Reform Party, [stated] Chapter” under the hand of [Mr D], [Official position], dated [November] 2023 which states, materially:
My name is [Mr D] and I have been holding a position as [an Official position] of Viet Tan, [stated] Chapter.
Viet Tan is an international organisation advocating for human rights, social justice and democracy for Vietnam through peaceful means.
I would like to confirm that [the applicant] has officially become a Viet Tan member since 29th December 2019.
Prior to becoming our member, particularly in the years 2017-2019, [the applicant] had associated with and participated in our many activities and training-courses provided to him.
[The applicant] had successfully completed all the tasks required and had shown good characters of an honest, genuine and enthusiastic person who has a profound love for Vietnam and Vietnamese people.
He freely joined Viet Tan because he understood Viet Tan's visions and missions for Vietnam and that met with his desire to carry out his aspirations to protect human rights and to bring freedom and democracy for Vietnamese people.
[The applicant] has been a very active and valuable member of Viet Tan.
He has good morality and is very disciplined with every task given to him, He has always given his supports to other members.
He has always been active in all our campaigns including rallies and online petitions, publicly calling for protection of Vietnam's sovereignty and human rights as well as promoting democracy in Vietnam.
I refer to my letter made in November 2021 that [the applicant] was appointed in December 2020 by our Committee board as [Organisation position] responsible for [Organisational task] to support our activities. He is still holding this position to present.
These events include [monthly Events]; annual dinner. He also actively collects recycle bottles/cans as part of our fund-raising efforts. He has shown his organisational skills, his ability to work with others and to liaise with wider community. He is trusted and loved by all of us and by our community.
[The applicant] has also been taking part in our Social Media Group to promote Internet freedom, human rights and pro-democracy in Vietnam.
He has been actively contributing in our recruiting efforts which aim to expand our membership bases in Australia and in Vietnam.
[The applicant] is a mature and responsible person who lives his life with purpose to help his family and other people. He is able to fulfill his dreams and aspirations in Australia, a free country.
However, his views and activities will be subjected to severe persecutions with lengthy imprisonment or even death, should he be returned to Vietnam.
In Vietnam, the Vietnamese Communist Government has officially labelled Viet Tan as a terrorist organisation and many members of Viet Tan have been arrested and jailed just because they are members of Viet Tan.
Currently, the Vietnamese Communist Government has been arresting and sentencing in prison many activists, such as LE Dinh Luong (member of Viet Tan, 20 years).
Especially, Mr Chau Van Kham, a Viet Tan member in Australia and Sydney, was detained in Vietnam on 13 January 2019 and sentenced 12 years in prison.
He was recently freed to return to his family, thankfully to great and lengthy efforts of our Australian Government and others.
b.A letter on the letterhead of the “The Vietnamese Catholic Community in [State]” under the hand of [Fr E], dated [November] 2023 which states, materially:
I am [Fr E], a Vietnamese Roman Catholic Priest, Chaplain to the Vietnamese Catholic Community in [State], Authorised Celebrant Number [Reference], writing this Reference to certify that I have known [the applicant] (who was born on [Date]) for over 09 (nine) years. I first met [the applicant] when I came for celebrating Religious Services at [Detention Centre] in July 2013, every fortnight on Thursday.
Being granted the permission from the Immigration Department of Australia to be a Temporary Resident since October 15th 2014, he came to our community and he started, step by step to settle down. In 2015, he joined the [Choir] to sing Liturgical Songs every Sunday morning, he has been doing so until this day because he has been attending Mass regularly.
[The applicant] has been a very active member of our parish, not only in terms of parishioner but also as a volunteer in every activity of our parish. He willingly contributes what he has or he can afford to any charity collection. His effort has contributed so much to our community building up. I have found [the applicant] to be honest, responsible and dedicated. He is always helpful in all areas where assistance is needed.
I have also found [the applicant] to be a conscientious young man who knows how and when to be serious about the task at hand. He has a fine and wonderful personality which makes him acceptable and loved among our parishioners. He is reliable, faithful and trust worthy. I appreciate his care for others with heart and soul. For me, he is a young person with excellent character.
c.A series of photos with the following descriptions:
·Photo 1: [the applicant] was rallying with other activists for the Vietnamese Communist Party to release the prisoners of conscience – event organised by Viet Tan on the international human rights day - December 2022.
·Photo 2: [the applicant] campaigned with Viet Tan members for the Communist China Party to return Spratly Islands back to Viet Nam – September 2023.
·Photo 3: [the applicant] and Viet Tan members meet with activist Chau Van Kham after he returned from the Communist Viet Nam’s prison - September 2023.
·Photo 4: [the applicant] attended Viet Tan’s monthly meeting - 2023.
·Photo 5: [the applicant] prepared for a Viet Tan’s annual gathering event - August 2023.
·Photo 6: [the applicant] was in the procession to light the incense to honour the Viet Tan’s pioneering heroes – August 2022.
·Photo 7: [the applicant] was [at an event] for the Viet Tan’s public event to commemorate the Viet Tan pioneering heroes - August 2022.
·Photo 8: [the applicant] prepared and light up the incense to commemorate the Viet Tan pioneering heroes – August 2023.
·Photo 9: [the applicant] was [at an event] for the Viet Tan’s annual gathering event – August 2023.
·Photo 10: [the applicant] welcomed new members after the Viet Tan’s oath taking ceremony – May 2022.
·Photo 11: [the applicant] participated in the fund-raising event for the construction of the Vietnamese Cultural Heritage Centre – March 2021.
·Photo 12: [the applicant] organised and sold food at fund-raising event for Viet Tan – February 2023.
·Photo 13: [the applicant] collected bottles/cans to fund raised for Viet Tan.
d.Copies of approximately 50 [Social media] posts under the applicant’s name, reposting political messages from the [Social media] page of Viet Tan; four random examples of the posts including are set out below:
[Information deleted].
Country information:
Political opinion (actual or imputed)
The DFAT Report sets out the following information regarding people who hold an actual or imputed political opinion in Vietnam:
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited, invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted
Online activists and social media users
3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.
3.62 Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
3.63 Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.
3.64 It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.
The Viet Tan
The UKHO Note records the following in respect of the Viet Tan movement (citations omitted):
8.2.1 The Guardian reported in 2016 that:
‘Vietnam has declared a US-based activist group a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished.
‘The government said the California-based Viet Tan, or Vietnam Reform Party, had recruited and trained operatives to use weapons and explosives.
‘Vietnam has long been sensitive to the activities of Viet Tan, calling the group “reactionaries”, but the announcement carried on state television was the first time it had designated it a terrorist organisation.
‘The police-run ministry of public security said Viet Tan had trained members in militant activities, kidnaps and murders and arranged for operatives to sneak into Vietnam to organise protests and instigate violence.
‘Viet Tan has long been an annoyance for the Communist party that has ruled since the US-backed South Vietnam government fell to northern forces in 1975, leading to an exodus of more than 1 million people, mostly to the US.
‘It was founded by exiled remnants of the deposed Saigon government in 1982 and states as its mission to “overcome dictatorship and build the foundation for a sustainable democracy”.
‘… Despite steadily introducing more liberal social and economic reforms in recent years, the Communist party has a zero-tolerance approach to criticism and has punished detractors harshly.’
8.2.2 ABC News noted that: ‘Vietnamese authorities …sentenced … [Australian citizen Chau Van Kham] to 12 years in prison on national security charges, due to his links with pro-democracy group Viet Tan.’
8.2.3 The Overseas Security Advisory Council (OSAC) security report on Vietnam published in July 2022 noted that: ‘The Vietnamese government has …designated California-based pro-democracy group Việt Tân as a terrorist organization, accusing the group of training members to sneak into Vietnam to organize protests and instigate violence. Among others, authorities in 2019 arrested a Vietnam-born Australian citizen for his work with the group, convicting him of working to “fund terrorist operations.”’
The government of Vietnam considers opposition pro-democracy groups such as Viet Tan to be terrorist organisations. As political opposition parties are illegal within Vietnam,[3] opposition parties are typically based overseas to avoid harassment, arrest and detention.[4] The Vietnam Reform Revolutionary Party (or Viet Tan) is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[5] In 2016, the government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism.[6] Other foreign-based opposition groups including the Brotherhood for Democracy, who campaign for human rights and democracy in Vietnam[7] and who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[8]
[3] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9.
[4] UK Home Office, 'Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019' (9 September 2019) p.9; Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
[5] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
[6] Associated Press, 'Vietnam declares San Jose-based Viet Tan a terrorist group' (7 October 2016).
[7] Human Rights Watch, 'Vietnam: Drop Charges Against Rights Campaigner' (10 September 2018).
[8] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.25.
In November 2019, Chau Van Kham, a Vietnamese/Australian dual citizen and a member of Viet Tan, was sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code)[9] and in March 2020 lost his appeal against his 12-year prison sentence for ‘financing terrorism.’[10] Chau Van Kham entered Vietnam on a false identity and was arrested in Ho Chi Minh City whilst meeting with a member of the Brotherhood for Democracy.[11]
[9] Australian Department of Foreign Affairs, 'DFAT Country Information Report Vietnam’ (13 December 2019) p.26.
[10] Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020).
[11] Ben Doherty, The Guardian, 'Jailed Australian democracy activist has 'disappeared' inside Vietnam's prison system', (7 June 2020); Special Broadcasting Service (SBS), ''Effectively a death sentence': Australian retiree imprisoned in Vietnam loses final appeal' (3 March 2020); Erin Handley, ABC, ‘Penny Wong raises Chau Van Kham case with Vietnamese President after UN finding he was 'forcibly disappeared'’, (30 June 2022).

Political prisoners are likely to be treated more harshly than ordinary inmates. A 2020 report by local NGO The 88 Project highlights the harsh conditions that the Vietnamese state has imposed upon political prisoners in recent years.[12] The report argues that ‘Vietnam has continued practices amounting to torture of political prisoners’ who have been detained or imprisoned.[13] According to the report, political prisoners are treated as a different class of person than ordinary inmates, receiving harsher treatment ‘which often amounts to torture and inhumane treatment’.[14] A US citizen recently released from incarceration in Vietnam after being charged with political offences also described being mistreated while in prison.[15]
[12] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.3.
[13] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.4.
[14] The 88 Project, ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018 – 2019’ (5 November 2020) p.7.
[15] Radio Free Asia, 'Recently Released US Citizen Describes Mistreatment in Vietnamese Prison' (28 October 2020); Orange County Register, 'American released from Vietnam prison speaks out, describes ordeal' (28 October 2020).
The Viet Tan Party is an opposition party run in exile which is considered by the Vietnamese government as a terrorist group.[16] Country information shows the Vietnamese government takes a strict stance against the organisation:
- Two Vietnamese have been convicted of ‘attempting to overthrow the people’s administration’ for among other things having received training and funding from Viet Tan abroad.[17]
- A Vietnamese-American was detained for nine months awaiting trial solely for being a member of Viet Tan.[18]
- 14 members of Viet Tan were convicted to between three and 13 years in prison for ‘subversion of the administration’ by actively participating in and being members of Viet Tan.[19]
Analysis:
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[20]
[20] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[21]
Inconsistencies in the applicant’s evidence
[21] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
In assessing what the applicant describes as “inconsistencies” in his evidence, the Tribunal is mindful of the following considerations surrounding credibility:
a.Firstly, the fact that a refugee claimant may “yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”.[22]
b.Secondly, a decision-maker’s rejection of some evidence, material or peripheral, relating to past or present facts, should not necessarily lead to the rejection of all of the claimant’s evidence;[23]
c.Finally, the exaggeration, or even fabrication of parts of a witness’ testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony.[24]
[22] Abebe v Commonwealth – Minister for Immigration and Multicultural Affairs v Eshetu (2000) 24(1) Melbourne University Law Review 190.
[23] International Association of Refugee Law Judges, Assessment of Credibility in Refugee and Subsidiary Protection Claims Under the EU Qualification Directive – Judicial Criteria and Standards, (March 2013) at [A.18].
[24] Guo v Minister for Immigration and Ethnic Affairs [1996] FCA 1263 at [26].
The fact that an appellant may be found to have given false evidence in some respects, does not mean that the remainder of the account is so affected. In this assessment, the Tribunal gives cumulative weight to the evidence provided, focussing its attention upon the applicant’s behaviour in Australia and the character references of his peers, spiritual leaders and community leaders.
Overall, the Tribunal finds that the applicant has given a reasonable account of why the inconsistencies exist and he has, within practicable reason, sought to correct those inconsistencies at the earliest possible opportunity.
Accordingly, the Tribunal does not weigh them against the applicant’s overall credibility.
Membership of Viet Tan
The Tribunal has had regard to the President's Directions and in particular the direction that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.
In tandem with the credibility of the appellant’s account of his circumstances is the question of whether he is in fact a bona fide member of the Viet Tan. There are two competing considerations in this regard which the Tribunal keeps to the front of its mind. The first is the ease with which a claim to adhere to certain personal beliefs can be fabricated. At the same time, the Tribunal is in no doubt as to the predicament for an individual trying to establish such a claim, given the internal nature of a such beliefs.
In resolving this issue, the Tribunal places weight upon the reference of [Mr D], [official] of the “Vietnam Reform Party, [stated] Chapter” (i.e. Viet Tan).[25] The Tribunal infers from this evidence that the [stated] Chapter of the Viet Tan accepts the applicant as a genuine member of the group, and that he shares its values and goals. The accepts this evidence and Tribunal is sufficiently persuaded that the applicant is, and would be perceived to be, a member of the Viet Tan in Australia.
[25] See: <>
The Tribunal is further satisfied that there is a real risk that the applicant could be identified as an active member of the Viet Tan and could potentially be further identified through his postings on [Social media] as a member of Viet Tan.
The applicant has reposted on his [Social media] opinions of an organisation that the Vietnamese government considers to be a terrorist group. Country information set out above shows that members of this group, both local residents and foreign nationals, are treated harshly in Vietnam. Country information indicates that the Vietnamese government did monitor protests and nationals living in Australia:
- Officials from the Ministry of Public Security are posted in Vietnamese embassies and consulates abroad and are given the task of monitoring the activities of overseas Vietnamese as well as Vietnamese citizens traveling abroad.
- Trusted members of the Vietnam Communist Party living abroad are often asked to report on their fellow Vietnamese to security officials. This is particularly the case with respect to university students.[26]
The Tribunal considers it likely that the Vietnamese government would have monitored the official [Social media] account of the Viet Tan which the Tribunal has identified as a public page with over 1.2 million “likes” with multiple postings made on it every day and the applicant has established that his photos have appeared on that account describing him as a member and as attending Viet Tan events.
The Tribunal is satisfied that the Vietnamese government could have identified the applicant as a member of Viet Tan. The Tribunal is satisfied that were the applicant to return to Vietnam under his own identity, the authorities could identify him and connect him to the ‘terrorist’ activities that he has undertaken in Australia. Considering the earlier mentioned country information on government action against members of Viet Tan, the Tribunal is satisfied that there is a real risk that the applicant will face significant harm were he to return to Vietnam.
The Tribunal is satisfied that the persecutor in this case, being the state of Vietnam which controls the entire territory of Vietnam, does not allow the applicant the opportunity to relocate nor seek state protection.
The Tribunal is satisfied that the risk the applicant faces is specific to him and is not one that is faced by the population generally.
The Tribunal is satisfied that the applicant cannot modify his behaviour to avoid the harm as the source of the risk is in his past behaviour which the Tribunal has found will be known to the Vietnamese state.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is satisfied that the applicant will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Vietnam now or in the reasonably foreseeable future.
Accordingly, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). The applicant’s fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that he will suffer significant harm.
Overall Conclusion:
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Matters 1908831 and 1906203
The delegate’s decisions in matters 1908831 and 1906203 both relate to an application for a Safe Haven Enterprise visa made on 31 October 2016. That application is invalidated by the judgment in DBB16 v MIDP [2018] FCAFC 178. The applicant has previously been notified of the invalidity.
DECISION: 2118231
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
DECISION: 1908831
The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise Visa and substitutes a decision that the visa application is not valid and cannot be considered.
DECISION: 1906203
The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise Visa and substitutes a decision that the visa application is not valid and cannot be considered.
Damian Creedon
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1030

31 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Jurisdiction