2120085 (Refugee)

[2025] ARTA 1518

2120085 (REFUGEE) [2025] ARTA 1518 (30 APRIL 2025)

DECISION AND  

REASONS FOR DECISION

Representative:  Ms Kate Hoang

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2120085

Tribunal:General Member L Hill

Date:30 April 2025

Place:Brisbane

Decision:The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration, in accordance with the orders that the applicants (first named applicant and second named applicant) meet s 36(2)(a) of the Migration Act.

Statement made on 30 April 2025 at 4:23pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – Viet Tan activities in Australia – online activities – particular social group – single mother – fear of detention – returned asylum seeker – physical assault – detention – lengthy stay in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decision made by a delegate of the Minister for Home Affairs on 22 December 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be nationals of Vietnam, applied for the visas on 3 December 2020. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.

3. The first named applicant appeared before the Tribunal on 24 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicants were represented by Ms Kate Hoang in relation to the review.

   BACKGROUND

5. The first named applicant is [an age]-year-old single female. She arrived in Australia [in] December 2012 on a [Student] visa. The first named applicant has provided to the Department a copy of the biographical/biodata page of her Socialist Republic of Vietnam passport. The second named applicant is [an age]-year-old child who was born in Australia on [date]. She the biological child of the first named applicant. A copy of the second named applicant’s Australian birth certificate has been provided to the Department.

   Evidence before the Department

6. The applicants lodged their application for protection visas with the Department of Home Affairs (the Department) on 3 December 2020. In summary, in the attached statement to the application for protection visas (‘2020 statement’), the first named applicant claimed that:

   ·She is seeking protection, so she does not have to return to Vietnam.

   ·She has not experienced any harm in Vietnam. Nor has she had to move to another part of the Vietnam to seek safety.

   ·She had come to Australia to study at university. She was the first one from her family to do this and they wanted to come and visit her. She never fitted in at university and found the language hard to understand.

   ·[Later], she met a boy ([Partner A]) who she fell in love with. They made plans to make a life in Australia. She fell pregnant but did not tell her parents.

   ·Three months after the birth of the second named applicant, [Partner A] (‘former partner’) left. He took all his belongings and left. She did not know why he left.

   ·When the second named applicant was approximately [age], she told her parents she had a child. Her family rejected the idea that she was a single mother and un-wed. Her father threatened her and told her never to return. She begged to return home but they refused her pleas.

   • She stated that as a single mother in Vietnam she will be viewed and treated as a lower class. She will be shunned by society. The government will also not provide her with any support. There are no support packages or safe houses for people like her. As her family has disowned her, she is afraid that the neighbours will find out and judge and mistreat her. Everywhere she goes she will be known as a single mother. She believes her and the second named applicant will be bullied. She has no money and if her parents don’t take her in, her and the second named applicant will be homeless and will have to live on the streets.
   • She is scared that on return, things will happen to her daughter, the second named applicant. The second named applicant only knows life in Australia. She will not understand why people are mean to her, why her mother cannot find work or why the children at school are laughing at her. The schools will also treat the second named applicant harshly because she doesn’t have a father.
   • She fears on return to Vietnam, they will be mistreated, abused, threatened and homeless. They will not be protected by anyone. She fears for hers and the second named applicant’s life. She does not want to return as she needs to protect the second named applicant from a society that mistreats, and judges’ people like them.
   • She does not think that the authorities of Vietnam will protect her on return.

7. In their application for protection visas, the second named applicant stated that she was not making her own claims for protection.

8. At the time of the delegate’s decision, no further information or supporting documents were received by the Department. The applicants were not interviewed by the delegate.

9. On 22 September 2021, the delegate decided to refuse to grant the applicants’ protection visas under s 65 of the Act. The delegate accepted that the first named applicant may encounter some discrimination on the basis of being a single mother on return. However, the delegate was not satisfied that there was any evidence to suggest that the discrimination she may face would be so significant that it amounts to persecution or that she would be harmed for any other reason. The delegate was also not satisfied that the second named applicant would be persecuted for any reason. The delegate was not satisfied that the applicants, would be persecuted for one or more the reasons in s 5J(1)(a) or that they would suffer significant harm as defined in s 36(2A). The delegate found that the applicants did not meet the refugee criterion in s36(2)(a) or complementary protection criterion in s 36(2)(aa).

   Evidence before the Tribunal

10. The applicants lodged their application for review with the Tribunal on 27 December 2021. A copy of the Department’s notification of refusal, decision record, biographical/biodata page of the first named applicant’s passport and Australian birth certificate for the second named applicant were also attached.

11. On 30 April 2024, in response to a request from the first named applicant, a Medicare letter was provided to the applicants. On 6 June 2024, the first named applicant provided new contact details.

12. On 31 October 2024, the Tribunal emailed the applicants a ‘Pre-hearing information form’ (pre-hearing form), advising that the matter was being prepared to be given to a Tribunal Member. They were asked to complete the form and return it to the Tribunal. To date, no response has been received from the applicants.

13. On 3 February 2025, in response to a request from the first named applicant, a Medicare letter was provided to the applicants.

14. On 20 February 2025, the Tribunal invited the applicants to attend a hearing at the Brisbane registry, scheduled for 14 March 2025. The applicants were asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal.

15. On 26 February 2025, the Tribunal received a completed ‘Response to hearing notice’ dated 20 February 2025 (first hearing notice). The applicants confirmed their attendance at the hearing and requested that [Mr A] appear as a witness to provide evidence in support of the “applicant’s participation in Viet Tan”.

16. On 27 February 2025, the Tribunal emailed the representative and asked her to complete an Appointment of Representative/Authorised Recipient’ form, if the applicants were requesting her to be appointed as their representative. That same day, the Tribunal received a completed and signed ‘Appointment of Representative/Authorised Recipient’ form. The representative also requested to appear at the hearing by video.

17. On 27 February 2025, the Tribunal emailed the representative and advised that her request to appear by video had been approved.

18. On 6 March 2025, the representative emailed the Tribunal and provided the following:

    ·Statutory declaration of the first named applicant dated 6 March 2025 (‘March 2025 Statement’), and

    ·A photo evidence book of 10 images evidencing the applicants’ activities with Viet Tan in Australia (‘Photo Evidence Book 1’).

19. In summary, in the March 2025 statement, the first name applicant reinstated her past experiences relating to her pregnancy and the birth of the second named applicant. The first named applicant also made the following new claims:

    Viet Tan

    ·In 2018, through media, newspapers, social media ([social media]) and some friends, she learned about the Viet Tan organisation. She reached out for social support and became friends with their members.

    ·Between 2018 and 2020, she learnt about human rights and politics and developed activism ideals. She became aware of the protection visa and decided to apply because of her circumstances as a single mother.

    ·Between 2020 and 2022, the Viet Tan did not hold any “public meetings or hang out” due to the COVID-19 pandemic.

    ·In around 2023, she connected with the Viet Tan in Melbourne and participated in fundraising dinners, helped with monthly [food 1] sales and attended gatherings at the [Temple 1]. She also carried a portrait of Dong Tien heroes, lit candles to pray for the release of Chau Van Kham and attended a talk by Viet Tan chairmen on territorial issues [specified].

    ·In December 2023, the applicants moved to Brisbane. The transition was challenging.

    ·Between 2023 and 2025, due to her responsibilities, she did not allocate much time to learning or participating in Viet Tan activities. However, she continued to follow and actively support the Viet Tan through social media.

    ·She states she is drawn to the Viet Tan because of the good work they do for the Vietnamese community. She has developed activism ideals and stands up for human rights. She firmly rejects the classification of Viet Tan as a terrorist organisation.

    ·She enjoys participating in Viet Tan activities and they have provided her with an opportunity to contribute to the promotion of human rights and help those in need.

    ·Her role within Viet Tan includes maintaining strong connections with friends in Vietnam an encouraging them to join the organisation, and advocate for human rights. She also actively shares Viet Tan articles and message on social media.

    ·She understands the risks associated with engaging in political activities that oppose the Vietnamese government. She is prepared to face these challenges and remains committed to using her voice to advocate for human rights in Vietnam.

    ·She believes if she is forced to return to Vietnam she will be in great danger and her freedom and hers and the second named applicant’s life will be threatened. She will face beatings, inhuman punishment and imprisonment by the Vietnamese authorities.

    Child of political activist

    ·She believes the second named applicant’s safety and well-being will be at serious risk if they are forced to return to Vietnam.

    ·Returning will completely disrupt the second named applicant’s life, making it difficult for her to adjust.

    ·The second named applicant was born in Australia and does not have a Vietnamese birth certificate. She fears the Vietnamese government will systematically discriminates against the children of political activists, making it impossible for her to obtain legal documentation.

    ·She fears the second named applicant will be in danger of becoming an orphan if she is imprisoned. The second named applicant will have no means to survive or support herself. People will be too afraid to care for her because they will fear they maybe labelled as accomplices by the government and subjected to persecution and harassment due to her association with the Viet Tan.

    ·The second named applicant’s primary language is English, and she is not fluent in Vietnamese. If they are forced to return, the second named applicant will struggle immensely with cultural and language barriers, particularly if they are separated. Vietnam lacks a reliable social welfare to ensure her well-being and support her needs.

20. On 6 March 2025, the representative emailed the Tribunal and requested that the witness, [Mr A] appear at the hearing by video. This witness wished to provide his evidence orally. That same day, the Tribunal responded and referred the representative to Part 6 of the ‘ART Practice (Common Procedures) Practice Directions 2024’ and the ‘Note for legal and other representatives’ and requested that if the applicants would like the Tribunal to consider evidence from a potential witness, a written statement needs to be provided. This statement should set out the potential witness’s evidence and a failure to provide a statement may result in the Tribunal refusing to take evidence from the potential witness.

21. On 7 March 2025, the representative emailed the Tribunal and provided the following:

    ·Letter of support from [Mr B], Viet Tan (Vietnam Reform Party QLD Chapter) dated [in] March 2025 (‘Support Letter of [Mr B]’)

22. On 10 March 2025, the Tribunal responded to the representative and advised that it had considered the letter of support and requested [Mr B] attendance as a witness by video. [Mr B] was asked to provide proof of identity and confirm his attendance.

23. On 11 March 2025, the representative emailed the Tribunal and advised that due to work commitments, [Mr B] was not available to attend the scheduled hearing and was unable to provide his identification. However, [Mr A] was available to attend as a witness by video. Attached to the email was the following:

    • Letter of support from [Mr A], Viet Tan (Vietnam Reform Party QLD Chapter) dated [in] March 2025 (‘Support Letter of [Mr A]’), and

    ·VIC Driver Licence for [Mr A].

24. On 11 March 2025, the Tribunal responded to the representative and advised that the Tribunal had considered the letter of support and requested [Mr A] attendance as a witness by video. [Mr A] was asked to provide a copy of his current membership of the Viet Tan in Victoria and confirm his attendance.

25. On 12 March 2025, the representative emailed the Tribunal and confirmed that [Mr A] was available to attend the scheduled hearing. Attached to the email was the following:

    ·Confirmation of membership of Viet Tan Melbourne Chapter from [Mr C] dated [in] March 2025 (‘Confirmation of membership of [Mr A]’),

    ·Extracts from DFAT Country Information Report Vietnam dated 19 February 2025,

    ·Online article, ‘Retired Sydney baker Chau Van Kham freed from Vietnamese prison, returns to Australia’ dated 11 July 2023,

    ·Online article, ‘The nature of the subjects participating in terrorist organisation “Viet Tan”’ dated 31 January 2019,

    ·Online article, ‘Notice on the terrorist organization “Viet Tan”’ dated 4 October 2016, and

    ·Online article, ‘Viet Tan officially listed as a terrorist organization” dated 8 October 2016.

26. On 13 March 2025, the representative emailed the Tribunal and provided the following evidence in support of the applicants’ claims:

    • A photo evidence book of 4 images and 4 [social media] posts for account ‘[name]’ evidencing first named activities with Viet Tan in Australia (‘Photo Evidence Book 2’).

27. On 14 March 2025, the Tribunal contacted the representative by phone and requested that given the second named applicant’s age and the sensitive nature of what was to be discussed, there was no need for the second named applicant to attend the scheduled hearing. The representative indicated she understood and would call the first named applicant to ensure there were care arrangements in place for the second named applicant. That same day, the first named applicant and second named applicant attended the Tribunal without a support person to care for the second named applicant. Given the absence of adequate care arrangements for the second named applicant, the Tribunal cancelled the hearing. The representative was advised of the reasons for the cancellation.

28. On 14 March 2025, the Tribunal emailed the representative and provided three dates and times (within school hours) for a rescheduled hearing. The first named applicant was asked to choose an appropriate date/time. The Tribunal again advised that the second named applicant did not need to attend nor provide evidence at any future scheduled hearing. If the second named applicant has her own claims for protection, these could be provided in writing prior to the scheduled hearing. That same day, the representative advised that the 24 March 2024 was a convenient time for the first named applicant.

29. On 14 March 2025, the Tribunal invited the first named applicant to attend a hearing at the Brisbane registry, scheduled for 24 March 2025. The first named applicant was asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal.

30. On 19 March 2025, the Tribunal received a completed ‘Response to hearing notice’ dated 18 March 2025 (second hearing notice). The applicants confirmed their attendance at the hearing and requested that [Mr A] appear as a witness to provide evidence in support of the “applicant’s participation in Viet Tan”. Attached to the email was the following:

    • Statement of the first named applicant (‘Hearing attendance statement’).

31. The hearing attendance statement was prepared in support of the first named applicant’s request to the Tribunal to reconsider its decision and allow the second named applicant to attend the scheduled hearing. In summary, the first named applicant made the request on the following basis:

    ·She has been a single mother since her child was three months old.

    ·She had difficulties caring for her child and turned to the “Viet Tan organization as the members of the organization supported [her], helped with housing and everything”.

    ·As a single mother, she has worked hard and has had to have the strength of a man to earn a living and raise a child at the same time. She feels lonely and sad, but her child brings her joy and happiness. Her child is a good and sensible child and always tries to study hard and understand her worries and hardships. Her child is there to comfort her.

    ·Her child has accompanied her in all her life and while it may be expected that a child may cause disruption during the hearing, she has no one to support and help her take care of her child. She needs to bring her child with her. Her child and her would do their best and behave appropriately at the hearing.

    ·Her child believes that during the hearing, she may be sent back or arrested. Her child cries a lot and is afraid that she won’t be there to take care of her.

    ·She hopes that the Tribunal will consider her circumstances and allow her, and her child (second named applicant) to attend the scheduled hearing.

32. On 20 March 2025, the Tribunal responded and advised that while it had considered the first named applicant’s request, it did not approve the attendance of the second named applicant and appropriate care arrangements should be made for the day of the scheduled hearing. The Tribunal also advised that it approved the representative and witness, [Mr A’s] attendance at the scheduled hearing by video.

1. On 24 March 2025, the first named applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. At the Tribunal hearing, the applicants’ claims were discussed.

2. On 7 April 2025, the representative emailed the Tribunal and provided the following:

   • Post-hearing statutory declaration of the first named applicant dated 6 April 2025 (‘Post-hearing statement’).

   Evidence provided at the Tribunal hearing

3. While it is not necessary to set out in full the first named applicant’s evidence at the Tribunal hearing, the core claims were discussed, and a summary is set out below.

   Personal background

4. The first named applicant was born in Nghe An province in Vietnam. She identifies her ethnicity as Kinh and her religion as ‘no religion’. She states she has never been married. The second named applicant is her biological daughter, [named]. The second named applicant was born in Australia in [year]. Her former partner, [Partner A] (former partner) is the father of the second named applicant.

5. The first named applicant was asked about her employment history. She confirmed that she never worked in Vietnam, only studied. After arriving in Australia, her parent’s business started to make a loss, and her father became ill, and they were unable to support her financially. She started to support herself by working in retail and as a cleaner. After she fell pregnant, she received a lot of support from her friends and members of the Viet Tan. They helped her with accommodation, childcare and employment. Currently, she is employed as [details deleted].

   Relationship with former partner

6. The first named applicant was asked about her relationship with her former partner. She stated that he left when the second named applicant was approximately three months old. They were living together but not getting along and he left. She has not had any contact with her former partner or his family since he left. Nor has he provided any financial support to assist her with caring for the second named applicant.

   Relationship with family in Vietnam

7. The first named applicant stated that her parents continue to live in the family home located in Nghe An province. When she was pregnant, she didn’t have much contact with them. After she gave birth, they did not want to talk to her. They said they wanted to disown her and told her not to come back. However, after they calmed down, they have reconnected. She was asked if the second named applicant speaks to her parents. She stated that her contact with them is simple in that she says hello. Overtime, she described how her parents have come to love the second named applicant, particularly given that she does not have a father. She was asked when she last spoke to her parents. She stated two weeks ago.

8. The first named applicant was also asked about her siblings in Vietnam. She confirmed she has [specified family members]. All her siblings are married. She remains in contact with one of her [sisters] who resides in Nghe An province with her children. They speak when [that] sister has free time. Usually, [that] sister is busy working and taking care of her children.

   Claims for protection

9. At the Tribunal hearing, the first named applicant was asked why she was unable to return to Vietnam. In summary, she stated that she will be in danger because she has been participating in Viet Tan activities. There were a lot of people in attendance at these activities. She can’t say whether people from the communist party had attended these activities and recorded her image.  She believes the Vietnamese government knows that she has participated and been involved in Viet Tan activities. The Vietnamese government considers the Viet Tan to be terrorists and anti-government. She has also been close with well-known members of the Viet Tan who feature [online]. These members fight to reveal the truth and anybody who is associated with them are considered anti-Vietnamese government. She believes because of her activities and association with well-known Viet Tan members as soon as she steps into Vietnam she will be arrested and jailed.

10. The first named applicant also explained that she worries about what will happen to the second named applicant on return to Vietnam. She worries that because of her activities with the Viet Tan the second named applicant may be harmed or placed in danger.

    Single mother

11. The Tribunal asked the first named applicant if she continues to have any fears relating to her profile as a single mother without support on return to Vietnam now or in the reasonably foreseeable future. She stated no. She does not have any fears on return as a single mother. Her fears arise because of her activities and close involvement with officials of the Viet Tan group. She believes on this basis she will be arrested and jailed.

    Child born in Australia

12. At the Tribunal hearing, the first named applicant became very upset when speaking about her fears for the second named applicant. She explained that the second named applicant has been born in Australia and does not know and has never been to Vietnam. The second named applicant has an Australian birth certificate and is not registered with the Vietnamese government. The second named applicant has been raised in Australia and only knows the culture and life in Australia. She is deeply worried about what will happen to the second named applicant if she is arrested and jailed. This will turn the second named applicant’s life upside down and impact her socially and psychologically. She believes the second named applicant will become an orphan because of her activities with the Viet Tan.

    New claims - political activities

13. Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence if it was not raised or presented before the primary decision was made, unless the Tribunal is satisfied that the first named applicant has a reasonable explanation why the claim was not raised, or the evidence not presented.

14. In summary, at the Tribunal hearing, the first named applicant explained that the migration agent/solicitor didn’t listen to her well enough to understand her matters with Viet Tan in the context of her claims for political asylum and this meant that she did not mention about her Viet Tan activities in the application for a protection visa. The Tribunal has considered the first named applicant’s explanation and is satisfied that the first named applicant has a reasonable explanation as to why the new claims were not raised, and why the new evidence was not presented before the primary decision was made. The first named applicant’s new claims are set out below.

15. At the Tribunal hearing, the first named applicant was asked to explain how she became involved with the Viet Tan. She stated that it was in approximately 2018, she learned about the Viet Tan via social media. A friend who had helped her out a lot and supported her was also member. She felt the urge to fight for truth and a better society. She started to go and assist the Viet Tan with their [event 1]. This was run on the first Sunday of each month. Proceeds from the [sales] were used to aid the Viet Tan’s fight. She would assist members by preparing, helping to cook, serving the food, cleaning up and organising the tables and chairs. The first named applicant was asked whether the [event 1] events were held inside or outside. She stated that the were held inside, at a Viet Tan’s members house. This member has a large garage which can hold a lot of tables and chairs. There is also a big kitchen where they cook the [food]. While helping the Viet Tan she started to adopt the same ideology and wanted to contribute more to the organisation.

16. The first named applicant was asked what other Viet Tan activities she participated and/or attended. She confirmed that she also attended events at the [Temple 1]. The temple was established by the free Vietnamese community. The temple held many people. She assisted at these events by preparing and serving the food. The first named applicant was asked why these events occurred. She stated that the Viet Tan would fundraise at these events. People would attend and provide money to help support the internal fight in Vietnam. It would help support the humanitarian prisoners who had been arrested and jailed and the group’s other activities.

17. The Tribunal discussed with the first named applicant the contents of the Photo Evidence Book 1 & 2. She stated that in relation to the Photo Evidence Book 1, the photos on pages 6 - 8 were taken on the same day. Photos on page 9, were taken on a different day at an event commemorating the death of Viet Tan heroes. She is not in any of the photos as she was assisting in the kitchen. The photo on page 10 is of the first named applicant with a child of a member of the Viet Tan. The photos on page 11 - 12 show the second named applicant at a Viet Tan event. This event was raising funds and asking for signatures for a petition which called for the release of Mr Chau Van Kham. There was also a talk by Viet Tan members at this event. She assisted with the organisation of the event with other members. In relation to the Photo Evidence Book 2, the photos on pages 1 - 4 were taken while she was helping at the [event 1]. She became very close to the woman in the photos. This woman is a member of the Viet Tan and together they prepared the food that was served to the guests. This woman helped her out a lot.

18. The first named applicant confirmed that between 2020 and 2022 due to the COVID pandemic the Viet Tan didn’t hold any public gatherings or “hang out”. The first named applicant stated that at the end of 2023, she moved from Victoria to Brisbane in Queensland. Since moving to Queensland, she has not had any time to participate in any Viet Tan activities in Brisbane. However, she described that deep inside, she remains committed to supporting the Viet Tan and participating in activities, when she can.

19. The Tribunal asked the first named applicant about the [social media] posts, she had provided in the Photo Evidence Book 2. She confirmed that the [social media] name is different to her official name, however, she stated that a lot of people know that this is her [social media] profile. She stated that the Vietnamese authorities follow and monitor social media very closely both inside and outside of Vietnam. If you post news and images involving the Viet Tan, you can be picked up and identified. She referred to the events involving Mr Chau Van Kham who was rarely posted on social media, but he was still identified by the Vietnamese authorities and arrested and jailed. She believes arising from her social media posts she will be identified by the Vietnamese authorities and arrested. It was put to the first named applicant that the [social media] profile picture did not appear to be a photo of her. She stated this was correct. It is a picture of a saint. You pray to this saint when you have problems or issues. This is why she has used this picture. She hopes this saint will listen to her prayers.

20. The Tribunal asked the first named applicant who founded the Viet Tan. She stated that as far as she knows it was Hoang Co Minh. This man and other Vietnamese patriots established the group. The first named applicant was asked what she understood the primary mission of the Viet Tan to be. She responded that it is a political organisation which opposes the communist party in Vietnam. They undertake activities to speak the truth and highlight the damaging activities taking place against the country and the people of Vietnam. They do this publicly and to be transparent. They want to fight for the Vietnamese people, society and the country. Under the leadership of the communist party, Vietnam is a different place. There is a lot of poverty and children drop out of school. There are also many people who are ill because they are unable to receive medical care. The Viet Tan raises its voice about these issues and what is true and right. She stated that as a Vietnamese person she wants to do something for her home country because people in Vietnam are poor and do not have a voice. The first named applicant was also asked whether she would continue to support the Viet Tan on return to Vietnam, and if so how. She responded that as soon as she returns to Vietnam because of her involvement she will be arrested and jailed. She will not need to do anything else.

21. Finally, in response to being asked whether her parents were facing any issues in Vietnam, the first named applicant stated that her parents are worried because she shares Viet Tan [social media] posts. The authorities have warned her parents and told them to talk to her and tell her not to engage in such activities and not to post and share such things. She was asked when her parents were spoken to by the Vietnamese authorities. She stated it was when she was participating in Viet Tan activities. The warning was made some time ago. The first named applicant was asked why this information had not been included in her March 2025 statement. She stated these activities are her own actions and she must bear the burden of them. Her actions are because of her own ideology, political opinion and desires and that is why she expresses them. Her actions should not affect her parents. Her parents are busy sustaining themselves and all her actions are personal to her. She does not want to get her parents into trouble and told them she would take care of things.

    Witness

22. [Mr A] (witness), a current member of the Viet Tan in Victoria, appeared before the Tribunal by video and provided the following evidence.

23. The witness was asked how he became a member of the Viet Tan. He stated that he heard about Viet Tan in 2015. At that time, he was being held in an immigration detention camp. In October 2016, he was released into the Australia community and resided with housemates who were members of the Viet Tan. He then moved to Melbourne. He researched the Viet Tan and joined the Melbourne branch in 2017. He has held many different positions and roles in the Melbourne branch. The witness was asked the difference between a member of the Viet Tan and someone who is involved/participates in Viet Tan events. He responded that official members participate in member only meetings. These are held once a month by each branch. Members also attend the annual summit where all branches meet. Other people participate as acquaintances of the Viet Tan group. They are involved in social and public activities. The first named applicant participated in these events. 

24. The witness confirmed that he first came to know the first named applicant in 2018/2019, through a mutual friend. This mutual friend was his former housemate. At that time, the first named applicant was in a relationship with his former housemate. His former housemate was a member of the Viet Tan Melbourne branch and would take the first named applicant to Viet Tan events. He last had contact with his former housemate approximately two to three years ago. At that time, his former housemate had stopped/withdrawn his involvement with the Viet Tan.

25. The Tribunal asked the witness what activities the first named applicant had been involvement with the Viet Tan. He confirmed that the first named applicant had been involved in the [event 1s]. This event was conducted on the [same day] of each month. She would prepare, cook and sell the [food 1].

26. The first named applicant also assisted at the annual Viet Tan fundraising event in March commemorating the death of Viet Tan heroes. She was involved in the preparation of the food which was provided to the guests who attended the event. Along with others, she also prayed for the heroes. The first named applicant was also involved in other public Viet Tan activities such as gathering signatures for a petition on the street. The petition sought to raise awareness and gain support for Viet Tan campaigns.

27. The Tribunal also asked the witness whether he was personally aware of the first named applicant’s involvement in any Viet Tan events since she had moved to Queensland. He stated he had spoken to the first named applicant about this and advised her that she could still participate in Viet Tan activities at the Viet Tan Brisbane branch. He also contacted [Mr B] who is a close acquaintance and a member of the Viet Tan and asked him to provide the first named applicant with any kind of help or assistance. He was asked what kind of help or assistance would be provided to the first named applicant. He stated that it wasn’t help or assistance as such, but the group actively recruits acquaintances and asked him to reach out to the first named applicant and invite her to participate in any events being held. He confirmed that he did not have any personally knowledge of the first named applicant’s attendance at any Viet Tan events since she had moved to Queensland as he is based in Melbourne.

28. Prior to concluding, the Tribunal asked the witness if there was anything further, he would like to add. He stated that the first named applicant has been a close acquaintance of the Viet Tan group. She hasn’t officially been made a member, but she has participated in activities akin to those that a member would. She had indicated that she wanted to apply to be a member but there is an official selection process and as part of this process they look at what time the person can provide to the group. The first named applicant’s situation as a single mother and her caring responsibilities means she does not have lot of time for Viet Tan activities, and her application was postponed.

29. The witness further stated that he fears the first named applicant’s involvement in many activities including those conducted in public has been flagged by the communist party and they are aware she is a close associate of the Viet Tan group. This would make her return to Vietnam very dangerous. The Vietnamese government considers the Viet Tan to be an anti-government group and is always on their radar and constantly monitored. He fears on return the first named applicant may face the same situation as Mr Chau Van Kham. The Vietnamese government knew he was returning to Vietnam and when he did, they arrested him and sentenced him to 12 years of imprisonment. He requested that the Tribunal consider all the factors including the first named applicant’s level of involvement with the Viet Tan and provide her with protection. He also asked the Tribunal to consider that as a single mother, if the first named applicant is arrested on return, nobody will be there to take care of her child (second named applicant).

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

30. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

31. 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.

32. 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).

1. 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.

2. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

4. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

5. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. 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

7. 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.

   COUNTRY INFORMATION

8. The Tribunal has considered the country information provided by the representative and the following relevant country information in reaching its decision.

   Political activities

9. In DFAT’s 2025 Country Information Report Vietnam, under the heading ‘Political Opinion (actual or imputed)’ it has been reported that:[1]

   3.66 The 2013 Constitution provides for freedom of opinion and speech, assembly and association. In practice, these rights are highly circumscribed, including through provisions of the Criminal Code (2015) that prohibit establishing or joining an organisation that acts against the government (Article 109); making, storing or spreading information for the purpose of opposing the state (Article 117); and abusing democratic freedoms to infringe upon the interests of the state (Article 331). Like other national security provisions of the Criminal Code (2015), these carry prison sentences of up to 20 years. The death penalty may also apply in some instances. Human rights organisations said these provisions were used to silence dissenting voices. In-country sources reported in October 2023 that state tolerance for dissent had declined in recent years.

   3.67  The CPV is the sole legal political entity in Vietnam – no other political entity can operate, and association with a political entity other than the CPV is prohibited (see also Country overview). Political expression that is critical of government policy or questions the legitimacy of the CPV is not tolerated.

   3.68  The CPV is estimated to have 5.3 million members. Membership can give better access to social and economic opportunities, particularly for senior positions in government (including local government), the judiciary and the military; party membership is a prerequisite for some positions. As Vietnam urbanises and its economy matures, more opportunities have become available for non-CPV members in the private sector. People can prosper economically without belonging to the party.

   3.69  Vietnam is sensitive to the activities of foreign-based dissident organisations led by members of the diaspora, including the Viet Tan, and considers such groups ‘reactionary’ (some, including the Viet Tan, have been proscribed by the Government of Vietnam as terrorist organisations). According to international media, Vietnam has targeted dissidents outside of its borders in recent years, including high-profile cases in Thailand and Germany (see also Enforced or involuntary disappearances). In-country sources reported in October 2023 that Vietnam monitored dissidents abroad and their families inside Vietnam, who had also been subjected to questioning about their relatives’ activities and travel plans. DFAT is aware of reports of Vietnamese state agents attempting to attend closed door conferences organised by organisations of this profile. According to in-country sources, the Government of Vietnam had sophisticated surveillance capabilities and was able to monitor dissidents abroad, including online. The Washington Post reported in October 2023 that Vietnam attempted to hack the mobile phones of members of the United States’ Congress and American journalists, among others.

   3.70  Vietnamese people living abroad who have an established record of criticising the party and government, particularly those who are prominent in the diaspora, have high-profile affiliations with dissident diaspora groups and/or have large online followings and networks in Vietnam, are likely to be known to, and have their activities monitored by, Vietnamese authorities. This may occur online and through party sympathisers and informants within the diaspora. Vietnamese people living abroad with a lower profile, including people attending public protests or expressing anti-government views, including online, are likely to be of significantly less interest, and their activities may not necessarily be known to the authorities.

   3.71  DFAT assesses people living in Vietnam who openly criticise the party or government face a high risk of official discrimination in the form of arrest and imprisonment on national security grounds. People with actual or imputed links to illegal political or dissident groups (e.g. the Viet Tan) face a high risk of official discrimination in the form of harassment, surveillance, interrogation, prosecution and imprisonment, and, where they are foreign nationals, being prevented from entering Vietnam or deported (including after completing a period of detention). DFAT assesses Vietnamese people living abroad of high profile and with established records of political activity considered hostile by Vietnam face a high risk of official discrimination in the form of state surveillance and, should they return to Vietnam and continue to be openly critical of the party or government, a high risk of arrest and imprisonment.

   [1] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

10. Under the heading ‘Viet Tan’, DFAT has reported:[2]

    3.82  The Viet Tan (‘Vietnam Reform Party’) is a diaspora organisation promoting multi-party democracy in Vietnam. The Viet Tan is headquartered in the United States. According to its official website, the Viet Tan is organised into local chapters and receives strategic direction from a Central Committee led by the group’s chair, currently Ly Thai Hung, an American national. The Viet Tan has origins in the National United Front for the Freedom of Vietnam, which comprised former South Vietnamese leaders, and reinvented itself as a non-violent movement in 2004. In-country sources reported in October 2023 that the CPV considered the Viet Tan a threat to its legitimacy and rule.

    3.83  The Viet Tan was proscribed as a terrorist organisation by the Government of Vietnam in October 2016. As a proscribed entity, it is outlawed in Vietnam and does not have an open presence there. The MPS considers anybody who participates in the Viet Tan or who lures or incites others to participate in the Viet Tan; sponsors or receives sponsorship from the Viet Tan; attends training courses organised by the Viet Tan; or places themselves at the Viet Tan’s direction to be an accomplice and sponsor of terrorism. In-country sources said that, given its terrorist designation, anybody suspected of belonging to the Viet Tan would face a high risk of arrest. According to in-country sources, a Vietnamese citizen abroad with an established pattern of behaviour posting online material supportive of the Viet Tan would likely be questioned on return, should their online activity become known to the authorities. 

    3.84  The Viet Tan is an extremely sensitive topic in Vietnam and there are no known members inside the country (all known members are based abroad). The Viet Tan’s chair and general secretary are based in the United States, with representatives in several other countries, including Australia. The Viet Tan operates lawfully in Australia as an advocacy group. The Viet Tan is not listed as a terrorist organisation in Australia. At the time of publication, DFAT was unable to obtain authoritative information on the Viet Tan’s recruitment processes and how membership could be obtained.

    3.85 In January 2019, an Australian national reportedly belonging to the Viet Tan was detained in Vietnam and charged with ‘terrorism to oppose the people’s government’ (Article 113 of the 2015 Criminal Code) and entering Vietnam illegally from Cambodia. The Government of Vietnam accused the individual of luring and training others to participate in the Viet Tan for the purpose of conducting terrorism and sabotage. They were sentenced to 12 years’ imprisonment in November 2019 (five other defendants, all Vietnamese nationals, received prison terms of between three and 11 years). The Australian national returned to Australia via an international prisoner transfer and was released in July 2023 before their original prison term expired.

    3.86  DFAT assesses a known or suspected member of the Viet Tan, as a proscribed terrorist organisation, would face a high risk of official discrimination in the form of arrest and imprisonment, including on terrorism charges, in Vietnam. As noted under Political Opinion, people with actual or imputed links to illegal political or dissident groups like the Viet Tan face a high risk of harassment, including in the form of surveillance, and interrogation, arrest, prosecution and imprisonment on national security grounds. People meeting this profile could be prevented from entering Vietnam or may be deported, including after a period of detention (see also Conditions for returnees).

    [2] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

11. In relation to social media usage, relevantly under the heading, ‘social media users’, DFAT has reported:[3]

    3.97  Vietnam has one of the highest proportions of Internet users in the world. Social media usage is widespread (approximately 80 per cent of the population) and represents the primary source of news for many Vietnamese. [social media] is particularly prevalent, with over 70 million users. YouTube, Instagram, TikTok and Zalo (a local messaging application) are also popular tools for accessing news and circulating information. In-country sources reported that the Government of Vietnam was wary of social media’s potential to challenge the state’s narrative on contentious issues and organise protests, and that it regularly pressured social media companies to remove critical accounts, posts and videos. The Government of Vietnam blocks websites considered politically sensitive, including the websites of foreign-based dissident groups and some foreign news services, including the BBC. In-country sources, speaking in October 2023, said these websites could be accessed through Virtual Private Networks (VPNs).

    3.98  While people enjoy relatively more freedom online, the state monitors social media activity. In-country sources reported in October 2023 that former prisoners of conscience, human rights defenders and people with large online followings, including influencers (also known in Vietnam as Key Opinion Leaders, or KOLs) were most likely to have their social media activity monitored. However, these sources also said the state’s online surveillance capabilities were broad, sophisticated and efficient, and social media users of low profile could also attract state attention based on the use of certain words in their posts (including retrospective posts). People who express critical views of the party or government online over a period of time, including those of a lower profile, were often arrested and convicted, usually for conducting anti-state propaganda or abusing democratic freedoms. According to in-country sources, monitoring of online activity had increased between 2021 and 2024, and the scope for freedom of expression online had narrowed in this time – where it occurred, criticism was more likely to be subtle and indirect. 

    3.99 In 2023 and 2024, international media reported numerous instances of social media users being imprisoned on national security grounds (invariably under Articles 117 or 331 of the 2015 Criminal Code) for posting material deemed critical of the party, government (including local government, law enforcement and the judiciary) and Vietnam’s political leadership. Prison sentences ranged from two to eight years, and supervised probation was also applied in some cases. A number of journalists belonging to online-based media outlets have also been imprisoned for posting critical content. DFAT is aware of instances of people being arrested and imprisoned for social media posts critical of the Government of Vietnam’s handling of the COVID-19 pandemic. As is the case offline, online content promoting human rights or multi-party democracy, content critical of state policies, and content considered defamatory of the political leadership and state institutions (including corruption allegations) is highly sensitive. Financial penalties may also be applied for posting content deemed inappropriate or negative, and some activists are known to have had their social media accounts blocked or hacked.

    3.100 The Law on Cybersecurity (2018) requires technology companies active in Vietnam to store user data locally and remove ‘unlawful or false information’ that infringes on national security, social order and safety, and the lawful rights and interests of agencies, organisations and individuals. It prohibits the use of cyberspace to, inter alia, organise and manipulate people to oppose the state; distort history and deny revolutionary achievements; and provide false information that causes confusion among the people. Breaches of the Law on Cybersecurity (2018) are subject to financial penalties and/or criminal prosecution, depending on the seriousness of the breach. International observers say these definitions are ambiguous and afford the Government of Vietnam wide-ranging discretion to determine what content should be censored; if interpreted liberally, they could be applied to any criticism of the state, economy or an individual’s private life.

    3.101 The implementing decree (Decree 53) of the Law on Cybersecurity (2018) came into effect in October 2022, requiring technology companies to remove content deemed unlawful or false by the Government of Vietnam within 24 hours of an official request. In-country sources said compliance rates with Decree 53 were high. In response to Government of Vietnam requests, between July 2022 and June 2023, United States-based social media company Meta restricted 3,140 items (nearly all were [social media] posts) – a significant increase on previous reporting periods. According to Vietnam’s Ministry of Information, in the first six months of 2023, [social media] removed 2,549 posts and 12 accounts; YouTube removed 6,101 videos and seven channels; and TikTok removed 415 links and 149 offending accounts.

    3.102 A non-binding National Code of Conduct for Social Media issued in June 2021 (‘Decision 847’) encourages social media users to post positively about Vietnam. International media reported in 2023 that the Government of Vietnam was considering introducing regulations requiring all social media account holders to identify themselves, and for Internet Service Providers to block from the Internet anybody who shares illegal content, although such regulations had not been introduced at the time of publication. In February 2024, the government launched social listening software with AI integration (‘Socialbeat’) to monitor, track and analyse in real time over 1 billion online items per day in Ho Chi Minh City, including content posted on [social media], Instagram, X (formerly Twitter) and YouTube. Ho Chi Minh City’s Department of Information and Communications said Socialbeat would help it better understand the opinions and needs of citizens and business in the city.

    3.103 In-country sources alleged in October 2023 that a Government of Vietnam cyber force known as ‘Force 47’ (also known as ‘Regiment 47’, ‘AK47’ or ‘e47’) monitored online discussions and trolled people who posted negative or misleading information about Vietnam. Reports suggest Force 47 was established in 2016 or 2017 and comprises 10,000 members (‘cyber soldiers’), drawn primarily from the Ho Chi Minh Communist Youth Union. In-country sources alleged that Force 47 hacked critical social media accounts and planted malware on the computers and mobile telephones of activists.

    3.104 Vietnamese people living abroad may also have their social media monitored, particularly people of high profile who are critical of the party and government, such as: people who hold leadership positions and have influence in the diaspora; have known affiliations with dissident diaspora groups; organise public protests against the party or government; and/or have large online followings and networks in Vietnam. Vietnamese people living abroad with a lower profile, including people attending public protests or expressing anti-government views, including online, are likely to be of significantly less interest (see also Political Opinion).

    3.105 DFAT assesses social media users inside Vietnam who openly criticise the party or government and/or promote human rights and multi-party democracy face a high risk of official discrimination in the form of arrest and prosecution, especially those with a pattern of such activity and/or large online followings. The majority of social media users in Vietnam are able to use online platforms without incident, although with the awareness that content is being monitored and regulated. Vietnamese people living abroad who use social media to openly criticise the party or government and/or promote human rights and multi-party democracy face a high risk of official discrimination in the form of arrest and prosecution should they continue to use social media for these purposes on their return to Vietnam and their activities became known to the authorities. DFAT assesses social media users and bloggers generally do not face societal discrimination.

    [3] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

1. The UK Home Office, Country Policy and Information Note Vietnam: Opposition to the state, under the hearing ‘Internet, social media and bloggers’ it has been reported that:[4]

   2.1.1 In 2013 Decree 72 was issued on the management, provision and use of Internet services and online information.[5] In 2018 the law on cybersecurity was introduced.[6]

   12.1.2 The 88 Project noted that:

   ‘Article 16 of the 2018 Law on Cybersecurity contains vague prohibitions against criticism of the government and requirements to remove offending information within 24 hours. The law also requires foreign enterprises to store user data in Vietnam and to provide user information to the authorities upon request. The law has faced criticism from human rights organizations for the sweeping powers it gives the government over the internet and internet users.

   ‘Article 5 of Decree 72, introduced in 2013, prohibits a broad range of vaguely defined terms including “opposing the State” and “sabotaging the great national unity bloc.” A draft amendment to Decree 72 submitted in 2021 sought to expand social media regulations by requiring any account, fan page, or channel with over 10,000 followers to provide the Ministry of Information and Communication with the contact details of the administrator. The draft also assigned responsibility to account users and page owners to monitor user comments and remove “illegal” content within three hours of request.’[7]

   [4] UK Home Office, Country Policy and Information Note Vietnam: Opposition to the state (Report, August 2023).

   [5] [Decree No. 72/2013/ND-CP of July 15, 2013 on the management, provision and use if internet services and online information] (Vietnam), 15 July 2013.

   [6] Law on Cyber Security (Vietnam), 12 June 2018.

   [7] The 88 Project, Human Rights Report 2021 (Report, 9 May 2022).

   Child born in Australia

2. In DFAT’s 2025 Country Information Report Vietnam, under the headings ‘Conditions for returnees’ and ‘Birth, death and marriage certificates’ it has been reported that:[8]

   …

   5.54 Returnees, as Vietnamese citizens, are eligible for health insurance, and may receive free or subsidised coverage (as well as other forms of social assistance) depending on their financial particulars. Returnees are also eligible to participate in the public social insurance scheme, which is typically contingent on finding employment in the formal sector. To access these and other government services, returnees, like anybody else, require a valid identity card and household registration. DFAT is not aware of returnees having citizenship revoked or being denied access to rights available to other Vietnamese citizens.

   5.55 Children born abroad to parents seeking asylum whose births are registered and are Vietnamese nationals can access government services like any other citizen of Vietnam (see also Passports). Like their parents, they would generally not encounter official or societal discrimination, including with respect to their ability to obtain household registration (which would be linked to their parents) and access government services.

   …

   5.58 Births, deaths and marriages must be registered in accordance with the Law on Civil Status (2014). Registration requests can be submitted directly to a civil status registration agency, by post or via an online civil status registration system (the latter can be accessed through national or provincial public service portals). Communes maintain civil and vital events registers of births, deaths and marriages of commune residents, which are reported to district, provincial and national levels. Vietnam’s Ministry of Justice maintains a consolidated digital national civil status database.

   5.59 Under the Law on Civil Status (2014), births must be registered within 60 days of the birth. At the time of the 2019 census (Vietnam’s most recent), 98.8 per cent of births were registered (99.3 per cent in urban areas, 98.5 per cent in rural ones). The 2019 census recorded the lowest rates of birth registration in Ha Giang and Lai Chau provinces (93.1 and 93.2 per cent, respectively), remote, mountainous areas populated primarily by ethnic minorities. Birth certificates are required to access government services for children, including healthcare and education. A household registration is required to obtain a birth certificate.

   5.60 Applications for birth registrations of Vietnamese children born abroad, or the reissuance of original birth certificates for Vietnam-born citizens based abroad, can be processed through a Vietnamese diplomatic or consular mission in the relevant country.

   [8] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

   REASONS AND FINDINGS

3. The issue in this case is whether the applicants meet the criteria for the grant of protection visas. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.

   Country of reference (and receiving country)

4. The first named applicant provided the Department and Tribunal with a copy of the biographical/biodata page of her Socialist Republic of Vietnam passport and the Australian birth certificate for the second named applicant. DFAT has reported that ‘The Law on Vietnamese Nationality (2008)’ considers a child born inside or outside Vietnam whose parents were Vietnamese citizens at the time of the child’s birth to be a national of Vietnam.[9] Based on the information before it, the Tribunal is satisfied that the applicants are nationals of Vietnam. There is no evidence before the Tribunal to suggest that the applicants have citizenship of any other country, or that they have a right to enter and/or reside in any third country. Based on the information before it, The Tribunal is satisfied that s 36(3) does not apply. The Tribunal finds that the receiving country is Vietnam; and on this basis the applicants’ claims have been assessed against Vietnam.

   [9] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

   Do the applicants satisfy the refugee criterion for protection?

   First named applicant

5. The Tribunal found the first named applicant to be a generally credible and honest witness at the Tribunal hearing. The first named applicant’s oral evidence was detailed and persuasive. Relevantly, she was able to speak with confidence about her views and support for the Viet Tan including how her political opinion had been formed. Her evidence regarding her views, involvement and support for the Viet Tan were also consistent with the documentary evidence including the two support letters and the oral evidence provided by the witness at the Tribunal hearing.

6. The Tribunal accepts the first named applicant has attended and participated in Viet Tan events and activities, including associating and assisting publicly, members of the Viet Tan. The Tribunal also accepts that she has publicly shared Viet Tan posts on her [social media][social media] page and assists with the administration of [social media] pages. The Tribunal accepts that the first named applicants’ involvement in such activities is an expression of her political opinion and views. It follows, that the Tribunal finds that the first named applicant holds pro-Viet Tan opinions and/or views. In reaching its findings, the Tribunal has placed significant weight on the documentary evidence provided in the Photo Evidence Book 1 & 2, the two letters of support and the oral evidence of the witness. The Tribunal is also prepared to accept that arising from the first named applicant’s activities in support of the Viet Tan, her parents have been warned by the Vietnamese authorities. While the Tribunal has some concerns about why the first named applicant did not disclose this information in her March 2025 statement, the Tribunal considers such concerns to be relatively minor, when weighted against the rest of the evidence regarding her activities in support of the Viet Tan, which the Tribunal has accepted as credible.

7. The Tribunal has had regard to s 5J(6), which states that conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the decision maker that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. Arising from the evidence presented, the Tribunal is satisfied that the first named applicant’s conduct in Australia, that being her attendance and participation in Viet Tan events and activities and her social media activities are an expression of her political opinion and views. In this respect, the Tribunal finds that the first named applicant’s conduct in Australia has been undertaken otherwise than for the purpose of strengthening her claims for protection. The Tribunal, therefore, is not required to disregard this conduct in assessing whether the first named applicant has a well-founded fear of persecution.

8. To establish if there is a well-founded fear of persecution, s 5J(1)(b) requires a finding whether there is a real chance that the person would be persecuted if returned to the receiving country, now or in the reasonably foreseeable future. To establish there is a well-founded fear of persecution there must be a real chance of it occurring. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility A person can have a well-founded fear of persecution even though there is only a 10 per cent chance that they will be persecuted. [10] Section 5J(4)(b) requires decision makers to consider whether the persecution involves serious harm. Section 5J(5) defines ‘serious harm’ for the purposes of s 5J(4)(b) and sets out a non-exhaustive list of types and levels of harm that will meet the serious harm threshold.

   [10] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62.

9. In summary, the first named applicant fears that arising from her engagement in “political activities that oppose the Vietnamese government”, on return to Vietnam, she will be in great danger. Her life and the second named applicant’s freedom will be threatened. She will face beatings, inhumane punishment, and the Vietnamese authorities will imprison them.

10. In this case, the Tribunal has found that the first named applicant holds pro-Viet Tan opinion and/or views. She also has participated in Viet Tan activities and promoted the Viet Tan on social media. In summary, the country information above reports that the Viet Tan was proscribed as a terrorist organisation by the Government of Vietnam in October 2016, and sources indicate that the Vietnamese state’s online surveillance capabilities are broad, sophisticated and efficient, and has been known to monitor dissidents abroad.[11] The Tribunal finds that if the first named applicant was to return to Vietnam, the possibility of her political activities and/or her opinion and/or views becoming known by the Vietnamese state and her harmed on this basis to be likely and not remote, insubstantial, or far-fetched. Accordingly, the Tribunal finds there is a real chance of the first named applicant facing harm on account of her pro-Viet Tan political activities and/or opinion and/or views, on return to Vietnam, now or in the reasonably foreseeable future.

    [11] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

11. Section 5J(4)(b) requires decision makers to consider whether the persecution involves serious harm. The Tribunal places significant weight on the DFAT report above which states that people with actual or imputed links to illegal political or dissident groups like the Viet Tan face a high risk of office discrimination in the form of harassment, surveillance, interrogation, prosecution and imprisonment. Additionally, it has been reported that Vietnamese people living abroad who use social media to openly criticise the party or government and/or promote human rights and multi-party democracy face a high risk of official discrimination in the form of arrest and prosecution should they continue to use social media for these purposes on return and their activities become known. There is also information which indicates that a Vietnamese citizen abroad with an established pattern of behaviour of posting online material supportive of the Viet Tan would likely be questioned on return, should their activity become known to the authorities. Finally, it has been reported that as proscribed entity, returnees with known affiliations to the Viet Tan, including through activity on social media and involvement in Viet Tan meetings and demonstrations, would be of interest to the authorities, and may encounter questioning and surveillance on return.[12]

    [12] UK Home Office, Country Policy and Information Note Vietnam: Opposition to the state (Report, August 2023) and Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

12. Given the first named applicant’s profile and the country information above, the Tribunal finds the first named applicant faces a real chance of questioning, harassment, surveillance, interrogation, and may be arrested and charged with a crime under Vietnamese law and imprisoned on return to Vietnam. The Tribunal finds that this would amount to serious harm of the kind contemplated by s 5J(5).

13. The Tribunal finds that the first named applicant would face persecution for the essential and significant reason of her pro-Viet Tan political opinion and/or views, and that the persecution involves systematic and discriminatory conduct (s 5J(4)(a) and (c)). In this case, given that the persecutor would be the Vietnamese state, the Tribunal finds that effective protection measures are not available to the first named applicant on return (s 5J(2) and s 5LA) and the real chance of persecution relates to all areas of Vietnam (s 5J(1)(c)).

14. Finally, s 5J(3) requires a decision maker to consider what reasonable steps a person could take to modify their behaviour to avoid the real chance of persecution. In this case, the Tribunal finds that it would not be reasonable for the first named applicant to take steps to modify her behaviour, as to do so would require her to alter or conceal her true political beliefs: s 5J(3)(c)(iii). It follows, that the Tribunal finds that there are no reasonable steps which the first named applicant could take to modify her behaviour to avoid a real chance of persecution in Vietnam.

15. For the reasons given above, the Tribunal finds that the first named applicant has a well-founded fear of persecution should she return to Vietnam, now or in the reasonably foreseeable future.

    Second named applicant

16. The second named applicant is [an age]-year-old Vietnamese national born in Australia. In summary, it has been contended that a return to Vietnam would disrupt her life. As a result of being born in Australia, the second named applicant does not have a Vietnamese birth certificate and the Vietnamese government will systematically discriminate against her, as a child of a political activist, making it impossible for her to obtain legal documentation. It was also contended that Vietnam lacks a social welfare system to ensure the second named applicant’s well-being and support her needs.

17. In summary, the country information above, confirms that a birth certificate is required to access government services for children, including healthcare and education. Household registration is required to obtain a birth certificate. DFAT reports that applications for birth registration of a Vietnamese child born overseas can be processed through the relevant diplomatic or consular mission in the relevant country. Notwithstanding this, there is also information that people with actual or imputed links to dissident or political groups may be denied entry to Vietnam and/or prevented from departing Vietnam. Activists and state critics may be prevented from leaving for abroad, including through the non-issuance of new passports and confiscation of current passports.[13] Moreover, it has been reported that in the past, the four children of two Vietnamese failed asylum seekers, who were sentenced to three years imprisonment, were to be sent to an orphanage, in circumstances where the extended family could not afford to care for them. A last-minute reprieve spared the Vietnamese mother from imprisonment, enabling her to care for her children until her husband’s release.[14]

    [13] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).

    [14] Mai Hoa Pham and Shirley Glaister, ‘Turned back by Australia, this family had detailed its ‘crushing’ journey to asylum’, SBS Vietnamese (online, 7 December 2023) <>

    For the reasons set out above, the Tribunal has accepted that the first named applicant, the second named applicant’s biological mother, faces a real chance of questioning, harassment, surveillance, interrogation, and may be arrested and charged with a crime under Vietnamese law and imprisoned on return to Vietnam. Given the circumstances of this case, and the country information above, the Tribunal finds, the second named applicant faces a real chance of separation from her sole care giver or detention alongside her mother, the first named applicant on return to Vietnam. The Tribunal is satisfied that this would amount to serious harm of the kind contemplated by s 5J(5).

18. Having regard to s 5K, the Tribunal finds that the second named applicant would face persecution for the essential and significant reason of her membership of a particular social group consisting of family and that the persecution involves systematic and discriminatory conduct (s 5J(4)(a) and (c)). In this case, the persecution of the second named applicant is not because the Vietnamese state believes the second named applicant has the same political opinion as her mother, but rather, she will be persecuted because of her relationship to her mother. Having regard for the country information above, in this case, given that the persecutor would be the Vietnamese state, the Tribunal finds that effective protection measures are not available to the second named applicant on return (s 5J(2) and s 5LA) and the real chance of persecution relates to all areas of Vietnam (s 5J(1)(c)).

19. Finally, s 5J(3) requires a decision maker to consider what reasonable steps a person could take to modify their behaviour to avoid the real chance of persecution. In this case, the Tribunal finds that it would not be reasonable for the second named applicant to take steps to modify her behaviour, as to do so would require her to change or conceal an innate characteristic, that being her familial relationship to her mother, the first named applicant: s 5J(3)(b). It follows, that the Tribunal finds that there are no reasonable steps which the second named applicant could take to modify her behaviour to avoid a real chance of persecution in Vietnam.

20. For the reasons given above, the Tribunal finds that the second named applicant has a well-founded fear of persecution should she return to Vietnam, now or in the reasonably foreseeable future.

    Conclusion

21. For the reasons given above, the Tribunal is satisfied that each of the applicants (first named applicant and second named applicant) are persons in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).

    DECISION

22. The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that the applicants (first named applicant and second named applicant) meet s 36(2)(a) of the Migration Act.

    Date of hearing:                   24 March 2025

    Representative:  Ms Kate Hoang

    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.

    …