2120132 (Refugee)

2120132 (Refugee) [2023] AATA 2373 (2 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906524 & 2120132
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nora Lamont
DATE:2 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits matters 1906524 and 2120132 for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that applicants [two], [four], [five] and [six] satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
(iii)that applicant [three] [Applicant 3] the Tribunal has no jurisdiction.

Statement made on 02 March 2023 at 2:06pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – religion – Catholic – house church attendee – political opinion – member of Viet Tan – failed asylum seeker returning to Vietnam – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 August 2017 and on 18 December 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 31 August 2016 and 30 September 2020.
The applicants appeared before the Tribunal on 20 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] a Viet Tan member. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to their review and the representative attended the hearing.
There are no non-disclosure Certificates on the applicant’s file.
[Applicant 3] is listed in this decision record, and he should have been removed prior to this review and at the primary stage of this application at the Department. He is the brother-in-law of the primary applicant and has his own application. Therefore, I have found this Tribunal does not have jurisdiction on his application.
Application 1906524 has the primary applicant, [Applicant 3], the applicant’s wife and children. The second application which has the same claims has only the applicant, wife and one son listed as applicants.
The applicant’s migration history is as follows: [1]
[1] [File number]
[Date]/04/2013 Arrived on a boat codenamed ‘[deleted]’
16/05/2013 Attended Entry Interview
25/05/2013 Screened in
07/04/2015 s195A Ministerial Intervention (MI) request commenced to consider lift s46A bar
08/04/2015 MI outcome – s46a bar lifted
09/04/2015 First Bridging Visa E granted until 09/04/2016
09/04/2015 Subclass 449 Humanitarian Stay (Temporary) visa granted until 16/04/2015
02/03/2016 s46a bar lifted by the Minister for the purpose of granting a further Bridging Visa E
17/03/2016-
21/09/2016 Multiple Bridging Visa E granted
07/09/2016 s46a bar lifted by the Minister for the purpose of granting a further Bridging Visa E
31/08/2016 Lodged first Safe Haven Enterprise Visa (SHEV) application [number]
20/07/2017 Attended interview to discuss first TPV application
28/08/2017 First SHEV application refused
31/08/2017 Review of SHEV refusal decision commenced at IAA
30/10/2017 IAA affirmed refusal decision
[Date]/11/2017Judicial review commenced in the Federal Circuit Court (FCC SYD – [deleted])
01/12/2017 Bridging Visa E granted
[Date]/12/2018 Judicial review outcome- Minister withdraw
22/02/2019 Re-notification sent for refusal decision. The applicant was affected by DBB16
judgement made on 06/08/2018. The applicant was re-notified of the refusal decision and informed that he may seek review of the decision by the Administrative Appeals Tribunal (AAT)
19/03/2019 Review of SHEV refusal decision commenced at the Administrative Review Tribunal
04/09/2020 Application invalid notification sent
18/09/2020 Minister lifts s91L/48B bar and notice under the Migration Act 1958 sent
30/09/2020 Valid Safe Haven Enterprise Visa (SHEV) application lodged (Current application
[number])
13/10/2020 Bridging Visa E granted
06/10/2020 Request for documents under subsection 91W of the Migration Act 195834
13/07/2021 Interview invite sent by email
27/07/2021 Attended a video conference interview to discuss his SHEV application
The applicant and his wife arrived by boat at Darwin [in] April 2013. They have remained in Australia continuously since then. When they arrived, they did not have any documentation with them. The Department assessed that they were Vietnamese nationals and assessed their claims against Vietnam as their receiving country. The Tribunal has therefore assessed their claims against Vietnam.
There is no evidence before the Tribunal to suggest that the applicants have a right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicants will be harmed in Vietnam based on the primary applicant’s religion and political opinion. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s claims can be summarised as follows: [2]
·The applicant is a Catholic.
·He attended Church houses in Nghe An.
·In July 2012 a mass raid took place at his place of worship and he was taken to the police station and forced to sign a document.
·He was released the next day, but he was subsequently summonsed to the police station.
·The applicant went into hiding until he left for Australia.
·His family was harassed.
·He has attended Vietnamese rallies in Australia.
·He would return as a failed asylum seeker.
[2] AAT Folio.
Prior to the Tribunal hearing and at the Tribunal hearing the applicant added the claim:
· He is a member of the Viet Tan.
Submissions
The Tribunal has the following submissions before it:
·    Letter from [the first applicant] (Viet Tan).
·    Letter from [Mr A] (Viet Tan).
·    Photo evidence booklet.
·   Letters from the Vietnamese Catholic Community, [name] Church and the Vietnamese Community Australia.
·    Photos of the applicant’s political activity.
·    Legal submission from the Representative.
Tribunal Hearing
At the Tribunal hearing the applicant said that he was born in Nghe An and lived there from [year] until 2007 when he went to the south of Vietnam to live and work. He said he went to Ho Chi Min City, and he [worked].
The applicant said on 1 July 2012 he was going to church and praying and reading the Bible when the authorities came and beat him and took him away. He said they were praying in a small Chapel in [location]. I asked why he was in a small Chapel and not a Church and he said it was because the Church was far away from the village.
The applicant said that the Chapel is owned by a resident and the authorities did not want a Chapel or Church or people doing Mass. He said the priest would travel to the Chapel to say Mass on Sundays and about 100 or 200 people would attend.
The applicant said the Church which was far away was registered with the authorities, but the Chapel was not. I asked how many Catholics lived in his home area and he said in his home village there were a lot of Catholics. He said he was baptised as a baby and was in a youth group. He also went to Church in Ho Chi Min City, and he now attends Church in [Queensland].
We spoke again about the 2012 incident. He said on the day the priest had not yet arrived and there were many undercover police in the Church but uniformed police outside the Church.

The undercover police started making a disturbance, so the police outside came in. They beat the applicant and they beat everyone and caught people and put them in their cars.
The applicant became emotional when he was talking about when he was at the police station. He said they accused him of a public disturbance. They beat him and made him sign the public disturbance document. When they let him go, they just dropped him on the road and his body was covered in bruises. He went to his parents’ house and stayed there overnight. The next day he went to the North of Vietnam and rented a room. He then got a job in a [workplace]. He was there for 7-8 months. He said the police were harassing his family.
After a break we discussed his involvement with the Viet Tan. The applicant said after he got to Australia and out of detention, he had three children and no relatives to help him. He became a helper with the Viet Tan. He was also involved in the Vietnamese Catholic community and the Freedom Vietnamese Community.
He said he was attracted to the Viet Tan as he wishes to change his country and his soul is telling him to do it. He is a member of the committee board and does fundraising. He is on the development board and the propaganda board. He also attends rallies, and his wife assists him with his duties although she is not a member.
He now works as [an occupation]. Before that he worked in a factory. I asked him what would happen to him if he was to return to Vietnam? He said the communist police would put him in jail. He fled Vietnam and he is a member of the Viet Tan. They label Viet Tan as a terrorist organisation. He would be arrested at the border as they would recognise him, he does live streaming, and he has posted a lot on the Viet Tan web site.
The Tribunal took evidence from a member of Viet Tan about the applicant’s involvement. The applicant’s wife gave evidence that when her husband was up north the police were coming to the restaurant looking for her husband. They also came to the house looking for him.
Country Information
Catholics
3.32 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. Authorities do not, however, permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytisation.
3.33 Unlike other religions, there are no independent Catholic organisations claiming to represent Vietnamese Catholics. There has, however, been a rise in the number of independent ‘house churches’ in locations where Catholic parishes have faced difficulties in registering with provincial authorities, due in part to inconsistent enforcement of national laws. These parishes are generally in remote areas and/or areas with majority ethnic minority populations, with the most problematic regions reportedly in the Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong Provinces), the Northwest Highlands, and Hoa Binh Province. Human rights observers report that these house churches face constant surveillance by authorities.
3.34 The Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances. In the aftermath of the Formosa environmental disaster of 2016 (see Recent History), Catholic priests in Nghe An and Ha Tinh Provinces were active in organising demonstrations in response to pollution and high volumes of fish deaths, and assisted parishioners to file lawsuits against the government for financial compensation. Catholic priests were also among the most vocal critics of draft laws on cybersecurity and special economic zones in June 2018 (see Political Activists). For example, the Federation of Vietnamese Catholic Mass Media criticised the Cybersecurity Law’s lack of privacy protections and claimed it had reduced online traffic to Catholic websites DFAT Country Information Report VIETNAM (December 2019) 23 (see also Media). Authorities responded by arresting several Catholic activists, while others reportedly went into hiding or fled the country.
3.35 Throughout 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, human rights observers reported a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by both plainclothes individuals and members of the Red Flag Association, a highly organised pro-government militant group that has typically worked with or under the direction of local authorities. For example, a violent clash broke out in December 2017, between Catholic parishioners and plainclothes individuals regarding the construction of a new chapel in Vinh Diocese. State media reported that parishioners assaulted police, while social media reported plainclothes individuals assaulted parishioners under local authority directives. Human rights observers reported several other violent incidents involving Red Flag members throughout 2017 and 2018, including other attacks in Nghe An and Dong Nai Provinces. International observers reported that the Red Flag Association self-dissolved in 2018 and is no longer active.
3.36 The Catholic community has also been significantly affected by ongoing incidents of land appropriation and destruction of property in a number of locations, including Hue, HCMC, Da Nang, and Hanoi. In January 2019, for example, HCMC authorities reportedly demolished at least 112 residential properties on land claimed by the Catholic Church.
3.37 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.46 As noted in Political System, Article 4 of the Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, and there are very few formal avenues for political participation for non-members. The structure of Vietnamese society strongly favours those with CPV ties. After the Vietnam War, trusted CPV members and their families were awarded with prime positions, while Vietnamese previously allied to the US were punished and their children denied opportunities. The importance of CPV membership and loyalty for social and professional advancement endures in current Vietnam. For example, the CPV continues to prohibit membership if one’s parents (or those of a spouse) worked in the Saigon government or ‘armed forces of the enemy.’ Around three-quarters of the current government’s cabinet is from northern Vietnam, with the remainder from the southern and central provinces. The increasingly important private sector, however, is creating alternative pathways to social and professional advancement for non-party members.
3.47 Opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. The Vietnam Reform Revolutionary Party (known as Viet Tan) is a US-based opposition group (also with an active branch in Australia) which advocates for democracy in Vietnam. It is considered a terrorist organisation by the Vietnam government. Members of other foreign-based opposition groups, such as the Brotherhood for Democracy, have also been accused of carrying out activities aimed at overthrowing the government. The Brotherhood for Democracy is reported to have funding links to Viet Tan (see Political Activists).
3.48 Vietnam has made some steps towards greater openness and transparency, and authorities have tolerated criticism of government in some instances. There are limits to dissent, however, and no signs that the CPV is willing to loosen its monopoly on power. Individuals can incur long prison terms for breaching broad national security provisions. A range of high-profile arrests and trials over the recent years have attracted international criticism of Vietnam's one-party political system and its management of freedom of expression of political views and human rights (see Political Activists and Media). Political Activists
3.49 The Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration. These rights are restricted, however, by a number of ‘national security’ provisions within the Penal Code, namely: Article 109 (‘overthrowing the State’); Article 117 (‘conducting propaganda against the State’); and Article 331 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’). These provisions take precedence over constitutionally enshrined rights in practice, and are commonly applied to activists. The penalties mandated by the provisions remain unchanged, ranging from prison sentences of between six months and 20 years, to life imprisonment or capital punishment (see Death Penalty). Official approval is required for all public gatherings, and authorities routinely deny permission for meetings or marches considered politically sensitive. Police and other security authorities routinely use excessive force to disperse unauthorised demonstrations (see Police).
3.50 Despite legal restrictions and often-severe responses from authorities, citizens do continue to protest, generally in relation to single issue, livelihood-related issues, or occasionally in relation to anti[1]Chinese sentiment. Hundreds of residents from the central provinces protested regularly in the months following the 2016 Formosa disaster (see Recent History), with some protesters reportedly beaten and arrested by police. Police also reportedly stopped some protesters from marching from central Nghe An Province to Ha Tin Province to submit their compensation claims. Activists and their families in Nghe An Province reported an increased incidence of harassment and assault by local authorities in relation to the Formosa disaster protests.
3.51 Large-scale protests occurred on an unprecedented scale in June 2018 in a series of demonstrations in major cities. Thousands reportedly demonstrated in HCMC, Hanoi, Nha Trang, Binh Thuan Province, and other areas against a proposed special economic zone, with some also protesting against a new restrictive cyber security law (see Media). Police in HCMC reportedly beat and detained around 180 people at a stadium, including individuals who were not activists, while civil society organisations reported that plainclothes police officers also beat protesters. By November 2018, at least 127 people were reported to have been arrested and convicted for their participation in the protests. Many protesters subsequently released by police claim to have been mistreated, harassed, assaulted, and detained in relation to the protests in HCMC. 3.52 Low-level protests also occur periodically over land use and compulsory official land acquisition, occasionally involving violence. Under both the Constitution and the Land Law (2013), all land in Vietnam is formally owned by the State, which issues land use rights to individuals or organisations but retains the right to acquire it compulsorily at any time. The Housing Law and Real Estate Business Law (2014) stipulates that land can only be acquired by government if considered necessary for socioeconomic development that is in the public or national interest. The definition of ‘socioeconomic development’ is ambiguous, however, leading to numerous disputes over land use rights. In one such incident in April 2017, villagers in the Dong Tam commune on the outskirts of Hanoi reportedly detained 38 police officers for one week during a land dispute. The standoff ended after the Hanoi mayor committed to not filing criminal charges against protesters, and to investigating land management in Dong Tam and allegations of police injuring the village leader during the protests.
3.53 Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include: - In February 2018, a prominent advocate for workers’ rights was sentenced to 14 years’ imprisonment in Nghe An Province for 'resisting persons in the performance of their official duties' (Article 330 of the Penal Code) and for crimes committed under Article 331. The activist sentenced had written about the impact of the Formosa disaster, highlighting the effects on local fishermen and assisting them in seeking justice and compensation; - In April 2018, an anti-corruption and land rights activist in Thai Binh Province was sentenced to thirteen years’ imprisonment, to be followed by five years’ probation, after being convicted of crimes committed under Article 79 after a trial that lasted only hours. The activist, a member of the Brotherhood for Democracy (see Political Opinion (Actual or imputed)), had published articles denouncing the authorities for corruption and abuses of human rights; - In August 2018, a human rights and environmental activist from Central Vietnam was convicted of crimes under Article 79 and sentenced to 20 years in prison and 5 years’ house arrest, the longest sentence recorded in years for national security crimes. The activist had joined campaigns in support of prisoners of conscience, had used social media to share information about human rights violations, and had campaigned for compensating fishermen affected by the Formosa disaster. During his trial, state media highlighted his affiliation with the Viet Tan organisation (see Political Opinion (Actual or imputed)). The sentence handed down was three years longer than that requested by the prosecutor, with the court adding more time to the sentence because the activist remained silent during his trial and did not admit any crimes. - In November 2019, a 70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist. DFAT Country Information Report VIETNAM (December 2019) 27 - In November 2019, a prominent activist was taken into custody upon their arrival at Hanoi International Airport, and was released after eight hours of questioning. The activist had left Vietnam in May 2016 to work for a Vietnamese civil society organisation, which campaigns for human rights in Vietnam from abroad.
3.54 In a number of cases, authorities have released activists from prison and forcibly deported them from Vietnam. In May 2017, for example, authorities revoked the citizenship of a Viet Tan member and forcibly deported him to France. In June 2018, a Brotherhood for Democracy leader and his assistant were released from prison in Vietnam and deported to Germany, after having been sentenced in April 2018 to 15 and 9 years’ imprisonment respectively. Conversely, human rights observers report that in other cases authorities have confiscated the passports of activists in order to prevent them from travelling abroad, or have imposed restrictions on their domestic travel within Vietnam. Authorities have also subjected prominent activists to house arrest at sensitive times, including during state visits by foreign leaders. In July 2017, Germany publicly accused Vietnam of abducting an asylum-seeking senior Vietnamese official from Germany and forcibly returning him to Vietnam, after he had fled in 2016 amid accusations of economic mismanagement and had been dismissed from Vietnam’s National Assembly. He was later sentenced to life imprisonment. 3.55 Human rights observers report that lawyers who represent political activists often face harassment from authorities to drop cases. Those who do not do so reportedly face restrictions on their ability to practise, which in some cases can lead to disbarring, arrests and detention. Many lawyers are therefore reluctant to accept these cases.
3.56 DFAT assesses that activists who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation, and are unlikely to receive a fair trial. DFAT assesses that low-level protesters against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.
Police
5.6 The MPS manages the People’s Public Security Forces of Vietnam (PPSFV), the country’s main police and security force. It comprises two core forces: the People’s Security Force primarily collects intelligence to detect activities that damage national security; while the People’s Police Force is responsible for social order and public safety and manages more traditional police work, including criminal investigations, neighbourhood policing, traffic control, household registration, and identification cards. Police recruits are required to be members of the CPV or Communist Youth League.
5.7 The PPSFV operates at national, provincial, district, and commune levels. Commune police often have lower salaries and fewer benefits than police at the district, provincial, and national levels and generally receive inadequate training in law and basic police procedures. Provincial and local police forces have a high degree of discretion in their activities. International observers report that corruption is highly prevalent within the ranks of the police. Sources have reported recent cases of organised crime groups bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help. Sources have also reported that local police sometimes use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and religious adherents perceived as undesirable or a threat to national security.
5.8 The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice, police organisations operate with significant discretion and little transparency. Human rights groups have reported multiple recent cases of police abuse where officers have acted with impunity. In the rare cases where officers are prosecuted and convicted, light or suspended sentences or internal disciplinary measures such as warnings are commonly applied. There is no independent police complaint agency to investigate allegations of police abuse by ordinary citizens.
5.9 DFAT assesses that police have a limited ability to provide protection to civilians, particularly at the commune level, are vulnerable to corruption, and typically act with impunity.
Viet Tan
Modernizing Vietnam has been the aspiration of Vietnamese for many generations. In the 19th century, Vietnam lost its independence because it was unable to adapt to changing conditions. For much of the 20th century, the country was torn apart by war and did not enjoy true peace even after unification. Now in the 21st century, Vietnam has the potential of becoming an economic tiger but the Vietnamese people find themselves restrained by a backward dictatorship.
Viet Tan believes that comprehensive development is only possible when political institutions allow for the contributions of all citizens. A pluralistic society is the best way to realize social justice and human rights for all citizens. Therefore, it is Viet Tan’s mission to overcome dictatorship and build the foundation for a sustainable democracy.
To achieve a democratic transition for Vietnam, Viet Tan is committed to peaceful, nonviolent struggle. Working with other pro-democracy groups inside Vietnam and among the diaspora, we aim to mobilize the power of the people.
We are convinced that nonviolent means are most effective for generating maximum civic participation. Because Viet Tan’s ultimate goal is to contribute to Vietnam’s modernization and reform (or Canh Tan, the basis of our party’s name in Vietnamese), we reject the use of violence. Given Vietnam’s recent history and current challenges, the struggle to overcome dictatorship cannot lead to further divisions among compatriots or hamper efforts to rebuild the country.
We embrace a humanistic vision of Vietnam where each person is valued and has the opportunity to flourish. In short, Viet Tan seeks to unleash the talents and aspirations of the Vietnamese nation.[3]
The government of Vietnam has called Viet Tan a terrorist group and over the years made arrests on its Vietnamese members. The government said the California-based Viet Tan, or Vietnam Reform Party, had recruited and trained operatives to use weapons and explosives.
Vietnam has long been sensitive to the activities of Viet Tan, calling the group “reactionaries”, but the announcement carried on state television was the first time it had designated it a terrorist organisation. The police-run ministry of public security said Viet Tan had trained members in militant activities, kidnaps and murders and arranged for operatives to sneak into Vietnam to organise protests and instigate violence. Viet Tan has long been an annoyance for the Communist party that has ruled since the US-backed South Vietnam government fell to northern forces in 1975, leading to an exodus of more than 1 million people, mostly to the US. It was founded by exiled remnants of the deposed Saigon government in 1982 and states as its mission to “overcome dictatorship and build the foundation for a sustainable democracy”. [4]
[3] Introduction - Viet Tan (EN)
[4] Vietnam declares US-based activist group is a terrorist organization | Vietnam | The Guardian

Findings

Country Information demonstrates that Catholics in rural areas are subject to harassment, detainment and discrimination. That the primary applicant is a member of the Viet Tan and has been active and would likely be known to the Vietnamese authorities is the greater issue. Country information shows that the Vietnamese government has called the Viet Tan a terrorist group and they have arrested members. The police are ineffective in providing the applicant and his family with any measure of protection. In this case, the perpetrators of the violence against the primary applicant were the police themselves.
The applicant was forthcoming and credible in his evidence at the hearing. The applicant also had documentary evidence to support his claims.
The Tribunal accepts that the applicant was beaten and detained by the police for practicing his religion. Whilst some of the details have been inconsistent it has been over 10 years since these events and the applicant has had to endure years of visa uncertainty.
Given the amount of evidence and testimony about the applicant’s involvement with the Viet Tan the Tribunal accepts he is a member and an active member whose profile rises to the level of being known to the Vietnamese authorities. The Tribunal notes that the assessment of protection is in fact a forward-looking assessment, what would happen to the applicant upon return to Vietnam. Past experience can be a guide, but it is only one aspect of the consideration.
In the circumstances of the applicant, the Tribunal considers that the applicant’s subjective fear is aligned with the current country information on all fronts, as a Catholic, as a returnee and member of the Viet Tan. The Tribunal considers that the treatment the applicant faces upon return to Vietnam constitutes serious harm. Therefore, the applicant has a real chance of serious harm arising from his religion and his political opinion.
The Tribunal finds the applicant has a well-founded fear of persecution for this reason.
The applicant is unable to avail himself to the state for protection for it is the state that is causing harm in this instance. Nor can the applicant relocate anywhere within Vietnam to escape the harm he fears in his home area.
As the other applicants’ claims are the claims of the primary applicant the Tribunal finds they are also refugees as members of the same family unit.
For the reasons above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
The Tribunal remits matters 1906524 and 2120132 for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that applicants [two], [four], [five] and [six] satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
(iii)that applicant three [the] Tribunal has no jurisdiction.
Nora Lamont
Member

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

[2023] AATA 2373

2 March 2023

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