2120133 (Refugee)
[2024] AATA 4214
•5 September 2024
2120133 (Refugee) [2024] AATA 4214 (5 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kate Khanh Hoang
CASE NUMBER: 2120133
COUNTRY OF REFERENCE: Vietnam
MEMBER:David James
DATE:5 September 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 05 September 2024 at 9:28am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – political opinion – a Viet Tan members and supporter – Member of International Youth Movement for Human Rights – Member of a family unit of a person who was recognised as a refugee – applicant has most likely attained a significant adverse profile with the Vietnamese authorities – data breach – applicant’s fears of persecution are well-founded – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 30 September 2020. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk they will suffer significant harm as defined in s 36(2A) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 29 December 2021. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
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.
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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vietnam they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application submitted on 30 September 2020;
·A series of photos and media articles including; a Human Rights Watch article titled ‘Vietnam: Free Democracy Activist Mother, Sons’, dated 4 May 2021; Vietnamese Community in Australia article titled ‘A Brief History of the Vietnamese Community in Australia’, undated; Media/Internet profile page of Father Nguyen Duy Tan, priest of Tho Hoa parish in Dong Nai Province of Vietnam, undated; an article of International Relations, titled ‘Vietnam’s economic zones derailed by anti-China protests’, dated 3 September 2018; a Radio Free Asia article titled ‘Jailed Vietnamese Democracy Advocate Vows Hunger Strike to His Death, dated 2 August 2021; an International Youth Movement article titled ‘Martin Luther King: Injustice anywhere is a threat to justice everywhere”, undated; and, an Amnesty International report titled ‘Prisoners of Conscience in Vietnam’, all emailed to the Department by the applicant’s representative together with the applicant’s Statutory Declaration of 19 November 2021 on 19 November 2021;
·The applicant’s Statutory Declaration, declared at Brisbane on 19 November 2021 and emailed to the Department by the applicant’s representative on 19 November 2021, as has been outlined above. The applicant in this declaration, declares that:
I, [name], at [address], make the following declaration under the Statutory Declarations Act 1959:
Background
1. I was born on [date], in [Nghe] An Province, Vietnam.
2. I am a Catholic. I am Kinh ethnicity. I am a citizen of Vietnam.
3. I do not have the right of citizenship or a right to reside in any other country.
4. I arrived in Australia illegally by boat as a minor in 2013. I was accompanied by my half-sister and her husband. I was a dependent applicant of the same family unit in the first protection visa application. The first application was found invalid. I was invited to re-apply as an independent applicant in 2020.
Family
5. My father previously married and had another child name [Ms B]. She is my only half-sister.
6. My father later married my mother. I was the only child of this relationship.
7. My father died when I was at a young age. I don’t know much about him.
8. Since I remember, I was living with my mother alone. My half-sister has never been living with us. I often talked to my half-sister, and visit her.
9. My mother often harassed and hit me. I was very upset with her excessive control and unreasonable physical mistreatment. In 2012, I ran away from my mother and move in to live with my half-sister and her family. My mother knew where I lived, but never came to get me.
10. In March 2013, I was told to follow my half-sister and her husband to run away on a boat. I was told my half-sister’s husband was involved in a church incident and local authority has assaulted him. If the local authority found him, he would be physically harassed and imprisoned.
That was the reason we need to run away.
Identity documents
11. I left Vietnam when I was about [age] years of age. National identity cards are issued to people at 15 years or older. I did not apply for any identity documents from the Vietnamese authorities because I was a child.
12. I came to Australia illegally and did not need to apply for any travelling documents either.
13. I have contacted my mother in Vietnam and asked for a copy of my birth certificate and any other documents for my identity. My mother said she does not have any documents.
14. I cannot contact the Vietnamese authority for a copy of my identity documents because I would put myself at risk of being arrest.
15. I have asked my half-sister’s husband’s family in Vietnam to contact my school for copies of my study records. I am still waiting for the outcome. I will provide to the Department once received.
Association with Viet Tan’s member
16. My half-sister’s husband is a Viet Tan’s member.
17. He has publicly participated in Viet Tan organised public’s event and protests. He also shared many of Viet Tan’s [social media] posts on his page. His name and participation in Viet Tan is publicly known.
18. Viet Tan is deemed to be a terrorist organisation by the Vietnamese government. The Vietnamese authorities continues to arrest and harass all Viet Tan’s members when the members are in Vietnam, regardless of their nationals. Mr Van Kham Chau, an Australian was arrested in 2019 and sentenced for 12 years in prison. Pham Minh Hoang, a French was sentenced for 3 years in prison. Many Vietnamese nationals were also arrested and received a long sentence for being a Viet Tan’s member or associated with Viet Tan.
19. I am a family member of a Viet Tan’s member. I was politically imputed as against the Vietnamese government and I would be harassed and arrested upon return to Vietnam.
Member of International Youth Movement and participation in human rights activities
20. International Youth Movement for Human Rights (IYMFHR) is a non-profit organisation, established to gather people together to fight for human rights, freedom and sovereignty of Vietnam. Most of its participants are Vietnamese youth. The organisation aims to raise awareness, promote, and equip young people with patriotism in the defence and development of human rights in Vietnam.
21. I have joined IYMFHR in its first International Youth Conference held in September 2017. I was recently promoted to be [Position 1] of the Brisbane branch.
22. In January 2018, I have organised a human rights forum [in] Brisbane. This forum was supported by IYMFHR. As the main organiser, I had to arranged transport, pick up, accommodations, meals for the guests. I also managed venue booking, promotional materials, marketing strategy, invitation, set up, and all other work to ensure the forum could happened.
23. [Deleted] has been active in the promotion of freedom of religious and human rights in Vietnam for many years. He was targeting and harassed by the Vietnamese authorities because he has supported peaceful protesters. This forum was organised to engage international attention and supports.
24. In April 2018, I have attended [an] event organised by the Vietnamese Community in Brisbane. This is to honour and mourn the lost of the Republic of Vietnam, the previous government of South Vietnam to the communist government. This kind of commemoration which often involved a lot of criticism of the communist government is forbidden in Vietnam. Those participants are often treated as traitor to the current Vietnamese government and are punished.
25. In 2018, IYMFHR has organised a protest in [Brisbane] against the Vietnamese government’s decision to set up special economic zones. The special economic zones were set up to favour China and considered as a threat to Vietnam’s sovereignty. This decision was strongly opposed by the people in Vietnam and also Vietnamese abroad. I took part in organising and participated in this event. I criticised the Vietnamese government for its decision.
26. In 2018, I also attended a fund-raising dinner organised by [a politician]. IYMFHR has a close relationship with politicians and government’s representatives. [Another politician] was also in attendance. I took photo with them and other human rights activists.
27. In September 2018, I have participated in a church campaign [details deleted].
28. In September 2018, I also took part in IYMFHR’s campaign to organise a protest [details deleted]. Various protests and demonstrations were organised around Brisbane shopping centres. My photo was published [and] being circulated around. The campaign was also filmed and livestream on various social media.
29. I was the speakers in many of those protests and demonstrations.
30. In December 2018, I represented the IYMFHR’s Brisbane branch to attend a human rights [event]. I took this chance to demonstrate and gain support for [the cause] with other members of IYMFHR. I also took photo with other NSW MPs.
31. I was also interviewed by [media]. My interview and name were [broadcasted].
32. In November 2019, I participated in a [protest]. I represented IYMFHR’s Brisbane [branch]. This protest was also supported by [community groups].
33. I have actively engaged and organised many events for IYMFHR branch in Brisbane. I have also publicly criticised the Vietnamese government. These activities are deemed against the Vietnamese government. Many human rights activists were arrested in Vietnam for conducting similar activities. I think I will be harassed, arrested and detained for a long period of time upon return to Vietnam.
Fear of returning to Vietnam
34. I believed people should have a right to voice up their opinions and beliefs. I stand up for myself and ran away when my mother took excessive control of me since I was [age] years old. I believe physical harassment and mistreatment in an attempt to silent and control others are wrong.
35. I have learned about the injustice and oppression of human rights since a young age. I was also observed my sister’s family activities in promoting human rights over the years. I want to take part and continue to fight for human rights in Vietnam.
36. I am a human rights activist. My political belief is firm. I will continue to organise protest and criticised the Vietnamese government of their wrong doings upon return to Vietnam or where ever I live. I would never change that believe because these are fundamental to my identity and conscience.
37. I understand these protest activities, and public criticism against the government are not allowed by the Vietnamese government. I will be jailed upon return to Vietnam. I will be subject to severe persecution and tortured. There are records of human rights activists who are subject to arbitrative killing, long term detention and physical harassment. I think I would face the same consequences as those activists.
38. My sister’s family is also a member of Viet Tan. The Vietnamese government will discriminate and arrest any person who has connection with Viet Tan.
39. My participations in human rights activities and identity are known and publicly published on various media sources. The Vietnamese government knew of my participations in protest in Australia.
Reallocation
40. Reallocation is not a solution because the government power is supreme. I will be arrested by the government wherever I live within Vietnam. There is only one political party in Vietnam. Anyone who provide assistance to a dissident would risk themselves to the same persecution. I cannot seek protection from anyone.
41. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
·A copy of the Department’s correspondence of 12 March 2014, addressed to the applicant which related to ‘Unauthorised access to personal information’ in which the Department informed the applicant, in part, that:
In February 2014 a routine report released on the department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department’s website. The information was not visible as part of the report, and was not easily accessible.
As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time…
The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.
The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.
·A letter of support under the hand of [name], [a] Representative, International Youth Movement for Human Rights, dated [November] 2021, which was emailed to the Department by the applicant’s representative on 30 November 2021 together with a Catholic Baptism Record (Vietnamese) and a Study Record (Vietnamese) together with Translations of both identity documents. It is stated in the letter of support, in part, that:
[The applicant] first attended an IYMHR activity in our organisation in September 2017, which was a large conference for youth in [NSW].
Since that date, [the applicant] has been dedicated member of our group, making most consistent and sincere contributions towards raising public awareness of human rights violations in Vietnam and around the globe.
[The applicant] has:
§Attended every national event of the organisation since 2017;
§Been involved in organising peaceful demonstrations in Queensland; and
§Attended every event available to him to connect with other people in IYMHR.
[The applicant] has been the youngest member of the Organisation who is not afraid of hard work and taking on new challenges. His willingness to share his opinions, values and beliefs among other members and in front of public audiences have been well received and admired by other members and supporters within the Vietnamese community.
[The applicant] was very active throughout the years 2017 to 2019. Dut to Covid interrupting our activities since 2020, and the demands of his young family, [the applicant]’s contributions have reduced, yet we look forward to welcoming [the applicant] on board again fairly soon.
·The applicant’s application for review of 29 December 2021 and the annexed Decision Record of 18 December 2021;
·The administrative and movement records of the Department relating to the applicant;
·Applicant’s ‘evidence booklet’ submitted to the Tribunal by email by the applicant’s representative on Sunday 1 September 2024, which included a series of copies of photos depicting the applicant at various Vietnamese community events and apparent demonstrations and/or rallies; and, a series of copies of telephone snap shots of apparent [social media] postings;
·Applicant’s updated Statutory Declaration of 30 August 2024, emailed to the Tribunal on 1 September 2024 and 2 September 2024, in which the applicant declared, that:
I, [name], at [address], make the following declaration under the Statutory Declarations Act 1959: I refer to the previous Statutory Declaration dated 19 November 2021 and I wish to provide further information in support of my claims for protection.
Updating family circumstances
1. I am currently in a relationship with [name]. She is an Australian.
2. We one child together. My daughter is [name] born [date]. My daughter is also an Australian.
3. I commenced the relationship in early 2017. It was before the date I applied for my second protection visa in 2020. I was also before the date my first protection visa was refused. We did not legally married and are living together as a de facto couple since.
Procedural issues
4. In 2013, I arrived in Australia with my half sister and brother-in-law. They were my guardian on my arrival. They have been acting as my guardian until I legally can represent myself before the Department.
5. We applied for the first protection visa file number [deleted] in around 2016 as a family unit, together with my Australian born niece and nephews. I was also the dependant applicant in this application.
6. On 28 August 2017, the first application was refused by the Department. It was referred to the IAA for a review.
7. On 30 October 2017, the IAA affirmed the Department decision to refuse my family’s protection visa.
8. We applied for a judicial appeal to the Federal Circuit Court case number [deleted]. [In] December 2018, the Federal Circuit Court declared that we were not correctly notified. Therefore, we were allowed to apply for a merit review in the AAT.
9. On 22 February 2019, a new refusal notification was emailed to us and advised our review rights in the AAT. On 19 March 2019, we have lodged a review application in 1 the AAT case number 1906524. I am an applicant in this review application before the AAT.
10. On 04 September 2020, the Department notified us the first application was invalid. We were invited to apply for a second protection visa. I was over 18 at this time. Therefore, I received a separate invitation to apply for a protection visa application.
11. My brother in law’s family successfully applied for a protection visa file [number]. This was latter refused by the Department. My brother applied for an AAT review application case number 2120132. I am not an applicant in this application.
12. I have successfully applied for a separate protection visa file [number]. I am the only applicant in this application. This application was refused on 18 December 2021. I have applied for a merit review in the AAT case number 210133. This is the current merit review application being considered in the upcoming hearing in the AAT.
13. On 02 March 2023, the AAT made a decision on my brother in law’s case number 1906524 in which I am an applicant and case number 2120132 in which I am not an applicant. The Tribunal found both matters are valid and remit both matters for reconsideration with the direction that my brother-in-law satisfied the definition of a refugee, other dependent applicants satisfied on the basis of membership of the same family unit as my brother. However, I was excluded in the Tribunal’s decision. The Member found that the Tribunal has no jurisdiction to make a decision on me as an applicant.
14. I think the Tribunal decision on 02 March 2023 is incorrect. I was the applicant in the Department [application]. This application was validly made at the Department and a review application was validly made to the Tribunal. The time of lodgement at the Department is relevant to determine my eligibility as a dependant applicant in the family unit. The delay in decision making and appeal period were not my false.
15. I was wrongly excluded from the Tribunal review. I should be a valid applicant in the Department file [and] AAT case number 1906524. Therefore, I 2 should be found to be a member of the family unit together with my brother’s family because of the time of [lodgement] I was a dependent applicant.
Association with Viet Tan
16. I became aware Viet Tan through my sister’s husband [Mr C] since I was a young teenager. As the men in the family, we had many things in common including our ideology in protecting human rights. I often accompanied him to various protesting activities and event during my teenager years.
17. Due to my social circle and living environment. I was regularly opposed to the current political and human rights situation in Vietnam through participation in Viet Tan activities and interaction with other senior Viet Tan’s member over a long period of time.
18. I became very interested to learn more about the political conditions in Vietnam as opposed to the democratic country like Australia. I started to understand the injustice, lack of human rights, lack of freedom of speech in Vietnam. I began to develop a meaningful relationship with political activist and searching for ways to improve the human rights situation in Vietnam.
19. I was under 18 at the time. There was limited membership that is related to political agenda made available for me to joint. I found International Youth Movement for Human Rights (IYMFHR) is the most appropriate group in which I can joint to fight for democracy for Vietnam. I became the member and progressed into [Position 1] of the Brisbane branch. I was a very active member of IYMFHR group. I refer to my statement 19 November 2021 for a list of my duty and activities carried as a member of IYMFHR group.
20. As I grew older and became more mature, I find IYMFHR’s activities are more relevant for younger people. I find Viet Tan’s policy and objectives to be more appropriate for my age. I began to joint more of Viet Tan activities as I grew older.
21. I often involved in many of Viet Tan’s activities such as fundraising, protests, commemoration and political events to show my support. I share the same ideology and objective as Viet Tan. 3
22. Viet Tan is an organization that promote human rights values and point out the dictatorship characters of current Vietnamese communist government. I firmly believe Viet Tan is not a terrorist organisation as asserted by the Vietnamese government. Viet Tan is a pro-democracy organisation that promote human rights through peaceful means. Viet Tan does not aim to overthrow the Vietnamese government. These are false and fabricated allegation made by the Vietnamese government to arrest Viet Tan members.
23. I grew up in Australia. I went to Australian schools. I understand democracy and value social justice values. I feel that is my responsibility to voice my opinion and speak up for the people of Vietnam.
24. I appeared alongside with other Viet Tan members for a long period of time. I appeared to be a Viet Tan member in public and social media. Viet Tan’s membership is not published online. The Vietnamese government often made assumption and arrest anyone who is associate with Viet Tan and give them a long-term imprisonment.
25.I think I would be arrested by the Vietnamese government because I am deemed to be a Viet Tan members and supporter. Many people have been arrested for their association with Viet Tan including Vietnamese national in Vietnam and other nationals with Vietnamese background upon their returning to Vietnam.
26. I will continue to raise awareness and support Viet Tan because I believe that the people in Vietnam should one day live in a democratic system and it is the right to speak up against social injustice.
Social Media Activities
27. On 09 October 2018, at Vietnam annual commemoration event organised by Viet Tan, I was introduced to [Mr A] [by] my brother-in-law. The English equivalent translation of the page’s name would read ‘[Organisation 2]’.
28. As a young person, I am quite proficient in using social media. I was assigned to me [Position 2] of [Organisation 2]’s official [social media] page. This page has about [number] followers. I regularly [do work] as [Position 2].
29. In 2021, [the social media] page was attacked and crashed. I believe this was caused by the Vietnamese online warriors who called “[name]”. This group has about 10,000 nuclear members to fight and identify online activists. This group is funded by the Vietnamese government in cyberspace.
30. Due to the online attacked, I think they could have obtained my information as [Position 2] of [Organisation 2]’s [social media] page. I am at risk of arrest for promoting views that is deemed against the Vietnamese government.
31. Viet Tan has made complain to [social media] and request access to the page. However, it was unsuccessful. A new [Organisation 2]’s page was created in 2022. I am again assigned to be [Position 2]. [Deleted]. The current number of followers is about [number].
32. I also actively use [social media] to openly share my political perspective against the Vietnamese government’s wrong doings. I post up my photos participating in Viet Tan’s activities and other political activities. These online activities are also deemed against the Vietnamese government.
33. My photos of participation in Viet Tan’s activities were also posted on [Organisation 2] page. My face is clearly identified. It appears that I am an official Viet Tan member.
34. Viet Tan’s official [social media] page and associated branches’ [social media] pages such as [Organisation 2] are constantly monitored by the Vietnamese government. I am sure that my activities that were published on these pages are also monitored. My identity is easily identified through my online activities, the interaction with [Organisation 2]’s page, and its link to my personal [social media] account.
35. Due to my activities with Viet Tan, I am a deemed terrorists by the Vietnamese Government. I believe that the Vietnamese authorities, both locally and nationally, are 5 aware of my affiliation with Viet Tan and my so-called 'anti-government' activities in Australia.
36. Many Viet Tan members from Australia, the USA, Europe, and Vietnam have been arrested and faced lengthy prison sentences for their pro-democracy activities with Viet Tan. I fear that I might face similar or even harsher punishments due to my ongoing political activities in Australia.
37. I am committed to continuing my efforts to support my Vietnamese compatriots who face repression under the communist regime. This includes engaging in political protests, participating in educational activities, rallying supporters, sharing information to raise awareness, and exposing the political situation in Vietnam on a global scale.
Associations with Montagnard Stand for Justice
38. As a human rights activist, I support every organisation which hold similar objectives. Therefore, I also support Montagnard Stand for Justice (MSFJ) 39. MSFJ is also a non-profit group based in USA and Thailand. They fight for a freedom of religion for the ethic minority in Vietnam.
40. In recent years, the Montagnard is subjected to severe persecutions and harassment by the Vietnamese government. It includes Vietnamese government illegal confiscation of land, religious oppression and wrongful arrest of the Montagnard.
41. In early 2024, MSFJ was declared to be a terrorist organisation by the Vietnamese government. Therefore, anyone who participates, propagates, entices, sponsors are guilty of terrorism under the Vietnamese law.
42. This is another false allegation made up by the Vietnamese government in the same way as they named Viet Tan a terrorist group.
43. I support MSFJ for their objectives and made [a donation]. My name was published. The reason for donation was clearly identified as support for MSFJ and Y Quynh Bdap, the founder of the group who is facing 6 extradition by the Thailand government upon the request by the Vietnamese government.
44. The arrest of Y Quynh Bdap is a cross-border oppression of human rights. Bdap is formally recognised as a refugee by UNHCR, his extradition from Thailand to Vietnam is a gross infringement of international human rights law. I will continue to show my support for Mr Bdap through various means. I think I will be arrested because of my association to MSFJ.
Further information
45. I support all organisation who fight for human rights for Vietnam. I participated in these activities since I was very young. It is my objective and I will continue to fight for a free Vietnam in the future.
46. I am in a long-term relationship with an Australian and we have one child together. I understand I can be sponsored by my partner for a spouse visa. However, I cannot return to Vietnam due to my political activities in Australia. I will be arrested upon my return to Vietnam.
47. I commenced the relationship since I was only [age] years old. I could have returned to Vietnam and commenced my spouse visa application during that time. However, I chose to stay in Australia and continuously fight for human rights because I want to fight for human rights. It’s my belief and ideology. I do not engage in political activities to strengthen my protection claims. I do have another avenue to obtain Australian permanent residency which I considered to be an easier and faster avenue. I did not choose the spousal avenue because I truly fight for my belief of social justice. I would not be able to expose the Vietnamese wrong doings if I chose to be silent and safely return to Vietnam for my own benefit.
48. I sincerely ask the Tribunal to consider my circumstances and grant me a protection visa.
·Letter of support under the hand of [Mr A], [a senior role] of [a] Team in Australia, dated [August] 2024 on the letterhead of Viet Tan (Vietnam Reform Party) Queensland Chapter, in which it is reported that:
This letter confirms that [the applicant] is an active friend of the Viet Tan-Brisbane Party.
[The applicant] has participated in many grassroots projects and activities organized by Viet Tan.
He is currently helping work on [some teams] for Viet Tan in Australia. [The applicant] is also working [for] the [social media] page [founded] by Viet Tan in Australia.
[The applicant] has shown great determination and strong political views against the Vietnamese government. His interest in the Vietnamese government is through his participation, comments, and posts on social networks, especially posts on the [social media] [page] He has proven himself authenticity to realize common human rights goals for many years without any other agenda. And work standing side by side with his brother [name], who is also a long-time member of Viet Tan.
The Vietnamese Communist Government has declared Viet Tan a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished. Together with the history of suppressions of the Vietnamese Communist Government on Viet Tan party members, especially those actively engage in Viet Tan's activities, I therefore am very concerned for her safety if she is forced to return to Vietnam, especially the suppression is currently increasing in Vietnam.
I urge the Immigration Department reconsider [the applicant’s] case and grant her an express temporary visa to stay in Australia for the time being.
·Applicant’s representative’s written submissions, dated 2 September 2024 and emailed to the Tribunal on 2 September 2024, in which, in part and as relevant, it was submitted that:
Claim for protection
1. The applicant claims the following reasons for protection:
a. Political opinion due to this participation in protests and online [social media] activities
b. Implied member of Viet Tan group
c. Implied member and/or supporter of Montagnard Stand for Justice
d. Member of International Youth Movement for Human Rights
e. Member of a family unit of a person who was recognised as a refugee…5. The applicant has provided [social media] screenshots which indicate a consistent pattern of sharing critical information of human rights in Vietnam. The applicant also shared articles from Viet Tan’s [social media] page, and reposted contents and expressed opinion that is opposing the Vietnamese government on his [social media] page. These online activities are subjected to sanction and can be criminalised to an act against the State.
6. The applicant is [a Position 2] of [Organisation 2] which is a [social media] page that is under the official administration of Viet Tan. This page was previously hacked and shut down. The applicant claims that his information of being [Position 2] of the page has been reviewed by third party under control of the Vietnamese government and it is likely that the Vietnamese government has his personal information.
7. There is a real chance that the Vietnamese government has followed the applicant’s activities through Viet Tan’s page and could identify the applicant as a member of Viet Tan through his online activities. As a result, the applicant would be arrested in Vietnam for his online activities and
affiliation with Viet Tan…
11. The applicant has consistently participated in activities that promote human rights, demand to release prisoners of conscience organised by Viet Tan and other organisations for a long period of time. The applicant has publicly raised his strong opinions against the Vietnamese government at the protests by expressing views and holding banners that is critical to the Vietnamese government. The applicant would continue to engage in political activities in Australia and in Vietnam. It is likely that the Vietnamese authority is aware of the applicants’ criticism and public activities. There is a real chance that the applicant will be persecuted upon return to Vietnam.
12.The applicant claims to be an implied member of Viet Tan and would be at risk of persecution due to his implied membership with the group.
13. The applicant has participated in Viet Tan’s activities since 2018. The applicant has also submitted a support letter issued by Viet Tan and photos of his participations in Viet Tan’s events which he was standing next to Viet Tan members. These photos are shared on social media and Viet Tan’s
[social media] page. These photos can be viewed by the public. The applicant has publicly confirmed his affiliation with Viet Tan…
Protection is not available
30. There would be no protection available to the applicant from the Vietnamese authorities because they would be the perpetrators or agents of the treatment toward the applicants. There would be no safe place in the country for the applicants to reside because the Vietnamese government has absolute authorities within the Vietnamese territory. The Vietnamese government would be aware of and monitor her whereabouts.
31. The applicant would be unable to modify his behaviour to avoid being targeted and subjected to harms and imprisonment by the Vietnamese authorities because her ongoing and intended future anti-Vietnamese government activities.
32. For the reasons above, the applicant is satisfied that he is a person in respect of whom Australia has protection obligations.
Background to the applicant’s claims
The applicant arrived in Australia by boat without a valid visa on [date] April 2013. However, the applicant’s arrival in Australia by sea into the migration zone was not at an ‘excised offshore place’. As such the applicant is not an ‘Unauthorised Maritime Arrival’ (UMA) for the purposes of the Act, and the applicant has been found to be a ‘Direct Entry Person’ (DEP).
Claims for protection
The applicant, in his visa application of 30 September 2020, made the following claims (as summarised) that:
·He left home to live with his half-sister [Ms B] and seek help because he was treated badly by his parent. In the meantime his half-sister’s husband [Mr C] was beaten by the police and so he followed him ([Mr C]) to seek freedom;
·His brother-in-law ([Mr C]) was in hiding so he lived with his half-sister, [Ms B];
·If he returns to Vietnam, he will be imprisoned and beaten because they left the country illegally as the police are still looking for his brother-in-law;
·He is also an activist in Australia who has fought for freedom in Vietnam;
·The authorities of Vietnam will not protect him as the communist hate those who flee the country and are against them; and
·He cannot relocate in Vietnam as the government would identify them anywhere in Vietnam.
In his Statutory Declaration of 19 November 2021, he further claims, that:
·He was told by his brother-in-law ([Mr C]) that he was involved in a church incident and the local authorities assaulted him and if they find him, he would be physically harassed and imprisoned and that was the reason they ran away;
·His brother-in -law ([Mr C]) is a Viet Tan member and has publicly participated in Viet Tan events and protests and he has shared many Viet Tan [social media] posts on his page and his name and participation with Viet Tan is publicly known;
·The Vietnamese authorities will arrest and harass all Viet Tan members and as he is a family member of a Viet Tan member he would be politically imputed as being against the Vietnamese government and would be harassed and arrested upon any return to Vietnam;
·He has joined the International Youth Movement for Human Rights (IYMFHR) which fights for human rights freedom and the sovereignty of Vietnam and has attended their events and conferences and was recently promoted to [Position 1] of the Brisbane Branch;
·In January 2018 he organised a human rights [forum];
·In April 2018 he attended [an event]. Participants are often viewed as traitors by the Vietnamese government;
·In September 2018 he participated in a church campaign [details deleted]. The campaign was filmed and livestreamed on social media;
·He has been a speaker at many of these protests and demonstrations;
·In December 2018 he represented IYMFHR’s Brisbane Branch at a human rights [event];
·He was interviewed by [media], and his name was broadcasted;
·In November 2019 he participated in a [protest]; and
·He has actively engaged and organised many events for the IYMFHR branch in Brisbane and considers himself to be a known human rights activist who would be imprisoned upon any return to Vietnam due to his activities in Australia and his association with [Ms B]’s family.
Department interview
The applicant attended a protection visa videoconference with the Department on 23 November 2021.
Delegates decision
The delegate’s decision of 18 December 2021 to refuse the protection visa was made on the information before the delegate. The delegate with reference to country information found as to the applicant’s catholic faith, that while there are certain restrictions including a need to comply with state law and to attend registered churches there was no indication that Catholics are being systematically targeted by the Vietnamese government or police because of their religious beliefs. Further by the applicant’s own admissions he did not experience any problems while he was in Vietnam. Therefore, the delegate was not satisfied there was a real chance that on return to Vietnam the applicant would be persecuted as a result of his Catholic faith. As to the applicant’s opposition to the Communist party and his protest activity in Australia the delegate found that there was no evidence to indicate that any of the applicant’s political activities including his social media activity in Australia has come to the attention of the Vietnamese government or elevated his profile to that of an organiser or dissident such that he has become of interest to the Vietnamese government. In relation to the data breach and the applicant’s claims that he would be targeted by the Vietnamese government the delegate found that given the nature of the information they did not consider its publication would cause any problems for the applicant on return to Vietnam. As to his claims of being a failed asylum seeker the delegate found no reference to individuals with the applicant’s profile or circumstances being persecuted upon their return to Vietnam. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate with reference to the country information and for the same reasons that they found that the applicant was a not a refugee was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend a hearing
On 7 August 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 3 September 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
The Tribunal has taken into consideration the DFAT Country Information Report, Vietnam, 11 January 2022, including information under the heading of ‘Political Opinion (Actual or Imputed) at 3.49 to 3.57, it is reported at 3.49 to 3.54 and 3.57, that:
Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.
Under the heading of ‘Online activists and social media users’ at 3.61 to 3.64, it is reported that:
Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘[name]’. The activities of [the group] are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to [the group], and that [the group] allegedly trolls online users and hacks accounts. [The group] is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.
Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues (such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.
It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.
Under the heading of ‘treatment of Returnees’ and the sub-heading of ‘Exit and entry procedures’ at 5.25 to 5.28, it is reported at 5.26 that:
Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
And under the sub-heading of ‘conditions for returnees’ at 5.29 to 5.34, it is reported at 5.31, 5.32 and 5.34, that:
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
Additionally, the Tribunal has also considered the DFAT Country Information Report Vietnam, 13 December 2019, as relevant, including the information under the heading of ‘Political Activists’ at 3.49 to 3.56 noting that at 3.53 and 3.54 it states:
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.
- 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.
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.
Review hearing - 3 September 2024
The Tribunal hearing was conducted at the Brisbane Registry with the applicant’s representative appearing separately by video-link. The hearing was conducted in the English and Vietnamese languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria told the Tribunal that he had received an explanation of the criteria from his representative and that he understood the criteria.
Under questioning the applicant outlined his personal history, his travel to Australia by boat with his sister and brother-in-law and his attendance with his brother-in-law at various Viet Tan events and public engagements and demonstrations together with his involvement with the International Youth Movement for Huma Rights (IYMFHR) all in accordance with and consistent with his claims and his Statutory declarations as has been outlined above.
The applicant in reply to questioning from the Tribunal as to how he believed he had obtained an adverse political profile with the Vietnamese government, told the Tribunal that although he had been attending Viet Tan events with his brother-in-law and had been featured in some photographs on both the webpages [he] had not been identified by name. However, he further explained that he had been asked to [deleted] [Organisation 2] webpage for the Viet Tan and that the Vietnamese government may have obtained knowledge of his role through the cyber attack on the website in 2021 when the Vietnamese government’s [unit] crashed the [Organisation 2] website.
Under further questioning the applicant agreed that he only suspected that the cyber-attack on the [Organisation 2] had been carried out by the Vietnamese Government’s [specified unit].
The applicant told the Tribunal that he believed through the cyber-attack on the website of [Organisation 2] that he had been identified by name and through photographs that had been posted on the site. He further explained that photos had been posted of him with his brother-in-law a known Viet Tan member and organiser on both the Viet Tan and [Organisation 2] sites. He said that his profile with the Viet Tan together with his public appearances with the IYMFHR at rallies, conferences and demonstrations in support of Vietnamese dissidents had likely resulted in him having been identified by the Vietnamese authorities as a dissident, associate if not a member of Viet Tan, and as such in accordance with his representative’s submission and the relevant DFAT country information a terrorist.
The Tribunal also received oral evidence from [Mr A], who told the Tribunal that he was a long-standing member of Viet Tan and [a position] of Viet Tan’s [specified] team.
[Mr A] told the tribunal that he had met the applicant through his brother-in-law who was and is an active and senior member of Viet Tan. He explained that at that time, the applicant was young and still at school. He further explained that at a later date on the occasion of a Viet Tan party in Brisbane at which the applicant had attended with his brother-in-law he had been told of the applicant’s [specified] skills. He said that on this occasion he spoke with the applicant about his knowledge of social media and then invited him to assist the Viet Tan by [doing work for] [Organisation 2] social media [site].
When questioned as to whether the applicant would have become identified and/or publicly known as the [Position 2] of the ‘[Organisation 2]’ web page and [social media] account, [Mr A] explained that although the site had been shut down in 2021 by the Vietnamese government [information] identifying the applicant was unlikely to have been gleamed.
However, [Mr A] told the Tribunal that unknown to the applicant as Viet Tan had not told him as they did not want him to be worried, his own computer had also been the subject of a cyber attack from the Vietnamese government’s [unit] in 2021 and the subsequent data breach included the names of some of the members of the Vietnamese community who had been assisting Viet Tan including the applicant’s personal details and information relating to his role in [the] [Organisation 2] web page and [social media] account where many Viet Tan and other anti-Vietnamese government articles and posts had been posted, shared and distributed to the Vietnamese community in Australia and worldwide including Vietnam.
Under questioning by the Tribunal as to how he was sure that the cyber attack on his computer and the resulting data breach that included the applicant’s personal details and role with the ‘[Organisation 2]’ had been conducted by the Vietnamese government. [Mr A] in reply told the Tribunal that the Viet Tan had been told that other persons whose personal details had been hacked in the data breach had reported that the Vietnamese authorities had raided and searched the homes of their relatives in Vietnam and questioned them about those identified in the data breach. Under further questioning as to the Viet Tan’s knowledge of these raids by the Vietnamese authorities, [Mr A] told the Tribunal that one of the relatives of those who had been subject to the data breach had secretly recorded the raid by police of her home and some of the questioning of her family by the Vietnamese police.
[Mr A] then using his phone showed a recording to the Tribunal that clearly showed Vietnamese police in uniform in attendance at a home where they appeared to question the occupants of that home.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Vietnam and provided a copy of his Vietnamese ‘Certificate of Receiving Sacraments’ and a copy of his ‘Study Record’ from [a] School to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Vietnam. Vietnam is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which both provide useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal found the applicant to have been an honest witness who provided consistent evidence throughout the hearing as to his background and experiences in Vietnam and his life in Australia.
Political opinion (actual and/or imputed)
The applicant claims that through his association with his sister and brother-in-law together with his attendance with his brother-in-law at a variety of Viet Tan meetings, gatherings and demonstrations at which he has at times been photographed with his brother-in-law and other known Viet Tan members he has obtained an anti-Vietnamese government profile. He claims that his profile in this regard, is of an associate if not an imputed member of the Viet Tan, an organisation which the Vietnamese government has declared a terrorist group.
The applicant at the hearing further claimed that he has been identified as having been [Position 2] of the ‘[Organisation 2]’ webpage and [social media] account which posts and distributes Viet Tan articles that are critical of the Vietnamese government. He claims that his personal details and information as to his role as the ‘[Organisation 2]’ [Position 2] were obtained by the Vietnamese government’s [unit] when they crashed the ‘[Organisation 2]’ webpage in 2021.
The applicant further claims that he has also gained a profile as a human rights activist who has called out the Vietnamese government in relation to their treatment of Catholics in Vietnam through his involvement and organisation of events with the International Youth Movement for Human Rights (IYMFHR).
The Tribunal noting that the applicant’s role as an [Position 2] of the ‘[Organisation 2]’ and his involvement with the IYMFHR all occurred after he had arrived in Australia notes that subject to s 5(J)(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia.
However, s 5(J)(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.
In that regard, and after questioning the applicant about his involvement with Viet Tan, the ‘[Organisation 2] and the IYMFHR, the Tribunal is satisfied that the applicant sought to support his brother-in-law and express his own strongly held views of the injustices that have occurred and continue to occur in Vietnam and that his involvement with these organisations was not conduct sought to strengthen his claim to be a refugee but rather conduct he engaged in in accordance with his beliefs and a desire to support if not facilitate changes in Vietnam.
The Tribunal in its consideration of the applicant’s claims found that the evidence of [Mr A], the [senior role] of the [named Team] in Australia was most significant. He told the Tribunal at the hearing that in addition to the cyber-attack and subsequent crashing of the ‘[Organisation 2]’ website which he suspected had been conducted by the Vietnamese government’s [unit] in 2021, his own person computer had at the same time been infected with a virus. He explained that this virus had originated from an email from the Vietnamese authorities and had resulted in a data breach that resulted in the personal details of some people who had been confidentially and discreetly assisting Viet Tan being identified. His evidence was that some of this information which had been hacked during this data breach included the personal particulars of the applicant and details of his role as [Position 2] of the ‘[Organisation 2]’.
In support of his suspicions as to the cyber attack upon his computer having been conducted by the Vietnamese authorities, [Mr A] told the Tribunal that the Vietnamese relatives of two other persons who were identified as supporters of the Viet Tan on his computer had shortly after the data breach been raided and interrogated by the Vietnamese police. Under questioning he produced to the Tribunal a video recording showing a group of Vietnamese police raiding and interrogating a group of people in a private home.
The Tribunal having had the benefit of observing the applicant and [Mr A] give their oral evidence and reply to the questions of the Tribunal has accepted their evidence and found them both to have been honest and reliable witnesses at the hearing. Therefore, the Tribunal accepts that the applicant’s brother-in-law is an active and prominent member of Viet Tan with an established profile, as was also accepted by this Tribunal in case numbers 1906524 & 2120132.
Therefore, given the applicant has been photographed with his brother-in-law at a variety of Viet Tan events and that such photographs have featured on the website of Viet Tan and the ’[Organisation 2]’; together with the applicant having most likely been identified as the [Position 2] of the ‘[Organisation 2]’ through the cyber-attack upon [Mr A]’s computer in 2021. It is accepted by the Tribunal that the applicant has most likely attained a significant adverse profile with the Vietnamese authorities.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does face a real chance of persecution involving serious harm if he was in the reasonably foreseeable future to return to Vietnam on account of his actual and/or imputed political opinion.
The Tribunal finds that the applicant’s fears in this regard are well-founded.
Refugee criterion – s 36(2)(a) of the Act
The Tribunal, having considered all the applicant’s claims both individually and cumulatively, does accept the applicant’s claims as to his actual and/or imputed political opinion and is satisfied that the applicant does face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of an actual and/or imputed political opinion.
The Tribunal in this regard, is satisfied that if the applicant was to return to Vietnam in the reasonably foreseeable future he would be identified by the Vietnamese authorities as the brother-in-law of a senior Australian Viet Tan member and the [Position 2] of the ‘[Organisation 2]’. As such the applicant faces likely arrest, detention and torture by the Vietnamese authorities who would view the applicant as either/or a terrorist or a close family associate of a terrorist and would seek to illicit information from him as to the membership and activities of Viet Tan and the [Organisation 2] in Australia and Internationally. In coming to these findings, the Tribunal has carefully considered the Country information which it finds is supportive of these findings. As such, the Tribunal finds that the applicant’s fears of persecution are well-founded, as is required by s 5J of the Act, and therefore, the applicant is a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection – s 36(2)(aa)
Having concluded the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 36(2)(a) of the Act.
David James
Senior MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
-
Standing
0
14
0