2203960 (Refugee)

[2023] AATA 3445

2203960 (Refugee) [2023] AATA 3445 (25 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Joshua Le Vay

CASE NUMBERS:  2203960, 1909758 & 1909756

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Nicole Burns

DATE:25 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal:

Remits matter 1909756 (Safe Haven Enterprise visa application made on 23 December 2016) with the direction that:a.   

The first named applicant satisfies s 36(2)(a) of the Migration Act;

Remits matter 1909758 (Safe Haven Enterprise visa application made on 23 December 2016) with the direction that:b.   

The second named applicant satisfies s 36(2)(a) of the Migration Act; and

c.     Sets aside the decision in matter 2203960 to refuse the applicants protection visas (Safe Haven Enterprise visa application made on 16 October 2020) and substitutes it with a decision that the visa application was not valid.

Statement made on 25 July 2023 at 4:41pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – brother applicants – religion – Catholic – member of Cau Ram Youth Group – political opinion – participated in anti-government protests – illegal departure – asylum seeker – confrontations with state authorities and anti-Catholic members of public – one applicant faces well-founded fear of persecution – credibility issues with second applicant – second applicant member of particular social group as family member of successful applicant – decision under review remitted – Safe Haven Enterprise visa application of 16 October 2020 set aside as invalid

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48A, 48B, 65, 91K, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who claim to be citizens of Vietnam, are brothers.

   Procedural history

3. There is an extensive procedural history to these cases now before the Tribunal, as follows.

4. According to Departmental records, [in] April 2013 the applicants arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicants are not ‘fast track applicant(s)’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

5. The applicants were previously granted a Class UJ Safe Haven Subclass 449 Humanitarian Stay (Temporary) visa on 18 September 2014. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

6. The applicants first applied for a Class XE Subclass 790 Safe Haven Enterprise visa (SHEV), separately, on 23 December 2016 (the first SHEV applications). The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on s 5H(2), 36(1B) or (1C) or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.

7. Following this, the applicants purported to make a second application for a SHEV on 16 October 2020 (the second SHEV application), in a combined application. However, the applicants’ first SHEV applications were not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicants because they were not within the class of persons specified in the then Minister’s s 48B determination.

8. The first SHEV application of 23 December 2016 in relation to the first named applicant was refused by the delegate on 30 January 2018 who was not satisfied they were a refugee or that complementary protection provisions applied. An application for review of that decision was made to the Tribunal on 18 April 2019 (AAT Case Number 1909756). A copy of the delegate’s decision record was provided to the Tribunal on review.

9. The first SHEV application of 23 December 2016 in relation to the second named applicant was refused by the delegate on 30 January 2018 who was not satisfied they were a refugee or that complementary protection provisions applied. An application for review of that decision was made to the Tribunal on 18 April 2019 (AAT Case Number 1909758). A copy of the delegate’s decision record was provided to the Tribunal on review.

10. The second SHEV application (which included both applicants) of 16 October 2020 was refused by the delegate on 22 February 2022 who was not satisfied either applicant was a refugee or that complementary protection provisions applied. An application for review of that decision was made on 19 March 2022 (AAT Case Number 2203960). However, the second SHEV application is, and always was, barred under s 48A. Accordingly, the second SHEV application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second SHEV application and substitute it with a decision that the second SHEV application is invalid.

11. The applicants appeared before the Tribunal in a joint hearing on 22 February 2023, where they gave evidence and presented arguments about the issues that arise in their cases. The representative – who is the same for all cases – had agreed to a joint hearing beforehand in a telephone conversation with a Tribunal officer, on 10 January 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

12. The representative participated in the Tribunal hearing via video link from NSW where he resides.

13. The issues in these cases are whether there is a real chance, if the applicants return to Vietnam, now or in the reasonably foreseeable future, that they would be persecuted for one or more of the following reasons: their race, religion, nationality, membership of a particular social group or political opinion. Further, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm.

    CRITERIA FOR A PROTECTION VISA

14. To meet the criteria for a SHEV, applicants must engage Australia’s protection obligations as follows.

15. 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.

16. 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.

17. 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).

18. 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–5LA, which are extracted in the attachment to this decision.

19. 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

20. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

21. The most recent DFAT country information report on Vietnam was published on 11 January 2022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Receiving country

22. The applicants claim to be nationals of Vietnam, both born in Vinh city, Nghe An province. The first named applicant (hereafter ‘[Applicant 1]’) was born on [date], making him [age] years of age. The second named applicant (hereafter ‘[Applicant 2]’) was born on [date], making him [age] years of age.

23. The applicants provided to the Department documentary evidence of their claimed identities and nationalities in the form of their Vietnamese birth certificates (translated); family registration booklet; and Australian government ImmiCards. [Applicant 2] also provided a copy of his Vietnamese identity card and his Victorian driver’s licence. The delegate noted there were no inconsistencies in the information the applicants had provided about their names and birth dates and accepted, based on this and the documentary evidence provided, that they are citizens of Vietnam and are who they say they are.

24. Accordingly, the Tribunal is satisfied the applicants are Vietnamese citizens and finds that Vietnam is their ‘receiving country’ for the purposes of assessing their protection claims.

    Background

25. Based on the evidence before it, including the applicants’ oral evidence at hearing, the Tribunal accepts the applicants are of Kinh ethnicity and are Catholics. In Vietnam they lived in their hometown of Vinh city, which is where their parents and sister still reside. Another brother lives in southern Vietnam. [Applicant 2] worked as [an occupation] in Vietnam. [Applicant 1] was still at school.

26. Presently the applicants live together in [Victoria] and work [together]. They are married to Vietnamese nationals who are both in Australia studying (and holding student visas). [Applicant 1] has a [daughter] and (at the time of hearing) his wife was pregnant with their second child. [Applicant 2] has two [sons].

    CLAIMS AND EVIDENCE

27. In summary the applicants claim to fear persecution from the Vietnamese authorities and anti-Catholic members of the public on return to Vietnam as Catholics who have protested against the government. They also fear persecution as failed asylum seekers who departed Vietnam illegally.

28. Although for reasons above the Tribunal has found the second SHEV application was invalid, in their oral and written submissions to the Tribunal the applicants rely on claims and submissions made in respect of all applications (as does the representative), which the Tribunal has summarised and considered below where relevant.

    [Applicant 1]: First SHEV application (December 2016)

29. [Applicant 1]’s initial protection claims were detailed in his first SHEV application and in an accompanying statement dated 10 December 2016. In it he sets out his background; difficulties he faced in Vietnam as a Catholic who attended anti-government protests; and fears if he had to return there. In summary he claimed:

    ·To be a Catholic and member of the Cau Ram Youth Group who attended church and other religious events including anti-government protests at a police station.

    • This led to confrontations with the state authorities and anti-Catholic members of the public.
    • In 2012 he was stopped by two police officers when walking to church who wanted to know where he was going. They threatened him and told him to stop going to church and youth group or else he would be beaten.
    • He had many confrontations with the police afterwards because he did not comply.
    • He was beaten in late 2012 by plainclothes authorities.
    • His parents suggested he go to Australia with his brother.
    • He fears anti-Catholic state authorities and state-sponsored thugs as a Catholic if he has to return to Vietnam.
    • He has heard persons returning there are detained and beaten.
    • His parents told him not to return as it is too dangerous for Catholics.
    • The Vietnamese authorities hire thugs and hooligans to suppress the growth of Catholicism.
    • He continues to practise his Catholic religion and if he relocated, his identity would be exposed.

30. [Applicant 1]’s representative provided a written submission to the Department dated 20 October 2017 in which they addressed some inconsistencies with [Applicant 1]’s evidence raised at the interview with the delegate, as well as country information to support his claims. They also provided a translated copy of a Vietnamese police summons relating to his brother, [Applicant 2].

31. The delegate was satisfied [Applicant 1] was a practising Catholic who had some involvement with the Cau Ram Youth Group and participated in charity events. Also that he had some involvement in anti-government protests: although minimal and low level. However the delegate did not accept his claims to have been beaten at a protest; that people were continuing to look for him and attending his home; that the police had issued a summons for him to attend the police station; or that he had an adverse profile in Vietnam due to his religion or any activities undertaken by him in Vietnam or Australia. The delegate reached this conclusion due to several inconsistencies with [Applicant 1]’s evidence, among other concerns.

    [Applicant 1]: Second SHEV application (October 2020)

32. [Applicant 1] provided a copy of his December 2016 statement with his second SHEV application in October 2020, and indicated he was relying on the same claims.

33. The delegate in respect of the second SHEV application whilst accepting [Applicant 1] was a Catholic who participated in Cau Ram Youth Group activities in Vietnam, and had departed illegally, did not accept he experienced any problems as a result, or that he attended any anti-government protests in Vietnam as claimed.

    [Applicant 2]: First SHEV application (December 2016)

34. [Applicant 2]’s initial claims were set out in his first SHEV application and in an accompanying statement dated 19 December 2016. In it he sets out his background; difficulties he faced in Vietnam as a Catholic who attended anti-government protests; and fears if he had to return there. In summary he claimed:

    ·That he began practising Catholicism at a young age and at [age] joined Cau Ram Youth Group and remained a member until he left Vietnam.

    ·He attended church proceedings and religious events around the city, including anti-government protests at a police station.

    ·In 2011 he became a senior leader of the Cau Ram Youth Group and had several run-ins with the authorities and anti-Catholic members of the public.

    ·In July 2012 he attended a protest in Con Cuong with other Cau Ram Youth Group members to demand an end to ongoing persecution of Catholics. Police arrived in riot gear and beat protesters, and he was struck on the head and back with a baton and taken to hospital. He still has scarring on his [body].

    ·Afterwards many anti-Catholic thugs threatened him, came to his home and yelled at him. They threatened to beat him and kill him.

    ·Before he departed the country he lived with his family for two months then with his uncle in Dak Lak province and grandmother in Vinh, Nghe An, moving back and forth. He became suspicious of being monitored.

    ·He fears anti-Catholic authorities and state-sponsored thugs as a Catholic.

    ·He has heard persons who return to Vietnam are being detained upon arrival and beaten.

    ·His parents told him not to return, as the situation is too dangerous for Catholics.

    ·The authorities do not like Catholics and oppress them throughout the country. They hire thugs and hooligans to suppress them.

    ·Even if he moves he will continue to practise and if relocated his identity will be exposed.

35. The representative provided to the Department a copy of a police summons with translation which requested [Applicant 2] attend a police station in Vietnam in March 2013. The delegate requested the original police summons however no response or original was provided by the date of the delegate’s decision.

36. The delegate accepted [Applicant 2] was a Catholic who was involved in church activities with Cau Ram parish but only at a low level. Due to credibility concerns they did not accept he was responsible for the youth group’s activities in the July 2012 protest or that he was beaten at the protest; or that people were continuing to look for him and attending his home; or that the police issued a summons for him to attend the police station in 2013.

    [Applicant 2]: Second SHEV application (October 2020)

37. [Applicant 2] provided a further statement dated 21 October 2021 in support of his second SHEV application which is similar to his claims made in his first statement. In it he also provides an update about his activities and circumstances in Australia, stating in summary as follows:

    ·He is very vocal and active in his stance against the government of Vietnam, particularly on [social media]. He believes the government treats citizens unfairly and is corrupt.

    ·He would be considered a threat and will face discrimination and persecution for expressing his opinion.

    ·He has to protect his wife and son.

38. The representative provided to the Department a written submission dated 29 January 2021, in which they addressed some concerns raised at [Applicant 2]’s interview with the delegate, identified the protection grounds, and referred to country information to support their contention that [Applicant 2]’s fears on return to Vietnam are well founded.

1. Also provided was a collection of screenshots of [Applicant 2]’s [social media] posts (in the name of ‘[Alias 1]’) from 2018 to 2020.

2. The delegate in relation to [Applicant 2]’s second SHEV application accepted he was Catholic, and a member of the Cau Ram Youth Group who participated in protests regarding church land confiscation including the Con Cuong protest in 2012, and that he was beaten by the authorities at this event. However, the delegate was not satisfied he was a senior leader of the youth group or responsible for planning youth group activities including the Con Cuong protest, due in large part to inconsistencies in his evidence, and lack of detail. They also did not accept he was threatened and taunted outside his family home and actively monitored as claimed. The delegate also found [Applicant 2]’s claim that he was summoned by the authorities to have been contrived.

   REVIEW APPLICATIONS

3. The applicants gave oral evidence to the Tribunal about their reasons for leaving Vietnam and fears on returning there now, summarised as follows.

   [Applicant 1]’s oral evidence

4. At hearing [Applicant 1] told the Tribunal he was only around [age] when he left Vietnam. He had been living with his parents and siblings in their family home in Vinh city, where he grew up. He was attending school up until he participated in a protest in Con Cuong in mid-2012 along with [Applicant 2] and other members of his church (Cau Ram), where he was beaten and hospitalised. Thereafter his parents wanted him to stay home, which he did.

5. [Applicant 1] said this was the first protest he was involved in, and the first time he had been assaulted by anyone. On one occasion he was stopped by some people when going to his church – Cau Ram – to pray who told him to stop doing so.

6. [Applicant 1] said he is unsure if the authorities enquired about him via his parents after he left Vietnam, but said he thinks police went to his parents’ house once and broke something: he is not sure why or of any details.

7. [Applicant 1] said because he left Vietnam illegally, as a young boy, he is unsure what might happen to him on return, noting the Vietnamese authorities consider his departure a crime. He has studied in Australia, has work and a family and is afraid he will not be able to survive if he has to return to Vietnam.

   [Applicant 2]’s oral evidence

8. [Applicant 2] said he was a leader of a youth group at his local church (Cau Ram) in Vietnam for around three to five years before he left Vietnam. He was responsible for planning various activities including sports and demonstrations.

9. [Applicant 2] told the Tribunal he left Vietnam in March 2013 because he had been involved in anti-government protests there, the last one in Con Cuong in 2012 where he was beaten and faced verbal threats and harassment from people he assumed were linked to the authorities thereafter. Many others from his church group who had attended the Con Cuong protest (following their priest being attacked a few weeks earlier) had been arrested and he was afraid the same thing might happen to him.

10. [Applicant 2] provided more detail about the Con Cuong protest and his role. He explained that he was one of the people from his church who organised and then led a group of Catholic youths to attend the protest in Con Cuong, which is located around 40 or 50 kilometres from his village. He rode his motorbike, along with [Applicant 1]. He said when they arrived a lot of people had already blocked the road, not allowing them to enter the area. Many people arrived with sticks and batons and started to attack the group. [Applicant 2] said they ran away and the crowd dispersed but some fell to the ground and were beaten by people in plainclothes as well as police. He was hit on his head around his shoulder and back. He managed to escape and was taken by friends on their motorbikes to a hospital near where they live in Vinh city. [Applicant 2] said he was treated there and stayed for one or two days before returning home.

11. [Applicant 2] said his brother, [Applicant 1], was also injured in the protest and taken to the same hospital where he stayed a little longer than he did before returning home.

12. [Applicant 2] explained that prior to the Con Cuong protest he, along with other church members, was involved in protests against the government seizing Cau Ram church land (for example), which had been going on for years. This included demonstrations at sites where supermarkets were being built on former church land. He also put his name on letters written by their priest to the authorities to protest the land seizures, in around 2010 and 2011 in particular.

13. [Applicant 2] said he could not remember exactly when these protests took place, and over what time period. He remembers being warned by a policeman that he should not go to these demonstrations but was unable to recall when.

14. After the Con Cuong protest [Applicant 2] said he received anonymous threatening phone calls and text messages telling him he might be killed if he continued to attend protests. Immediately after the protest there were also people wearing plainclothes around his house who would stop him if he tried to go outside and generally restrict his movements. He thinks they were from the local government trying to stop him attending any further demonstrations and also to find more evidence in order to arrest him. As well, around a week after the Con Cuong protest he was stopped on his motorbike by men who warned him. Shortly after, he left his home, moved to his uncle’s house in Dak Lak province several hundred kilometres away for a couple of months, then back to Vinh city but to his grandmother’s house closer to his village in order to see what the situation was like.

15. [Applicant 2] said although he managed to get out of his village he heard many people in the same group as him had been arrested. After he left Vietnam he called his parents who said many others in their group had been arrested. His parents said strangers were still looking around their house at times.

16. Additionally [Applicant 2] said his father told him after he was released from detention (in Australia) that police had visited their home and delivered a summons for him to attend the police station. He was unsure of the date but said it has long since passed. When he did not attend the police station [Applicant 2] said the police visited his parents who told them he was no longer there. Sometime later local government officers and police came to his parents’ house to request them to remove some construction at the back of their house, which they did. [Applicant 2] said the police no longer ask where he is, although his parents still recommended he does not return to Vietnam.

17. [Applicant 2] also described his involvement in demonstrations against the Vietnamese government in Australia over the years. For example in around 2019 he attended a protest in front of parliament in Melbourne over the arrest of Chau Van Kham, a Viet Tan member from Australia whilst he was visiting Vietnam. He also attended a protest in Canberra in 2015 or 2016 when the then Vietnamese Prime Minister, Nguyen Tan Dung visited, demanding a multi-party regime.

18. [Applicant 2] said some of the protests he attended in Australia have been organised by members of the Viet Tan group who promote human rights and advocate for freedom in Vietnam. He said he was in the process of becoming a member: he sent them an application (prior to COVID) and has been involved in events and demonstrations.

19. Additionally he said before COVID-19 he was active on [social media] sharing articles critical of the Vietnamese government under the name of ‘[Alias 1]’. He has been less active since he married and had children.   As a result [Applicant 2] said he is concerned the authorities may harass him on return. He believes his face could have been captured showing his involvement in such protests. Combined with his protest activities in Vietnam in the past, and illegal departure – which will result in questioning by the authorities on return – [Applicant 2] said he is fearful of being mistreated by the authorities there.

20. The representative provided a post-hearing written submission to the Tribunal dated 6 March 2023 in which he reiterated the applicants’ claims, emphasised that their fears of persecution are well founded, and addressed some specific concerns raised at hearing, discussed where relevant below.

    FINDINGS ABOUT [APPLICANT 2]’S PAST EXPERIENCES AND PROFILE

21. Considering the evidence before it, including [Applicant 2]’s oral evidence at hearing, the Tribunal makes the following findings about his past experiences in Vietnam (and Australia) relevant to his protection claims, and extant profile.

    Fears as a politically active Catholic

22. The Tribunal accepts [Applicant 2] is a Catholic and in Vietnam regularly practised his religion, including by attending Cau Ram church in Vinh city. It accepts he remains a practising Catholic and would be on return to Vietnam. The Tribunal also accepts in Vietnam [Applicant 2] was a member of his church’s youth group and one of its leaders from around 2011. It accepts his role included planning various activities, including sports and demonstrations against government seizure of church land, for example, as well as that he added his signature on letters of protest authored by his local priest. He indicated as such at his entry interview, stating that he attended anti-government protests because they used force to take church land.[1]

    [1] As indicated in the delegate’s decision, a copy of which [Applicant 2] provided to the Tribunal on review.

23. Although he failed to mention he was one of the church leaders at his entry interview, [Applicant 2] did indicate as such in his statement provided in support of his first SHEV application (in 2016), and subsequently, and his evidence on this matter has been generally consistent, even if not particularly sophisticated. At hearing he was able to explain in reasonable detail his role in this regard, and the context in which he was involved in such activities, for example in relation to longstanding issues between the church and government over land seizures. Country information before the Tribunal indicates that land disputes have been reported between the Catholic church and the Communist government of Vietnam, including in Nghe An province.[2]

    [2] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.28.

24. The Tribunal also accepts [Applicant 2]’s claim at hearing that he was warned by police once not to attend a protest. He was somewhat vague about when this occurred and the context, but this is not surprising given the passage of time. Given the Tribunal accepts he was involved in the Cau Ram Youth Group as its leader at one stage, and helped organise activities including protests, and country information indicates tensions between church community members and the authorities around this period, the Tribunal finds this plausible.

25. In his statements provided in support of both SHEV applications [Applicant 2] stated that he attended countless church proceedings and religious events around the city, including anti-government protests at a police station, and had numerous confrontations with the state authorities and anti-Catholic members of the public. However at hearing he was vague about specific clashes and did not mention anything about attending protests at police stations. Therefore, whilst the Tribunal accepts [Applicant 2] was involved in some protests in the past in Vietnam it does not accept these included protests at police stations. It is of the view [Applicant 2] may have exaggerated the level of confrontations between himself and the authorities in his written statements provided to the Department in this respect.

26. The Tribunal also accepts [Applicant 2] attended a protest in Con Cuong in July 2012 where he was beaten by the authorities (and/or members of the public, possibly engaged by the authorities) and sustained injuries requiring hospitalisation. He has consistently claimed as such, from as early as his entry interview and subsequent submissions (in writing and orally) to the Department, which he reiterated and expanded upon at the Tribunal hearing. There have been some inconsistencies in his evidence in this respect, which caused the delegate to doubt his claims: for example whether he attended the protest by foot or motorbike. However he has since clarified that he attended by motorbike, given the distance between his city and Con Cuong, which the Tribunal accepts. The Tribunal also notes his evidence about who attended the protest and beat him (and others) changed from police in riot gear in his statements provided in support of both SHEV applications, to being somewhat vaguer at hearing: that is, possibly plainclothes police, although he noted he saw some people in uniform. When asked about this at hearing [Applicant 2] said it was very chaotic, with many people being beaten by many others. He saw some persons in uniform but does not remember who beat him specifically. The Tribunal is willing to accept [Applicant 2]’s changing evidence in this respect can be attributed to the face he was involved in a chaotic and traumatic event than him fabricating this aspect of his claims. Country information indicates that thousands of Catholics amassed in Con Cuong to protest against government acquisition of Catholic land (among other things) in this period, and monitoring and arrests in the immediate aftermath.[3]

    [3] ‘Report on Violations of Religious Freedoms in Vinh Diocese – Nghe An – Vietnam’, To: Special Rapporteur of the United nations on Freedom of Religion or Belief, Democratic Voice of Vietnam - Report on Violations of Religious Freedom in Nghe An 2011-2013, ‘Vietnam: mass protests after government crackdown on Catholic Church’, ICN Independent Catholic News, 15 July 2012, Vietnam: mass protests after government crackdown on Catholic Church | ICN, ‘Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom’, 16 July 2012, VIETNAM - VATICAN Government deploys tanks as over 10 thousand Vinh diocese faithful march for religious freedom, ‘Vietnam, Vatican Explore Prospects of Restoring Full Ties’, Radio Free Asia, 10 September 2014, >

    On this basis the Tribunal accepts that [Applicant 2] is a Catholic and was a leader of the Cau Ram Youth Group who helped organise members of his youth group to attend the protest in Con Cuong in mid-2012, upset that a priest had been attacked a few weeks earlier (among other things) as claimed. It accepts he was attacked and injured whilst at the protest.

27. For reasons below the Tribunal does not accept [Applicant 1] attended this protest with [Applicant 2] and [Applicant 2]’s continued assertions that he did cast some doubts on his credibility in this respect. Nonetheless, given the other strong aspects of [Applicant 2]’s evidence, the Tribunal finds this does not undermine his claims in this respect in their entirety.

28. The Tribunal accepts [Applicant 2]’s claims that after the Con Cuong protest he received threatening phone calls and had people – whom he referred to as ‘anti-Catholic thugs’ in his statements provided in support of his first and second SHEV applications – visit his home on occasion and yell at him. Also that he was stopped at times by people he assumes belonged to the local authorities, trying to restrict his movements, as well as warned by men on a motorcycle shortly after the protest not to continue to protest. This accords with country information about the authorities monitoring protestors.

29. The Tribunal notes inconsistencies in [Applicant 2]’s evidence about his living circumstances after the Con Cuong protest until he left Vietnam in 2013. For example in his statements provided in support of his first and second SHEV applications he states he lived with his family for two months after the protest then moved back and forth between his uncle’s home in Dak Lak province and his grandmother’s home closer to Vinh, as he was suspicious of being monitored. However at hearing he said he went to his uncle’s house less than a week after the protest, and sometime later moved to his grandmother’s house. Also [Applicant 1] had indicated in an earlier interview with the delegate that [Applicant 2] had stayed home during this period (as set out in the delegate’s decision record). For these reasons the Tribunal is of the view [Applicant 2] exaggerated his claims to be in hiding during this period. Nonetheless, given it accepts he attended the Con Cuong protest where he was beaten and helped organise and mobilise others to attend, and country information about the authorities’ clampdown on protestors (and monitoring and in some cases harassment thereafter) the Tribunal accepts he may have limited his movements during this time, and been wary about being monitored. It also accepts his claims that he heard some members of his youth group had been arrested around this time, and this was part of the reason he decided to make preparations to leave the country.

30. As noted, [Applicant 2] claims his father received a summons notice for him to attend the police station [in] March 2013. When he failed to attend [Applicant 2] said the police visited his parents who told them he was no longer there. He did not indicate any follow-up occurred after that visit. [Applicant 2] provided a translated copy of the summons notice to the Department and did not respond when the delegate requested the original. At hearing he said he could not get the original – which was with his parents – in time, but believed his parents still had it. The Tribunal therefore granted him additional time to provide the original. However in a post-hearing submission the representative advised [Applicant 2]’s parents told him (when he contacted them after the hearing) they no longer have the notice in their possession, noting 10 years had passed since it was received.

31. The applicant’s failure to provide the original summons notice to the Department and Tribunal, including after he indicated at hearing his belief that his parents still held it, combined with DFAT’s advice that document fraud involving doctoring documents is common in Vietnam,[4] leads the Tribunal to question the authenticity of the summons notice.   Also the fact [Applicant 2] failed to mention the summons in his (December 2016) statement provided in support of his first SHEV application and at his first SHEV interview (as indicated in the second SHEV decision record), despite indicating subsequently that it was received in 2013.

    [4] DFAT Country Information Report: Vietnam, 11 January 2022 at 5.42.

32. Given these concerns the Tribunal does not accept [Applicant 2] was summoned to the police station in Vietnam sometime after his departure as claimed and does not accept the police enquired about him via his parents. It gives no weight to the copy of the summons notice provided. Given the concerns with [Applicant 2]’s evidence in this respect, the Tribunal is of the view he embellished this part of his claim, to strengthen his case for protection overall.

    Political activism in Australia

33. The Tribunal has considered [Applicant 2]’s claims to have been politically active in Australia by criticising the Vietnamese authorities online and by attending protests against them here, as well as his motivations for doing so.

34. Based on the evidence before it, including [Applicant 2]’s oral evidence at hearing and copies of a selection of social media posts provided to the Department, the Tribunal accepts [Applicant 2] has been active on social media and in attending anti-Vietnamese government protests in Australia. It accepts his evidence that he became active in around 2015 to around 2020, but less so since then because he has been busy getting married and has had children.

1. At hearing [Applicant 2] told the Tribunal he attended protests in Australia with the Viet Tan, shared their material online, and applied to join their Victorian branch (and awaits an outcome). He said he did so for similar reasons he was involved in anti-government protests in Vietnam: to demand freedom of religion, freedom of speech and overall protection of human rights. In his submission to the Tribunal the representative argues that [Applicant 2]’s motive for engaging in activities in Australia – namely his social media activity and attendance at gatherings in protest of the Vietnamese government – is genuine and consistent with his activities in Vietnam and his Catholic faith.

2. The Tribunal notes at hearing [Applicant 2]’s knowledge of Viet Tan was limited. He spoke in general terms about their work promoting and advocating for human rights in Vietnam but knew little about how the group is organised, when it was founded, and by whom (for example). He also had not mentioned Viet Tan specifically in his statement provided to the Department in support of his second SHEV application, although he did at interview. Nonetheless he was able to describe their purpose and approach in general terms and appeared motivated to join the group to continue promoting human rights and freedom of religion (among other things) in Vietnam.

3. Whilst the Tribunal considers initially that [Applicant 2] may have been in part motivated to become politically active in Australia in order to strengthen his refugee claims, it was evident at hearing that he has become invested and it appears his sense of injustice about the way certain people in Vietnam are treated has grown and expanded. Further, his actions are consistent with his protest activity and sense of grievance around religious freedom (among other things) as expressed in the past in Vietnam.

4. Accordingly, the Tribunal is satisfied [Applicant 2] engaged in such conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee, and therefore has not disregarded that conduct as per s 5J(6) of the Act.

5. The Tribunal accepts he would continue to agitate against the Vietnamese government on return in some way, if not for fear of persecution in doing so.

   [Applicant 2]: Well-founded fear of persecution in the future

6. Given these findings about [Applicant 2]’s past experiences in Vietnam, conduct in Australia, and his profile, the Tribunal has gone on to consider if he faces a well-founded fear of persecution from the authorities and/or community for a refugee reason on return to Vietnam in the foreseeable future. In doing so it has considered independent country information about the situation for politically active Catholics in Vietnam, among other things.

7. In their submission to the Tribunal the representative contends that [Applicant 2] faces a well-founded fear of persecution on return to Vietnam on cumulative grounds, including on imputed or real political opinion grounds as someone who has protested against the government in Australia and Vietnam. He refers to a 2018 UK Home Office report that states  the Viet Tan is viewed as a terrorist group by the Vietnamese government and those who can demonstrate they have come to the adverse attention of the authorities for their membership of an illegal political opposition group are likely to be at risk of persecution and/or serious harm.[5]

   [5] UK Home Office, ‘Country Policy and Information Note Vietnam: Opposition to the State’, September 2018, 2.4.2–2.4.3.

8. The representative argues that it is plausible [Applicant 2] will be questioned on return and that his activities in Australia will become known, referring to DFAT advice that the authorities occasionally question returnees from Australia upon their arrival in Vietnam, mainly to obtain information about the facilitation of any illegal movement on their part. Particularly as someone who departed Vietnam illegally and who has received a police summons. Additionally he argues that there is also a risk [Applicant 2] can be identified from surveillance of the demonstrations in Australia and his social media activity.

9. Furthermore if [Applicant 2] were to engage in similar activities on return to Vietnam he faces a risk of serious harm from the authorities, the representative contends.  He refers to country information showing direct action against bloggers and those active on social media by the Vietnamese government (referred to in the US Department of State report of 2020), including imprisonment.

10. For the reasons that follow the Tribunal accepts that [Applicant 2] faces a real chance of serious harm from the authorities based on his Catholic religion and anti-government political opinion (real or imputed) on return to Vietnam in the foreseeable future. In reaching this conclusion the Tribunal has taken into account these submissions, what it accepts of [Applicant 2]’s claims and profile and relevant country information, as follows.

11. Country information indicates limited government tolerance in Vietnam for direct political opposition and advocacy of a multi-party political system.[6] Some members of illegal opposition parties are subject to arrest and imprisonment.[7]

    [6] 'Domestic and Foreign Policy in Vietnam: The Future of Vietnamese Civil Society', Carl Thayer, Georgetown Journal of Asian Affairs, 2019; 'The State in a Capitalist Society: Protests and State Reactions in Vietnam and Indonesia', Wischermann, Jorg; Phuong Dang, Thi Viet & Sirait, George Martin, Journal of Contemporary Asia, 6 April 2022, p. 15.

    [7] 'Freedom in the World 2023 - Vietnam', Freedom House, 13 March 2023, B1; 'Domestic and Foreign Policy in Vietnam: The Future of Vietnamese Civil Society', Carl Thayer, Georgetown Journal of Asian Affairs, 2019.

12. In their most recent country information report DFAT state that Vietnam is a one-party state, opposition parties are effectively illegal, and threats to the legitimacy of the Communist Party of Vietnam (CPV) are seen as threats to the state and not tolerated. They state that protestors on topics the government deem sensitive, or ‘red line’ topics such as human rights, environmental or land use protests and calls for democracy, have faced arrest and other initiatives to prevent activities. According to DFAT activists also report physical and electronic surveillance.[8] DFAT assess that whilst 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.[9]

    [8] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.49–3.57.

    [9] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.57.

13. According to the US Department of State in their 2022 human rights country report on Vietnam, the Vietnamese government continued to restrict speech that criticised individual government leaders or the party, promoted political pluralism or multi-party democracy, or questioned policies on sensitive matters, such as human rights, religious freedom or sovereignty disputes with the People’s Republic of China. Representatives from state-run organisations and pro-government groups visited activists’ residences and attempted to propagandise or intimidate them into supporting government policies, according to social media and activists’ reports.[10]

    [10] Country Reports on Human Rights Practices for 2022 – Vietnam, US Department of State, 20 March 2023.

14. In the same US Department of State report it states that family members of activists also reported numerous incidents of physical harassment, intimidation and questioning by Ministry of Public Security officials.[11] This was also indicated in the 2018 UK Home Office report, which stated that family members of activists, journalists and bloggers have been subject to physical assaults, harassment, intimidation, arrests and denied some services.[12]

    [11] Country Reports on Human Rights Practices for 2022 – Vietnam, US Department of State, 20 March 2023.

    [12] UK Home Office, ‘Country Policy and Information Note, Vietnam: Opposition to the State’, September 2018 at 2.4.22.

15. DFAT note that street protests still occur in Vietnam, but much protest has now moved to online platforms.[13] In respect of treatment of online activists and social media users, country information indicates government repression ranges from electronic harassment, fines and in some cases arrest and imprisonment. Harassment may include summons of individuals to speak to police at police stations[14] and short-term detention.[15] There are also reports of kidnapping activists who refuse invitations to speak to police,[16] physical assaults[17] and arrests.[18] Sources also indicate that activists’ families are sometimes subject to harassment and abuse.[19]

    [13] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.51.

    [14] 'Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam', The 88 Project & the Global Human Rights Clinic of the University of Chicago Law School, 1 November 2021, p.13; 'Freedom on the Net 2022 - Vietnam', Freedom House, 18 October 2022.

    [15] ‘Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 19.

    [16] 'Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam', The 88 Project & the Global Human Rights Clinic of the University of Chicago Law School, 1 November 2021, pp.9, 13.

    [17] 'Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam', The 88 Project & the Global Human Rights Clinic of the University of Chicago Law School, 1 November 2021, p.9; 'Freedom on the Net 2022 - Vietnam', Freedom House, 18 October 2022.

    [18] 'Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam', The 88 Project & the Global Human Rights Clinic of the University of Chicago Law School, 1 November 2021, p.9; ‘Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, p. 19.

    [19] 'Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam', The 88 Project & the Global Human Rights Clinic of the University of Chicago Law School, 1 November 2021, p.9.

16. Clauses in Vietnam’s Criminal Code may allow non-violent political acts to be proscribed under national security provisions although individuals may only be expressing support for democracy or criticising the government.[20]

    [20] 'Submission to the United Nations Human Rights Committee on the Third Periodic Report of

17. DFAT state that social media, especially Facebook, has become a popular option for expressing opinion, more so than street protests; that the authorities closely monitor online activities; that human rights activists claim there are thousands of agents monitoring online discussion and blogs; and that there is trolling online by a government organisation known as ‘Force 47’, who is allegedly active on topics such as religion, women’s and LGBTI rights and human rights generally.[21]

    [21] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.61.

18. DFAT state further that 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 when 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; that frequent posting online increases the risk of attention from authorities; and that 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.[22]

    [22] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.63.

19. DFAT conclude that 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 people. Nonetheless they assess that online activists face a moderate risk of official discrimination and that a repeated pattern of online activity would generally, but not always, attract the attention of the authorities. DFAT also state that while a high profile may not be necessary to attract authorities’ attention, it is likely a repeated pattern of online activity would be required to do so.[23]

    [23] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.64.

20. There are reports indicating that profiles of those targeted for online activism more recently include high-profile activists and those with little or no history of activism.[24]

    [24] ‘Human Rights Report 2021 – Vietnam’, The 88 Project, 9 May 2022, p 5.

21. According to the US Department of State in their 2022 human rights country report on Vietnam, the Vietnamese government monitored Facebook and other social media and punished those who used the internet to organise protests or publish content critical of the government. Some independent journalists and bloggers have been arrested for posts and videos that criticised the Vietnamese government. Threshold topics included criticism of individual government leaders or the party, promotion of political pluralism or multi-party democracy, and questioning policies on sensitive matters, such as human rights, religious freedom or sovereignty disputes with the People’s Republic of China.[25]

    [25] Country Reports on Human Rights Practices for 2022 - Vietnam', US Department of State, 20 March 2023, 20 March, p. 14.

22. Other sensitive topics deemed off-limits for online discussion include criticism of the Communist Party or state officials, particularly high-level leaders like members of the Politburo, criticism of the police or army, human rights issues, corruption in State institutions and restrictions on freedoms.[26]

    [26] 'Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam', The 88 Project & the Global Human Rights Clinic of the University of Chicago Law School, 1 November 2021, p.12.

23. Freedom House suggest that the unpredictable and non-transparent ways in which topics become prohibited make it difficult for online users to know what areas might be off-limits.[27]

    [27] 'Freedom on the Net 2022 - Vietnam', Freedom House, 18 October 2022, B4.

24. In terms of religious freedom and treatment of adherents to Catholicism (among others) country information indicates that Vietnam is officially an atheist state.[28] The number of Catholics is estimated at around 7% (7 million)[29] and whilst they reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh provinces).[30]

    [28] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.13.

    [29] United States Commission on International Religious Freedom (USCIRF), Annual report 2021, April 2021.

    [30] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.22–3.23.

25. Vietnam’s constitution allows for religious freedom and states that all religions are equal before the law. In January 2018 a Law on Belief and Religion came into effect which requires religious communities to register their activities, places of worship and organisations. The law allows the government to restrict religious activities in the interests of ‘national interest’, ‘public order’ and ‘national unity’. All activities, including those which are routine, have to be registered in advance. Only registered organisations are allowed to operate.[31]

    [31] UK Home Office, ‘Country Policy and Information Note, Vietnam: Ethnic and Religious minority groups’, February 2022 at 2.4.33–2.4.35.

26. Country information indicates the Vietnamese government generally respects the religious freedom of registered groups as long as they comply with regulations and local attitudes and interests and are not a perceived threat.[32]

    [32] UK Home Office, ‘Country Policy and Information Note, Vietnam: Ethnic and Religious minority groups’, February 2022 at 2.4.36.

100.   On this issue DFAT report that:

Those that are not registered may be pressured by Government to join the registered group. Among unregistered groups a further distinction can be made between those groups that have some (perceived) political or foreign agenda and those that do not. Different people of different religions in different areas will also have different experiences, depending on local authorities. Those in cities are less likely to experience official interference.

…The extent of difficulty that a religious group could expect to face from authorities (for example, refusal of registration, questioning or disruption of activities) can depend on where they are located. Many claims of Government interference are at the hands of local and provincial authorities rather than national authorities. Attitudes and policies can differ between authorities.

Many incidents relate to religious groups that are politically active in local land or environmental disputes. It can be difficult to distinguish between religious and political claims. The distinction is not necessarily apparent in the everyday experiences of religious adherents or the authorities, either or both of whom may see religious activity as inherently political.

There are several high-profile examples of religious figures who have advocated for religious freedom and been imprisoned. Such cases are fewer in recent years but those who have been arrested and imprisoned in the past might still be under surveillance by authorities or summoned for regular interrogation. DFAT understands this is generally limited to questioning and surveillance and not violence.

… Adherents associated with unregistered religious groups generally face more restrictions, which vary depending on region, ethnicity, and any perceived or actual involvement in religious freedom advocacy or political activism.[33]

[33] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.15–3.21.

101.   Overall DFAT assess that Catholics who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.[34]

[34] DFAT Country Information Report: Vietnam, 11 January 2022 at 3.31.

102.   This assessment accords with that of the UK Home Office in their 2022 report about ethic and religious minority groups in Vietnam, who state that:

In general, members of the Catholic church who belong to government registered Catholic groups and are not politically active are not at real risk of state persecution or serious harm. Where members of the Catholic church are/or perceived to be a political activist, including where they have been involved in the organising of protests or critical of the government then they may face treatment that is sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm.[35]

[35] UK Home Office, ‘Country Policy and Information Note, Vietnam: Ethnic and Religious minority groups’, February 2022 at 2.4.59.

103.   It is noted in the US Department of State’s 2022 Report on International Religious Freedom in Vietnam that many religious leaders in urban areas reported the authorities generally permitted them to practise as long as they cooperated with authorities and acted in accordance with legal and administrative requirements that apply to religious organisations. As well, many religious leaders across the country reported improved conditions compared to prior years, such as ‘better relations between unregistered religious groups and local authorities, quicker approval of permits for religious events, and a reduction in aggressive forms of harassment, such as regular questioning and threats’.[36]

[36] US Department of State 2022 Report on International Religious Freedom: Vietnam, 15 May 2023.

104.   However in the same report it was noted that:

Government officials in different parts of the country reportedly continued to monitor, interrogate, arbitrarily detain, and discriminate against some individuals, at least in part because of their religious beliefs or affiliation. A majority of the victims of the reported incidents were members of unregistered groups engaged in political or human rights advocacy activities or with ties to overseas individuals and organizations that were outspoken and critical of authorities. There were reports of local authorities banning and disrupting gatherings and confiscating publications of various religious groups. These included well-established ones like the Catholic Church.[37]

[37] US Department of State 2022 Report on International Religious Freedom: Vietnam, 15 May 2023.

105.   The report lists incidents for 2022 between the authorities and religious community members, which included clashes between police and local residents, many from a Catholic community seeking to prevent the demolition of a road at Nghi Thuan Commune in central Nghe An province. It states that police arrested at least 10 protestors, accusing them of ‘acting against persons on duty’ and ‘disrupting public order’.[38]

[38] US Department of State 2022 Report on International Religious Freedom: Vietnam, 15 May 2023.

106.   In an earlier US Department of State report from 2020 it is stated that ‘Media sources continued to report tension and disputes between Catholics and the authorities in Vinh and Ha Tinh Dioceses in the central provinces of Nghe An and Ha Tinh, mostly over land disputes or relating to human and environmental rights advocacy activities’.[39]

[39] US Department of State 2020 Report on International Religious Freedom: Vietnam, 12 May 2021.

107.   In its 2023 World Report (covering events in 2022) Human Rights Watch state the following about Vietnam, relevantly to this case:

Vietnam systematically suppresses basic civil and political rights; CPV severely restricts the rights to freedom of expression, association, peaceful assembly, movement and religion.

…

Critics of the government face police intimidation, harassment, restricted movement, arbitrary arrest and detention, and imprisonment after unfair trials. Police regularly hold political detainees for months without access to legal counsel and subject them to abusive interrogations. Party-controlled courts sentence bloggers and activists to long prison sentences on bogus national security charges.

…

Political dissidents and human rights activists face systematic harassment, intimidation, arbitrary arrest, abuses in custody, and imprisonment.[40]

[40] Human Rights Watch, World Report 2023, Vietnam: Events of 2022.

108.   Country information indicates that the Vietnam Reform Revolutionary Party (or Viet Tan) is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[41] It was declared a terrorist organisation by the Vietnamese government in 2016 and anyone involved was to be considered an accomplice to terrorism.[42] Other foreign-based opposition groups (for example the Brotherhood for Democracy) who campaign for human rights and democracy in Vietnam, with reported links to Viet Tan, have been accused of activities aimed at overthrowing the government,[43] and some individuals with links to Viet Tan have been sentenced to lengthy prison sentences for engaging in terrorist activities.[44] This includes Vietnamese Australian dual citizen and pro-democracy activist and member of Viet Tan, Chau Van Kham. He was sentenced to 12 years’ imprisonment in November 2019 after being convicted of ‘engaging in terrorist activities to oppose the government.’[45] In July this year he was released after negotiations with the Australian government, and returned to Australia, after spending several years in prison.[46]

[41] DFAT Country Information Report: Vietnam, 13 December 2019 at 3.47.

[42] 'Vietnam declares San Jose-based Viet Tan a terrorist group', Associated Press (AP), 7 October 2016.

[43] DFAT Country Information Report: Vietnam, 13 December 2019 at 3.47.

[44] DFAT Country Information Report: Vietnam, 13 December 2019 at 3.53; 'OSAC Country Security Report Vietnam', Overseas Security Advisory Council (OSAC), 12 July 2022, p. 3.

[45] DFAT Country Information Report: Vietnam, 13 December 2019 at 3.53.

[46] Ben Doherty, The Guardian, ‘Democracy activist Chau Van Kham says he wasn’t afraid of dying in Vietnamese prison’, 13 July 2023; and Hilary Whiteman, CNN, ‘Australian retiree accused of terrorism freed from prison in Vietnam’ 11 July 2023.

109.   In terms of treatment of failed asylum seekers, including those who departed Vietnam illegally, DFAT state that the authorities occasionally question returnees from Australia upon their arrival, and that the interview process takes between one and two hours and focuses on obtaining information about the facilitation of any illegal movement on their part.[47] DFAT state that those who use their time overseas to publicly oppose the government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in the section of their report that deals with Political Opinion (Actual or imputed) (parts of which have been referred to above) and the laws related to illegal emigration might apply to those people.[48]

[47] DFAT Country Information Report: Vietnam, 11 January 2022 at 5.31.

[48] DFAT Country Information Report: Vietnam, 11 January 2022 at 5.35.

110.   The UK Home Office in a 2019 fact finding mission report state that activists who return to Vietnam after seeking asylum overseas may face monitoring, with high-level activists facing more monitoring than low-level activists. People of particular interest to authorities may be required to have regular conversations or ‘catch ups’ with officials.[49]

[49] UK Home Office, ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, 9 September 2019, p.31.

111.   Such country information indicates to the Tribunal that Catholics perceived to be political activists of some description, in particular in relation to politically sensitive matters such as promoting a multi-party system and human rights, environmental issues and/or religious freedom, are at risk of being monitored, restricted and in some cases harmed and/or arrested by the authorities in Vietnam. In [Applicant 2]’s case, although his political activism in Vietnam last occurred over 10 years ago, and for reasons above the Tribunal has not accepted his claims he was summonsed to attend the police station after he left and that he may have exaggerated aspects of his claims in this respect, it accepts he was politically active to some degree in the past, and that he has been politically active in Australia more recently, by attending protests and sharing material online. This has included on sensitive topics such as promoting a multi-party system in Vietnam, and human rights in general, sometimes in concert with Viet Tan, a pro-democracy group proscribed by the Vietnamese government as a terrorist organisation. [Applicant 2] has sought to join this group and indicated he would want to continue to be politically active on return to Vietnam if not for fear of doing so. The Tribunal accepts his evidence in this regard. As noted, country information indicates those with perceived links to illegal opposition groups such as Viet Tan face risk of harassment and arrest by the authorities in Vietnam.

112.   Further, the above country information indicates that risk of arrest (among other things) even for low-level activists (including social media activists) cannot be discounted.

113.   Country information also indicates that members of the Catholic church perceived to be political activists, including where they have been involved in the organising of protests or critical of the government, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.

114.   The Tribunal also considers based on the above country information that it is likely [Applicant 2] will be questioned on return to Vietnam by the authorities about his illegal departure a decade prior. If so, his past history of activism against the Vietnamese government in Vietnam and Australia may become known. Even if not immediately, as the Tribunal accepts [Applicant 2] will be politically active on return to Vietnam (if not for fear of persecution in doing so) and is  Catholic, the Tribunal is satisfied he is likely to come to the adverse attention of the authorities in the reasonably foreseeable future. If so, based on the above country information and for the reasons set out above, the Tribunal is satisfied he faces a real chance of serious harm.

115.   Accordingly, the Tribunal accepts that should he return to Nghe An province, now or in the foreseeable future, there is a real chance [Applicant 2] will face serious harm from the authorities as required by s 5J(4)(b) of the Act in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment, for the purposes of ss 5J(5)(a) and 5J(5)(b). The Tribunal finds [Applicant 2]’s Catholic religion and imputed anti-government political opinion would be the essential and significant reasons for the persecution he fears, as required by s 5J(4)(a), as his risks arise due to him behaving in ways that are seen to undermine the legitimacy of the CPV. Additionally, that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reasons of his religion and imputed (anti-government) political opinion.

116.   Given [Applicant 2] fears the Vietnamese authorities, who exist nationally, the Tribunal is satisfied the real chance of persecution relates to all areas of Vietnam as per s 5J(1)(c), and that effective protection measures are not available to [Applicant 2] in Nghe An, provided by the state, party or organisation. The Tribunal finds that [Applicant 2] would not be able to access effective protection if returned to Vietnam for the purposes of s 5LA(2).

117.   Requiring [Applicant 2] to modify his behaviour would require him to alter or conceal his true religious and/or political beliefs, which is impermissible pursuant to ss 5J(3)(c)(i) and 5J(3)(c)(iii) of the Act.

118.   Consequently, the Tribunal is satisfied [Applicant 2] faces a well-founded fear of persecution as required under s 5J of the Act.

1. In considering whether he comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to [Applicant 2].

120. Additionally, there is no evidence before the Tribunal to suggest that [Applicant 2] has a right to enter and reside in a third country for the purposes of s 36(3) of the Act. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, [Applicant 2] is a refugee.

121.   Given this finding it is unnecessary for the Tribunal to consider whether [Applicant 2] faces a well-founded fear of persecution for the other reasons advanced or that arise in his case.

FINDINGS ABOUT [APPLICANT 1]’S PAST EXPERIENCES, PROFILE AND FUTURE FEARS

122.   In his submission to the Tribunal the representative contends that if [Applicant 2] were to be granted protection this would exacerbate the risk to [Applicant 1] since they are brothers who fled Vietnam for similar reasons and travelled to Australia together.

123.   The Tribunal has considered [Applicant 1]’s core protection claims and evidence. It accepts [Applicant 1] is a Catholic and in Vietnam regularly practised his religion, including attending Cau Ram church, and belonging to Cau Ram Youth Group. It accepts he remains a Catholic and would be on return to Vietnam.

124.   As noted at hearing, the Tribunal has several concerns with [Applicant 1]’s claims to have participated in a protest in Con Cuong in mid-2012 along with his brother, [Applicant 2] and other members of his church (Cau Ram), where he was allegedly beaten and hospitalised.  This is due to several reasons, including because [Applicant 1] failed to mention this claim at his entry interview, or in his first SHEV statement dated 10 December 2016.

125.   As well, at hearing he only did once prompted, and his oral evidence was vague. For example he said on the way back from the march he was beaten along with his brother and others by some kind of police, who injured [himself], and was taken to a clinic. However he could not provide any further description of those that allegedly attacked him or provide any further information or detail about the clinic and could not remember how he got there. The Tribunal also notes he did not mention that he was beaten unconscious, which is what he told the delegate at interview on 10 October 2017 in relation to his first SHEV application.[50]

[50] As set out in the delegate’s decision record, a copy of which [Applicant 1] provided to the Tribunal on review.

126.   In his written submission to the Tribunal the representative contends that weight should be given to the fact [Applicant 1] was only around [age] at the time of the incident and [age] at the time of his entry interview. Whilst the Tribunal agrees [Applicant 1]’s young age at the time of the alleged incident explains why he was somewhat unaware about the event, and possibly given it would have been traumatic, these concerns are significant and cannot account for why he failed to mention them at all at his entry interview or in his first SHEV statement, or why his oral evidence was so vague.

127.   Additionally at hearing [Applicant 1] failed to mention other key incidents that purportedly occurred as detailed in his December 2016 statement provided to the Department in support of his first SHEV application: for example being threatened by police when walking to church in 2012 and beaten by plainclothes authorities in late 2012. When asked specifically at hearing about these incidents, [Applicant 1] said he cannot remember. Whilst such events purportedly took place over 10 years ago, and when [Applicant 1] was young, the Tribunal would expect him to remember if they occurred or not, particularly given they involve allegations of threats by police and being beaten by plainclothes authorities.

128.   The Tribunal notes in his statement provided in support of the first SHEV application [Applicant 1] said he attended church and various religious events around the city, including anti-government protests at police stations and his involvement with the Cau Ram Youth Group caused him to have several run-ins with the state authorities as well as anti-Catholic general members of the public. However at hearing when asked if he was involved in any demonstrations or beaten or threatened by anyone else prior to the Con Cuong incident in mid-2012, he said ‘no’. He said he only remembers one time going to pray with a group of young people at Cau Ram and people stopped them and told them not to do it again. Yet he was unable to remember when this occurred, who stopped him or provide any further details.

129.   Given these concerns the Tribunal does not accept [Applicant 1] participated in any anti-government demonstrations in the past in Vietnam, nor that he was ever threatened, beaten or under surveillance by the authorities or others as a consequence. Specifically the Tribunal does not accept he was threatened by two police whilst walking to church and beaten by plainclothes authorities in late 2012 as claimed in his statement provided in support of his first SHEV application. Nor does it accept he was beaten and rendered unconscious and taken to hospital on the way back from a protest in Con Cuong in mid-2012 as claimed.

130.   It follows that the Tribunal finds that [Applicant 1] does not face a real chance of serious harm from the Vietnamese authorities or members of the public on return to Vietnam on account of his involvement in the Con Cuong (or any) protest activity in the past in Vietnam.

131.   However, for the reasons that follow the Tribunal finds [Applicant 1] faces more than a remote chance of serious harm from the authorities on return to Vietnam based on being a member of a particular social group consisting of his brother ([Applicant 2]’s) family. It considers his risk profile will be increased as a Catholic returning to Vietnam as a failed asylum seeker who had departed Vietnam illegally years before: the latter which will mean he is likely to face questioning by the authorities on return.

132.   The Tribunal notes a family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act, subject to s 5K, which requires that the persecution feared be for essential and significant reasons of membership or perceived membership of the group. As outlined above the Tribunal has found [Applicant 2] faces a well-founded fear of persecution on return to Vietnam for the combined reasons of his Catholic religion and imputed (anti-government) political opinion, which are refugee reasons.

133.   The Tribunal accepts [Applicant 1] and [Applicant 2] are brothers, and [Applicant 1] is a member of a particular social group of his brother’s family. What is also required is that the persecution feared be for the essential and significant reason of membership or perceived membership of the group. Although neither [Applicant 1] nor [Applicant 2] have indicated that anything has happened to their parents and siblings who remain in Vietnam on account of [Applicant 2]’s political activities and profile, the Tribunal notes the country information as set out earlier which indicates that family members of activists are sometimes subject to harassment and abuse. Even if this has not occurred to his family members who remain in Vietnam, the Tribunal considers [Applicant 1] faces more than a remote chance of facing serious harm from the authorities on return as [Applicant 2]’s brother, based on such country information, and given [Applicant 1]’s additional risk profile as someone returning as a failed asylum seeker who departed Vietnam several years prior illegally with [Applicant 2], in addition to his Catholic religion. The Tribunal accepts [Applicant 1]’s evidence that he departed Vietnam by boat in 2013 without a passport and would be returning to Vietnam as someone who had sought asylum in Australia. It accepts his status in this regard is likely to become known by the Vietnamese authorities on return, and he is likely to be questioned at least.

134.   For these reasons the Tribunal finds [Applicant 1] faces a real chance of serious harm from the authorities on return to Vietnam based on his membership of the particular social group of his family, and his Catholic religion.

135.   Accordingly, the Tribunal accepts that should he return to Nghe An, now or in the foreseeable future, there is a real chance [Applicant 1] will face serious harm from the authorities as required by s 5J(4)(b) of the Act in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment, for the purposes of ss 5J(5)(a) and 5J(5)(b). The Tribunal finds [Applicant 1]’s religion and membership of a particular social group consisting of his family would be the essential and significant reasons for the persecution he fears, as required by s 5J(4)(a), as his risks arise due to his association with his brother, who for reasons above the Tribunal has found faces a well-founded fear of persecution on return to Vietnam for refugee reasons. Additionally, that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reasons of his religion and membership of this particular social group.

136.   Given [Applicant 1] fears the Vietnamese authorities, who exist nationally, the Tribunal is satisfied the real chance of persecution relates to all areas of Vietnam as per s 5J(1)(c), and that effective protection measures are not available to him in Nghe An, provided by the state, party or organisation. The Tribunal finds that [Applicant 1] would not be able to access effective protection if returned to Vietnam for the purposes of s 5LA(2).

137.   Requiring [Applicant 1] to modify his behaviour would require him to conceal an innate or immutable characteristic of himself and/or alter or conceal his true religious beliefs, which is impermissible pursuant to ss 5J(3)(b) and 5J(3)(c)(i) of the Act.

138.   Consequently, the Tribunal is satisfied [Applicant 1] faces a well-founded fear of persecution as required under s 5J of the Act.

1. In considering whether [Applicant 1] comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to [Applicant 1].

140. Additionally, there is no evidence before the Tribunal to suggest that [Applicant 1] has a right to enter and reside in a third country for the purposes of s 36(3) of the Act. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, [Applicant 1] is a refugee.

141.   Given this finding it is unnecessary for the Tribunal to consider whether [Applicant 1] faces a well-founded fear of persecution for the other reasons advanced or that arise in his case.

CONCLUSION

142. For the reasons given above the Tribunal is satisfied that both applicants are persons in respect of whom Australia has protection obligations and they satisfy the criterion set out in s 36(2)(a).

DECISION

143.   The Tribunal:

a.Remits matter 1909756 (Safe Haven Enterprise visa application made on 23 December 2016) with the direction that:

The first named applicant satisfies s 36(2)(a) of the Migration Act;

b.Remits matter 1909758 (Safe Haven Enterprise visa application made on 23 December 2016) with the direction that:

The second named applicant satisfies s 36(2)(a) of the Migration Act; and

c.Sets aside the decision in matter 2203960 to refuse the applicants protection visas (Safe Haven Enterprise visa application made on 16 October 2020) and substitutes it with a decision that the visa application was not valid.

Nicole Burns
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.

…

Vietnam', Vietnam Committee on Human Rights, March 2019, pp.1, 2, 12.