2312682 (Refugee)

2312682 (Refugee) [2024] AATA 4156 (29 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dushan Nikolic
CASE NUMBER:  2312682
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tony Caravella
DATE:29 July 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 29 July 2024 at 11:28am
CATCHWORDS
REFUGEE – protection visa – Vietnam – Federal Circuit Court remittal – political opinion – child of parents who worked for former South Vietnam government – mother incarcerated and tortured – applicant’s study and employment opportunities limited – departures to and returns from another country and Australia – documented community, political and social media activities in Australia not for purpose of strengthening claim – extensive written submissions – country information – possible monitoring of social media and communications – members of family unit wife and Australia-born children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (5), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), r 1.12(4), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas on 12 August 2019. The delegate refused to grant the visas on the basis of finding that the first named applicant (the applicant) is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act). In relation to the second, third and fourth named applicants, the delegate refused to grant protection visas to them after finding each of these applicants do not satisfy s 36(2)(b) or s 36(2)(c) of the Act as they are not a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application and who is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) and s 36(2)(aa) of the Act.
The applicants then submitted an application for review by this Tribunal of the delegate’s refusal decisions. The Tribunal, differently constituted, affirmed the delegate’s decision. That decision was set aside by the Federal Circuit Court and remitted for reconsideration by that Court. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant and the second named applicant appeared before the Tribunal on 26 June 2024 and 10 July 2024 to give evidence and present arguments. The second named applicant did not give evidence at either hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia owes the applicants protection obligations pursuant to the relevant provisions in the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims made to the delegate
In an Application for a protection visa (Form 866) lodged with the Department on 12 August 2019, the applicant makes the following claims.
The applicant left Vietnam to avoid the ruling party’s dictatorship and discrimination against families that were involved with the old regime. He claims he wished to experience the world outside of Vietnam and to observe how people in foreign jurisdictions live and how other governments operate. He first left Vietnam in 2003 to work in [Country] and for a ‘mind opening opportunity’. After finishing work in [Country] in 2008 he returned to Vietnam to be with his family.
The applicant claims he left Vietnam in 2009 to live in Australia because Australia is a ‘nice country who upholds freedom and democracy values’. The applicant’s sister lives in Perth and encouraged him to study in Australia and to experience the Australian lifestyle and culture including freedom of expression under the Australian democracy.
The applicant claims he experienced harm in Vietnam. In particular, he claims his mother was incarcerated and tortured by the Communist government for nearly two years because she worked for the old regime. It is claimed his mother’s treatment resulted in lifelong harm to her mental and physical health. It is claimed his mother’s mental health condition affected the applicant’s mental health status as well. The applicant was severely distressed after witnessing his mother suffering from depression, fear and anxiety caused by the mistreatment by the communist regime. It is submitted the applicant has since lived in fear of being persecuted by the government for his political opinion.
It is also submitted that the applicant was discriminated against and his options for study and employment were limited due to his status as the son of parents who were involved with the old regime. In particular, it is submitted the applicant was not permitted to study certain tertiary subjects, including political sciences, and he could not hold certain positions in government.
He claims he cannot seek help because the Vietnamese authorities, including the police, are responsible for the persecution the applicant fears. It is also claimed the applicant has not relocated within his country because the Communist government and authorities responsible for the claimed persecution, including the police, have power throughout the entire country of Vietnam.
The applicant claims if he returns to Vietnam, he will be persecuted by the government due to his political opinion and due to his status as the son of parents who were involved with the old regime. He fears kidnapping, arrest and torture. It is also claimed the government could threaten the applicant’s family and ability to subsist.
It is submitted the only way to avoid the persecution is for the applicant to repress any expression of political opinion or criticism of the current regime.
It is submitted that the applicant cannot seek help from the authorities as they are the people responsible for the persecution. It is further submitted the applicant cannot relocate within Vietnam because the agents of persecution have power and reach across the entire country. It is submitted the applicant has previously sought to reside in [Country] and now Australia to escape the risk of persecution.
Delegate’s decision
The delegate refused to grant the applicants protection visas and set out the reasons for that in a Decision Record dated 26 June 2020.
Application for review
The applicants lodged their application for review with this Tribunal on 10 July 2020. The Tribunal also received copies of a range of documents which had been provided to the Department. Other documents supplied to the Tribunal include a letter dated 22 July 2020 from [Mr A], President of [Organisation 1] and [Organisation 2]. This letter states the applicant had regularly attended the Vietnamese community events for the past 10 years. It also refers to the applicant expressing strong political views against the Communist government of Vietnam. It states that if these views had been expressed in Vietnam they would put him and his family in danger.
The applicants’ representative has also provided written submissions supporting the applicants’ claims. The submissions and attachments are extensive, and include submissions made when the appeal came before the Tribunal as previously constituted. Further written submissions were made to this Tribunal when the matter was remitted to the Tribunal from the Federal Circuit Court. I have taken all the submissions and the relevant attachments into account in reaching my decision in this case. The attachments I refer to in particular include:
·Identity cards or membership cards showing the applicant is a member of [Organisation 1];
·A letter of support from [Mr B], from [Organisation 3];
·A number of postings made on the account ‘[User name]’ with English translations. The postings include photographs and commentary critical of police and regarding human rights issues in Vietnam;
·Posters and photographs associated with the anniversary of the Vietnam Armed Forces Day;
·A letter dated 16 June 2024 from [Dr C], President of [Organisation 4].
Summary of oral evidence given at hearings
Hearing held on 26 June 2024
The applicant began his sworn oral evidence by confirming his biographical details and stating that his place of birth, [District], is part of Ho Chi Minh City. He confirmed he holds citizenship for Vietnam only. He told me he renewed his Vietnamese passport which is now valid until 2029. He had no problem renewing the passport through the Vietnamese consulate in Perth. He confirmed he continues to live with his wife, and with his two Perth‑born daughters.
The applicant confirmed he first arrived in Australia on a student visa in 2009. He has remained in Australia continuously since then, except for a return trip to Vietnam in August 2012. He told me just before then, his wife miscarried and his wife was ‘in a bad mood’ so they travelled back to Vietnam for his wife’s comfort and to spend time in his wife’s home town of [Town] and in Ho Chi Minh City. Nothing eventful happened during this visit. They remained home and did not go out. They cleared the normal immigration control on return to Vietnam.
He told me he is currently employed as [an occupation 1] doing [a job task]. His wife works as [an occupation 2] and also works in [work sector]. He confirmed he travelled to [Country] from 2003 to 2008, however apart from that, he has not travelled elsewhere other than to Australia.
When I asked him to clarify what he meant by claiming that he had performed military service and had been in the ‘Local Militia’, he explained this is the local armed service which was mandatory for all men in Vietnam. He said it was the force that supports the main military and said he could work and study during the weekdays and he would perform training and security exercises on weekends. He said he was required to be enlisted for three years, however he completed the first year full-time then arranged with the local commander to reduce his service. He told me he did not know if this abbreviated service fell within the relevant rules, however when he spoke to the commander, he was able to pay a fee to reduce the length of service.
Upon asking him to explain in his own words why he fears returning to Vietnam, he told me that after living overseas for a time, he understood the Vietnam situation and he participated in activities run by Vietnamese. In particular, he said he participated in the 30 April events that commemorate the collapse of the Vietnamese Republic. He added he also raised funds for the Republic of Vietnam veterans and has supported Vietnamese activities overseas.
When I asked whether he has suffered any harm in Vietnam, he told me he has not because he has not returned to Vietnam since his activities, including his postings on the internet.
When I asked him to provide more detail on the 30 April commemoration activities, the applicant told me they held the event on 28 April this year because that day fell on a Sunday. It was held in [Suburb] and his role was to prepare tables, chairs and finger food. A few hundred people attended. It was publicised within the community network and the community leaders and veterans would post the event on the official website and [Social media] for [Organisation 4]. When I asked if he holds an official role or position, he showed me a membership card which states Member of [Organisation 1]. The card also refers to [related Organisation]. He told me the purpose of these groups is to support those who served in the Republic of Vietnam.
When I asked about what his parents did in Vietnam, he told me they served under the previous regime in the Republic of Vietnam. His father served in the [branch of government 1] in a lower [position] from [Year] to [Year], and he was also [an occupation 3]. His mother served as a [Position] in the [branch of government 2] from [Year] to [Year], in the applicant’s words, ‘Until we lost the country.’
Upon asking why he thinks he will be targeted for harm now or in the reasonably foreseeable future for reason of his parents’ involvement in the Vietnam War almost 50 years ago, the applicant said the main reason he fears returning is because of his activities in Australia. When I put country of origin information (COI)[1] to the applicant reporting on a low level of discrimination in Vietnam against persons whose relatives were involved in the Vietnam War, the applicant submitted the discrimination continues and most of the people who were discriminated against have left the country and those who weren’t harmed remained. When I referred to the COI distinguishing between the conduct of people in small communities as compared to the conduct of those in larger communities, the applicant said there is a proverb in Vietnam which says the King’s regulations cannot overrule the local rules. He then added that there is a household registration system operating in Vietnam.
[1] Paragraphs 3.108 and 3.109 DFAT Report
Upon asking whether the applicant had suffered any harm in the past due to his parents being in the Vietnam War, he said there was a restriction on the studies he could take. He said he was not permitted to study law or journalism or train to be a police officer, or work in the public service. He referred to a ‘Three generation rule’ which operated down from the person who served in the Vietnam War. He said this rule would apply to him, to his children, and to his grandchildren.
At this point I decided to adjourn the hearing for a short break. In doing so I asked the interpreter, who was providing interpreting services via an MS Teams connection, where he was physically located. He told me he was at the time located in Vietnam.
Upon the resumption of the hearing, I put it to the applicant that it was my impression that he had become more active in Australia and I asked him to comment. He told me after he arrived in Australia he has not returned to Vietnam and has therefore not faced harm. He added he fears his calls and postings have been monitored. He then told me when he was in Vietnam ‘I was a bird in a cage’. He said he did not have a full understanding of the politics in Vietnam, or the different perspectives. In Australia he had the opportunity to broaden his view.
When I asked him to detail what comments he made online, and how far it has been distributed, he said he shared his views on the [Social media] account and it was accessible by everyone. He said he shared information that was not available in Vietnam and put his personal views forward. He referred to the annexure to the submissions and said this contains examples of his posts. He said he made direct comments on the communist regime and compared that regime to his experience in Australia. He said when he lived in Vietnam he was unaware of the illusion of the communist regime. He said they talk of a ‘paradise society’ but they encourage the bad and the selfish and cruelty and untruthfulness. He said whenever there is communism there is hell. He said the example is the 100,000 people who were sent for re-education after the communist regime took power, and the millions who left.
At this point in the hearing the MS Teams transmission appeared to freeze thereby temporarily preventing further interpreting services. While the transmission/connection was being restored, the applicant’s representative made submissions on the location of the interpreter. In particular, the representative submitted that the applicant was concerned that there was a risk that the connection could be intercepted and possibly monitored by the Vietnamese authorities. It was also submitted that the arrangements also made it difficult to monitor the proper destruction of the interpreter’s notes.

Upon the re-establishment of the connection with the interpreter I discussed the applicant’s concerns with the interpreter’s location and decided to avoid risk of interception or surveillance the hearing would be adjourned until another day when the interpreting services could be provided either in the hearing room, or at least by an interpreter in Australia.
Hearing held 10 July 2024
At the resumed hearing upon inviting further submissions in relation to the interpreting issue at the first hearing from the applicant and his representative, the applicant told me he required an interpreter he can trust. I reminded the applicant that I adjourned the first hearing to err on the side of safety and to avoid a risk of interception or surveillance of the hearing proceeding. I also put it to the applicant there appeared to be no credible evidence to suggest the interpreting session from the first hearing had been intercepted, or was under the surveillance of the Vietnamese authorities or anyone else. The applicant’s representative submitted he did not have an issue with the standard of the interpreting but merely the location of the interpreter given the nature of the claims and evidence. He also referred to the security of the destruction of interpreter’s notes.
The applicant resumed his oral evidence by saying that he had applied for his passport before he applied for protection. He submitted this would have been before his name was flagged by the authorities. I put to him there appeared to be no credible evidence to suggest his Application for a protection visa was communicated or otherwise disclosed to the Vietnamese consulate, or to the Vietnamese authorities more generally.
I put to the applicant that the evidence before me suggested he was claiming to be more politically active in Australia than what he was either in Vietnam or even for the years he spent in [Country]. The applicant responded that when he was in [Country], [Social media] was not as popular and the internet was not developed as it is now. He said he participated in church activities, however there were not the opportunities to communicate as there are with social media now.
I put it to the applicant that I am required to assess whether his conduct in Australia was otherwise than for the purpose of strengthening his claims to be a refugee.
The applicant told me he made [Social media] posts on his account in the public mode and he cannot therefore control who has access. He confirmed he posted under the name [User name]. When I asked what he thinks he would achieve by publishing information about the defects in the Vietnamese system, he said he had participated in activities in Australia which would be regarded as anti-government and had spoken with the Chairman of the [Organisation]. The applicant said he hoped to ‘maintain the fire’ so people in Vietnam can have the knowledge and ‘from a little fire maybe there will be a big fire’, and what they post might lead to changing things in time. He told me he wants to help Vietnamese people to open their mind because the authorities censor things. He said most people in Vietnam are not aware of what is going on in their country. If they are informed then they can choose the regime they want. He added that he does not want to impose his views on the people of Vietnam.
The applicant told me he had met and spoken with the Chairman of the [Organisation] on many occasions. He referred to documents (advertising posters) submitted and which promote events aimed at raising awareness.
When I asked whether he has had any response to his [Social media] postings from the Vietnamese authorities, for example, warnings or threats, he told me he is not aware of any adverse consequences to anyone who has read his postings. He added he is not aware of any response from the Vietnamese authorities and they have a system in place to monitor and they focus on ‘famous guys’ and they can follow up on others with less profile later.
I asked the applicant for detail on his claim in his statutory declaration where he asserts the internet police interfered with his father’s [Social media] account by locking it twice. He explained that he shared his views on the imprisonment of people associated with the former regime in Vietnam with his father. He said his father received a warning and was blocked and he needed to change his [Social media] account. He then told me he had telephone conversations about similar matters with his father and the line was ‘choppy’ and then disconnected. He said his father had later been told he should not discuss these things. When I pressed the applicant on the question of whether his father had ever received a formal notice from the internet police in Vietnam, he told me his father is a senior in his [Decade] and does not know much about computers. He then referred to entities like Red Moon and AK47 who the applicant said promote and report to the Vietnamese authorities.
I asked the applicant if he has any evidence that the internet police, known as Force 47, reacted to posts he had sent to his father. The applicant said this is what his father told him; in particular, his father said once he linked onto something which was not communist‑friendly, his [Social media] account was locked.
In relation to his claim in his statutory declaration declared on 18 June 2024, where the applicant claims his telephone call with his father was intercepted, the applicant told me at the hearing that during a phone call the authorities intercepted and warned his father. When I asked for detail about this, the applicant said he could not recall the exact time but recalled it was maybe in 2021. He said he could not hear anything but his father told him later that someone intercepted and told his father he should not discuss such topics. When I asked why he thinks the authorities chose to only warn his father and not him, the applicant speculated that the authorities would be able to arrest his father but the applicant was in Australia and could not be arrested. When I asked whether he has had other calls with his father subsequent to the call in 2021 which he claimed was intercepted, the applicant said he became worried for his father, so since then he does not discuss sensitive topics or he thinks of a ‘clever way to communicate’. When I asked for an example of this, he said when speaking of corruption in Vietnam he would say if someone in authorities commits an offence the sentence is lenient, but for the layman the sentence will be severe. The applicant confirmed that since 2021 his father has had no more contact from the Vietnamese authorities and also does not visit or link to sensitive sites.
I asked the applicant whether his wife and children had separate and different claims to his own. He said they are his dependants and rely on him so they do not have separate claims.
When I asked whether he considered applying for non-refoulement while in [Country], he repeated while he was there the internet was not well developed or as pervasive as it is now and it was still safe for him to return to Vietnam.
When I referred the applicant to the finding in the delegate’s decision where the delegate found the applicant claimed he did not participate in anti-Vietnamese government protests in Vietnam, the applicant submitted that protests are just one of the activities that can communicate anti-government sentiment. He said he has engaged wholeheartedly in other activities which makes it unsafe for him to return.
When I asked what he would wish to be able to do if he returned to Vietnam, he said he wished the regime would be free like in Australia and he wishes for freedom of speech and human rights and a choice of parties.
When I pointed out he was permitted to leave Vietnam in 2009, and again in 2012, and I might conclude from this he was not a person of adverse interest to the authorities, he responded saying he had not expressed his opinion on sensitive issues much before these years.
He told me if he returned to Vietnam he could not live a ‘real life’ because he could not express his opinions to identify the inequalities and wrongdoings and he cannot speak out. He added that if the government had not flagged him, he might be able to make a living, but there is also a risk that he could be prevented from working. The applicant said he could not specify who in particular would carry out the persecution against him, however there is a system, including the local police, undercover police, and the last step is making a person disappear.
I referred the applicant to the reason for the Federal Circuit Court’s remittal of the matter to the Tribunal and invited him to comment on the reason why he might change his conduct if he returned to Vietnam. He replied by saying his mother’s and father’s background of being supporters of the former regime is one thing which combined with his activities in Australia makes him feel scared. He said when he was living in Vietnam, he was scared to comment. Since coming to Australia, he has met people with the same ideology.
He told me there is no other reason for fearing harm if he returns to Vietnam. In concluding his evidence, the applicant told me he completed university education and specialised in [specialisation subject]. When I asked how he explains completing a university degree in [subject] when he asserts he faced discrimination due to his parents’ support of the previous regime, he said he was born in [Year] and the war had ended in 1975. He said after the war people associated with the former regime faced restrictions on what they could study, however he was ‘a little bit lucky.’
The applicant’s representative made the following submissions:
1)The website which links to the [Social media] page containing the applicant’s postings is [URL];
2)The applicant concedes that if his claim was based only on the discrimination faced by people related to families who supported the old regime, then based on the DFAT COI, that might not be sufficient to find a real chance of persecution;
3)In the DFAT COI, at folio 3.109, the last sentence states the situation may be different for a person who has political opinions that favour South Vietnamese or pro‑American identity;
4)In the DFAT COI, at paragraph 3.108, reference is made to the yellow and red flag, the applicant’s ID cards, and all the events that are promoted and he is associated with have the yellow and red flag;
5)The combination of his family background and his activities in Australia give rise to a real chance of persecution;
6)The DFAT COI, at paragraphs 3.75 and 3.61, states that DFAT found it difficult to make an assessment of the risk because of controls at the local level, however it also found a moderate risk of official discrimination towards online activists;
7)The DFAT COI, at paragraph 3.63, reports that even low-level offenders are sometimes subject to arrest, fines and prison sentences;
8)In relation to s 5J(6) of the Act which deals with disregarding conduct in Australia engaged in only for the purpose of strengthening a person’s refugee claims, it is submitted the applicant is a man with a history of anti-regime connections. He has seen the treatment of his parents, and in particular he has seen the first‑hand effects on his mother who was detained. There is a generational trauma and this motivated his anti‑government activities when he came to Australia. It is submitted his conduct was not to bolster his protection claims. He experienced harm in Vietnam, then went to [Country], and later to Australia, and this influenced his conduct;
9)He had not been active when he left Vietnam in 2009, or in 2012, however what is available to the Vietnamese authorities now gives rise to a real risk of harm;
10)In relation to the telephone intercept issue, paragraphs 3.61 and 3.62 of the DFAT COI refers to Force 47. As to evidence to support the ‘freezing’ of his father’s account was due to authorities intercepting, it was submitted the sequence of events leading to the freezing supports the conclusion.
Assessment of claims
Based on the evidence before me, I am satisfied the applicants are Vietnamese citizens and that Vietnam is the receiving country for the purposes of assessing their claims.
In assessing the applicant’s claims, I have considered all the evidence before me individually and cumulatively. I have also considered such things as the consistency of the evidence, the level of detail and the plausibility, and I have considered all this in the context of the COI available to me, in particular the COI from DFAT.[2]
[2] DFAT Country Information Report – Vietnam, 11 January 2022
In relation to the COI, in addition to the COI I was referred to in submissions by the applicant’s representative, and COI cited in the delegate’s decision, I note and accept the following in particular:
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement
Online activists and social media users
3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs, and claim there is trolling online by a Government organisation known as ‘Force 47’.
3.62 … Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
People whose relatives were involved in the Vietnam War
3.108 Some asylum seekers claim that their relatives (often a grandparent) were involved in the Vietnam War in support of South Vietnam and that they face continuing discrimination as a result. In-country sources told DFAT that some subtle discrimination may exist, for example in educational opportunities, but others told DFAT this was previously the case but is no longer true.
Judiciary
5.7 Corruption is common in the courts. Judges often demand bribes from lawyers. Wages are low and appointments are short, which reduces independence for fear of having to reapply for jobs
5.9 The judiciary is subordinate to the CPV; there is no separation of powers. Judges at all levels are members of the CPV and are screened by the CPV before their appointment.
The applicant has consistently claimed he fears he will be targeted for serious harm of a kind contemplated in s 5J(5) of the Act for reason of his parents’ activities in support of the former South Vietnamese government prior to 1975, and for his political activities in Australia since his arrival in 2009, but in particular after 2012. Having regard to all the evidence before me, I am satisfied there is a real chance that the combination of these two factors, that is, his parents’ support for the former regime, coupled with the applicant’s activities with the named organisations in Australia, gives rise to a real chance that he will be targeted for harm for reason of his political opinion. Based on the evidence before me, I find the treatment of his parents, and in particular the mistreatment of his mother through her arrest, formed the background to his opposition to the current regime. I accept that as soon as it was possible and practicable to leave Vietnam, he travelled to [Country] and this provided him with the opportunity to compare the system in Vietnam with the system in the freer democratic country. I accept his explanation that after finishing his work in [Country] in 2008 he returned to Vietnam and that he did not suffer harm then as he had not been outspoken, nor had his views been published to any significant extent on the comparatively infant internet at the time. Based on my assessment of all the evidence before me, I find the applicant’s actual and perceived anti-government political opinion is the essential and significant reason for the real chance of serious harm that he faces. I am also satisfied, based on the COI before me, that the harm faced by the applicant is systematic and discriminatory.
I accept the applicant was dissatisfied with Vietnam and remained there until the following year when he left Vietnam in 2009 to live in Australia. I accept his claim that he perceives and values the view that Australia is a ‘nice country who upholds freedom and democracy values’. I also accept his sister lives in Perth and she encouraged him to study in Australia and to experience the Australian lifestyle and culture.
I proceed on the basis that the applicant’s mother was incarcerated and tortured by the Communist government for nearly two years because she worked for the old regime. I accept this created fear and anxiety in the applicant and a fear of being persecuted by the government for his political opinion.
I accept the COI reports that family members of those who supported the former regime faced a range of discriminatory restrictions, including restrictions in the course they could study, and restrictions in the employment they could take. However, I find the applicant was able to overcome these restrictions, by good fortune or by something else, and he completed a degree in [specialisation subject].
Having examined the documentary evidence in the form of posts made in [Social media], and having sighted the documentary evidence of the applicant’s activities with the Vietnamese associations he is a member of and which have been cited above, and in particular having observed the applicant and what he has told me in two hearings, I formed the view that he is genuine in his strong distaste and in his opposition to the communist regime in Vietnam. While I am unable to be absolutely confident that his postings, or his past conversations with his father have been intercepted by the Vietnamese authorities as he claims, I am unable exclude the real chance that they have been, especially having regard to the COI which I have cited above. I also accept the proposition that if he faces a real chance of serious harm of a kind contemplated in s 5J(5) of the Act, then the agents of the persecution in his case is the State and he is not able to seek protection from the police, or to relocate within his country to avoid such persecution as the government has power throughout the entire country of Vietnam. I am satisfied the real risk of harm faced by the applicant relates to all areas of Vietnam and that there is not effective protection measures on which the applicant may rely. I also accept that he is not expected to live discreetly by not expressing his political opinion in the future in the event that he was not harmed for his past political activities. It appears to me that in all the circumstances, if the applicant were to live discreetly and not express his political opinions, such conduct would occur for no other reason than a fear of harm.

On the question of whether the applicant engaged in the conduct in Australia, that is, activities with the relevant Vietnamese associations, and his [Social media] postings, otherwise than for the purposes of strengthening his claim to be a refugee, I am persuaded by all the evidence, and I accept the submissions made by the applicant’s representative that his conduct was not for such a purpose but due to views held genuinely by the applicant and influenced by his observations of his parents’ experiences and mistreatment in his country. Having regard to all the evidence, I accept the COI is consistent with the applicant’s claim that he fears there is a real chance that he may be kidnapped, arrested or tortured. I also accept that his family could be targeted for discrimination or harm as claimed.
I have considered the evidence before me that indicates the applicant has not suffered any serious physical harm while living in Vietnam. While the absence of past harm might suggest there is not a real chance of future harm, it is clearly not determinative on this question, and for all the relevant reasons in this decision, I conclude that there is real chance of harm contemplated by s 5J(5) of the Act now or in the reasonably foreseeable future in Vietnam if the applicant returns there.
I have considered the issue of the interpreter and his location during the first hearing and before I adjourned that. While I accept there is no guarantee that the hearing was intercepted and tapped by the Vietnamese authorities, I am not able to absolutely dismiss the possibility. In any event, as I have found I am satisfied the totality of the evidence provides substantial grounds for believing there is a real chance of the applicant facing persecution in his country, and as I find Australia therefore owes the applicant protection obligations in accordance with s 36(2)(a) of the Act, I do not consider the question of interpreting further in these circumstances.
Conclusions
Based on all the evidence before me, I am satisfied that the applicant has no right to enter and reside in, whether temporarily or permanently, any country apart from Vietnam and find he is therefore not precluded from protection for reason of s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is satisfied that the Applicant’s wife and two children, that is the second-, third-, and fourth-names applicants, are members of the same family unit as the applicant for the purposes of s 36(2)(b)(i). In this regard, I am satisfied they meet s 5(1) and reg 1.12(4), accordingly. As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Tony Caravella
Member

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

[2024] AATA 4156

29 July 2024

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