2315193 (Refugee)

2315193 (Refugee) [2024] AATA 2270 (15 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 2315193
2315196
2315173

COUNTRY OF REFERENCE: Vietnam
MEMBER:Wayne Pennell
DATE:15 March 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first applicant satisfies section 36(2)(a) of the Migration Act; and
(ii)that the second applicant satisfies section 36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as the first applicant.

Statement made on 15 March 2024 at 3:17pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – imputed political opinion – particular social group – failed asylum seeker – bisexual woman – resisting police attacks on church – physical assault – criminal conviction in Australia – fear of detention – double jeopardy – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 46, 48, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicants, who are citizens of Vietnam, applied for protection visas. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Vietnam, there was a real risk they would suffer significant harm, and their application was refused on the basis that they were not refugees as defined by the Act[1] and therefore they were not persons in respect of whom Australia has protection obligations.[2]
[1]Migration Act 1958 (Cth), s 5H.
[2]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicants then filed an application (‘review application’) with the Tribunal to review the delegate’s decision. A subsequent review hearing was undertaken by the Tribunal (differently constituted) on 29 June 2022, and on that occasion the Tribunal affirmed the decision to refuse the applicants protection visas.
The applicant subsequently applied to the Federal Circuit and Family Court of Australia (‘the Court’) for a judicial review of the Tribunal’s decision. [In] August 2023, the Court made orders, granting relief to the applicant and remitting the matter to the Tribunal for reconsideration (‘the remittal’).
At a subsequent time, the Tribunal wrote to the applicants advising them that it had considered all the material before it relating to the remittal of their review application but was unable to make a favourable decision on that information alone. They were invited to attend an in‑person hearing.
Throughout the review remittal process the applicants were separately represented, and through the exchange of correspondence between the Tribunal and their representatives, they each accepted the Tribunal’s invitation to give oral evidence and present arguments at a hearing. The hearings were undertaken with the assistance of an interpreter in both the English and Vietnamese languages.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[3] and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[4] That is, the applicant 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.
[3]Migration Act 1958 (Cth), s 36.
[4]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[5]
[5]Migration Act1958 (Cth), s 36(2)(a).
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.[6] 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.[7]
[6]Migration Act1958 (Cth), s 5H(1)(a).
[7]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[8] 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 the Act, which are extracted in the attachment to this decision.[9]
[8]Migration Act 1958 (Cth), s 5J(1).
[9]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[10] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[11] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[12]
[10]Migration Act 1958 (Cth), s 36(2)(a).
[11]Migration Act 1958 (Cth), s 36(2)(aa).
[12]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[13]
[13]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[14]
[14]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANTS’ IDENTITY
The applicants claim to be citizens of Vietnam. The first applicant, [named], travelled to Australia with his daughter [named] (‘the second applicant’). The first applicant identified himself as [name], and he was born in Ha Tinh province, Vietnam. Previously, he has provided personal identifiers to the Department in the form of a photograph, fingerprints and his signature. A subsequent check with the Five Country Conference by the Department resulted in no match to his personal details and there were no aliases recorded for the applicant. During the review hearing, he was able to engage in a conversation with the Vietnamese-speaking interpreter and spoke with ease about his family circumstances in Vietnam and his home area in that country.
The second applicant, [named], travelled to Australia with the first applicant. She was only aged about [age] upon her arrival. In respect to her identity, she has provided a good quality scanned copy of her birth certificate with a NAATI-accredited English translation. The Department arranged for the original of that document to be forensically examined by a document examiner, and there is no evidence to suggest that her birth certificate is not a genuinely issued and obtained document.
Therefore, the information available to the Tribunal supports the applicants’ claimed identities, and the Tribunal is satisfied (and so finds) that there is a familial relationship between the first and second applicants and they are from the same geographical location within Vietnam.
Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[15]
[15]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[16] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[16]Migration Act 1958 (Cth), s 499.
SECTION 438 CERTIFICATE
The Tribunal has been provided with the Department’s file in relation to this matter and the Department has placed restrictions on a document contained within that file and issued a certificate pursuant to section 438 of the Act.[17]
[17]Certificate issued 24 October 2019.
The purpose for and the basis of the certificate being issued was that the disclosure of a nominated document would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law, and the disclosure of that information could or would likely prejudice the effectiveness of those methods.
The certificate was signed and clearly relays to the parties the stated public interest reasons on the certificate. Prior to the hearing commencing for each of the applicants, a copy of the section 438 certificate was provided to their representatives.
The Tribunal is satisfied that the claim for public interest immunity is insufficient, and as such, the certificate is not valid. The documents to which the certificate relates are the examination of identity documents provided to the Department by the applicants, and the Department’s conclusions were that those documents are or could be genuine.
When assessing the applicants’ application and the evidence which had been provided, the Department accepted that the applicants’ identity documents were valid and that the applicants were who they claim to be. In the Tribunal’s view, the information covered by the certificate is irrelevant as to any determination as to whether the applicants are entitled to protection.
APPLICANTS’ APPLICATION
Background
To put the applicants’ case into perspective, the first applicant is the father of the second applicant. [In] October 2012, both applicants arrived by boat at Australia’s offshore territory, Ashmore Reef. At that time, both applicants were considered by the Department as unauthorised maritime arrivals (‘UMA’). The first applicant was subsequently interviewed by the Department in what is considered to be an ‘arrival interview’.[18]
[18]Arrival interviewed undertaken with the first applicant on 5 December 2012.
With the assistance of an interpreter, the first applicant explained during the arrival interview that he was a Vietnamese citizen and he identified as belonging to the Catholic faith. On the way to Australia he had lost his national identity card, and he disclosed that he had paid a significant amount of money to a people smuggler to come to Australia. He came to Australia to seek protection because the Vietnamese authorities were persecuting the Catholics in Vietnam.
In a later application, the first applicant expanded on that information to make the claims that in 2012, the police and the authorities began to monitor Catholics to stop them from attending church. They (the police and the authorities) threatened the Catholic worshippers with imprisonment if they kept attending church. He explained that in July 2012, he was asked by a priest, [Father A], to act as a security guard to prevent the police from entering his parents’ church which was the Catholic Church at [District 1], Nghe An.
The first applicant sometimes attended this church when visiting his parents. On this particular day, there was a significantly large number of what he described as ‘worshippers’ at the church when the police and army personnel carrying guns and batons arrived. When the authorities attempted to enter the church, he tried to stop them and in the process of doing that he was struck by a baton. He retaliated by hitting the police back. He later stepped aside and the officers entered and began beating the worshippers with their batons. Many people were arrested and taken to jail. Some people were hospitalised at with bad injuries. The police smashed religious statues and tried to destroy the church. He said that after this incident, he went back to his house and hid for around six weeks at a neighbour’s house, only returning to see his family at night. He claimed that although he was careful, the police learnt his name and his identity, and he thinks someone told the police this information. The police went to his house on a number of occasions looking for him and they told his wife that they would beat him if they located him. He fled to south Vietnam with his daughter (the second applicant) and he claimed that she was a daddy’s girl and would not let him go without her.
Almost a year after the applicants arrived in Australia, they applied for permanent protection visas (Class XA) (‘2013 application’) and relied on those claims just explained.[19] Shortly afterwards,[20] they were advised that a bar applied under section 46 of the Act and their application was deemed invalid (‘section 46 bar’). They subsequently applied for Ministerial Intervention to lift the section 46 bar[21] and were each granted a bridging visa E.[22]
[19]On 17 September 2013.
[20]On 8 November 2013
[21]On 28 October 2014.
[22]On 29 October 2014.
The applicants were later invited[23] by the Department to apply for temporary protection visas (Subclass 785) and on 3 November 2015 their application was lodged with the Department. That application underwent an assessment by the Department and ultimately a decision was made to refuse their application.[24] The matter was then referred to the Immigration Assessment Authority (‘IAA’) for a review.[25] The determination of the IAA was to affirm the Department decision to refuse the applicants’ application because they did not satisfy the requirements for protection in Australia.[26]
[23]On 13 July 2015.
[24]Decision made to refuse the application on 19 August 2016.
[25]Referred on 24 August 2016.
[26]Immigration Assessment Authority’s decision made on 14 December 2016.
The next step undertaken by the applicants was to seek a judicial review of the IAA’s decision in the Federal Circuit Court (as it was then known) (‘the FCC’). Their judicial review application was filed with the Court [in] January 2017. Subsequently, [in] October 2017, the FCC dismissed their application. The applicant’s then commenced an appeal of the FCC’s decision to the Federal Court, however that appeal was also unsuccessful.[27]
[27]Appeal to the Federal Court finalised [in] May 2018.
Subsequently, on 6 August 2018, the Full Court of the Federal Court delivered judgment in the matter of DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (‘DBB16’). The determinations of the Full Court were that any person who arrived in Australia via the Territory of Ashmore and Cartier Islands between 23 January 2002 and 1 June 2013, and did not subsequently enter Australia at an excised offshore place, was not a UMA. The effect of the Full Court’s judgment was that the applicant is not a UMA, and therefore not a fast‑track applicant, and the delegate’s decision to refuse his application was not a fast‑track decision.[28] Instead, it was a reviewable decision and able to be reviewed by the Tribunal.[29]
[28]Migration Act 1958 (Cth), s 5(1).
[29]Migration Act 1958 (Cth), s 411.
The Department later wrote to the applicants[30] advising them that because they were affected by the Full Court’s judgment in DBB16, the Department had reviewed their initial 2013 application and reached a conclusion that it was a valid application. They were also told that because of some legislative changes made to the Regulations, their 2013 application was going to be treated as an application for a temporary protection visa (Subclass 785).
[30]On 6 March 2020.
In regard to that application, the applicants later undertook a further interview with the delegate. After assessing their application and the contents of the interview with the applicants, the delegate arrived at a position whereby the applicants failed to satisfy the delegate that they were persons to whom Australia owed protection obligations as provided within the Act and their application was refused.[31]
[31]On 12 August 2020.
Both applicants then applied to the Tribunal to review the delegate’s decision.[32] Subsequently, they were invited to participate in a review hearing at the Tribunal which took place over two days in March 2022. They were represented during that process and they maintained the claims which had earlier been made in their application. On 29 June 2022, the Tribunal made a decision to affirm the delegate’s decision to refuse the applicants protection visas.
[32]On 20 August 2020.

The applicant then applied to the Court for a judicial review of the Tribunal’s decision. An issue raised by the applicants in the judicial review was what they described as the Tribunal failing to give proper, genuine and realistic consideration to a request during the review hearing for the Tribunal to obtain evidence from [Father A], who was a citizen and resident of Vietnam. The applicants’ argument was that he was a vital and important witness who was in a position to confirm and corroborate the claims they made. [Father A’s] subsequent evidence to the Tribunal is discussed in greater detail later in these Reasons.
When the Court considered the judicial review, the Court concluded that:[33]
… the Tribunal fell into jurisdictional error in failing to [fully consider] the request to obtain evidence from [Father A] such that it [acted] in a legally unreasonable way. This is so, [considering] importance of [Father A’s] oral evidence, the [reason for not contacting] [Father A] was [inadequate].[34]
[33]Judgment delivered [in] August 2023.
[34][Source deleted.]
Consequently, the FCFCA quashed the Tribunal’s decision made on 29 June 2022 and remitted the matter to the Tribunal for determination according to law.
Upon remittal to the Tribunal, each applicant was represented by different representatives, and although the initial facts of their individual cases were interwoven with each other, the primary reasons for their well-founded fear of returning to Vietnam differed. With those features in mind, each applicant’s case was heard separately, although the decision and Reasons relating to their application is a joint one.
FIRST APPLICANT’S CLAIMS AND EVIDENCE
An obvious point identified by the Tribunal is that throughout the many occasions that the first applicant has been called upon to explain his claims why he fled Vietnam, there has been consistency across the versions he has provided on those occasions. When the matter was remitted back to the Tribunal by the Court and a review hearing conducted, the first applicant’s version of the events surrounding why he seeks a protection visa remained consistent with his earlier explanations.
The first applicant explained to the Tribunal that he was the youngest of [number] children in his family and he grew up in the village of [Village 1] which is located within the [named] district in the Ha Tinh province of Vietnam. He claimed that his wife and [number] of his [children] still live at that village. Both his parents were devoted Catholics and as such he was born into a strong Catholic family. When he was about a month old, his parents had him christened in the local Catholic Church. From about the age of six, he started accompanying his parents to church for services and mass, as well as other special occasions such as Easter and Christmas. When he was aged [age], he took Holy Communion.
He described to the Tribunal that he has very limited education. He started school when he was about six years old, and he finished his education when he was in [grade], which he thought was when he was about [age] years of age. His parents were [farmers] and they farmed a [field] near his village. The farm was a family affair and his siblings also helped out at the farm. When he left school, he also worked at the family farm to help his parents.
He went on to explain to the Tribunal that he met his wife, they married and they later rented a farm from the government co-operative in their village. His wife and [his other children] still live in that village.
The first applicant then told the Tribunal that sometime around 2010, his parents moved away from his home village and relocated to [District 1] in Nghe An province. This village was about [distance] kilometres away and it took him about [time] to ride his motorcycle over to visit his parents. He usually made that journey to visit them every month and it was not unusual for him to stay a few days with his parents. Since arriving in Australia, his parents have passed away, as has his [specified family members]. He commented that he was the only surviving member of his family.
The first applicant explained to the Tribunal that when his parents relocated, they still followed their Catholic faith and regularly attended church services, although the church at the village was not one which had been registered with the local authorities. On the occasions that he visited his parents, he accompanied them to Catholic services and mass carried out in the unregistered church. He identified that the services and mass at that church were officiated by [Father A]. It was during his visits to his parents that got to meet [Father A] and over time they became friends.
He went on to say that he recalls that his father told him about the police visiting the unregistered church a few times, and the police usually monitored the worshippers attending the church, however there were some occasions when the police made attempts to stop the locals worshippers from attending the church and the worshippers were threatened by the authorities that they would be arrested and taken into custody if they kept attending the church. At a point during his evidence, the Tribunal noticed that the first applicant referred to the church as a ‘church’, and on other occasions he referred to it as a ‘chapel’. The Tribunal understands and accepts that he is talking about the same religious venue, being the unregistered Catholic Church in [District 1].
The first applicant went on to explain that after the services were finished in the church, he would talk with [Father A]. It was during those conversations that he was also told by [Father A] about the Vietnamese authorities trying to prevent the services being carried out and that worshippers had been prevented from entering the church to attend services.
The first applicant explained that in his view, he did not consider that those worshippers were doing anything wrong. All they were trying to achieve was to attend the church to pray and lead their lives normally. Having been a Catholic his whole life, he did not think this was a serious problem.
The first applicant went on to further explain that as time went by, things began to get worse for the Catholic worshippers, especially from 2011 and more particularly in 2012. There was a point where he was approached by [Father A] who asked him to volunteer to prevent the police and the authorities from entering the church and disrupting the services. He described this role as him acting as a type of security officer and he was happy to do that because he thought that his role was to prevent the authorities from entering, and he did not anticipate that things would escalate to a point where he would get hurt.
The first applicant explained that in 2011, he joined the anti-communist group known as the [Group 1]. This group was led by [Father A] with the assistance of another Catholic priest, [Father B]. He claimed that he was still an underground member of that group, but he is aware that the Vietnamese authorities have shut down [Father A’s] websites, and he can only access his [social media] page and his old messages via YouTube.
When discussing the events that unfolded on [a day in] July 2012, he said that it had been arranged with him by [Father A] that he be part of the security for the church service on that day. He told the Tribunal that the church was not a registered Catholic Church, and this explained why the Vietnamese authorities were taking an interest in the church. He said that he was aware of previous incidents when the police and authorities had arrived at the church during Sunday services and disrupted mass.
He claimed that on [the day in] July 2012, the worshippers were at the church praying and listening to [Father A] and he was standing outside the front doors when numerous police vans and vehicles showed up. He described that there were ‘so many of them’, and they were aided by the military soldiers who also arrived to assist the police.
He described that the police and soldiers exited their vehicles and tried to enter the church. He noticed that they were armed with firearms and batons. He said that he and other volunteers who acted as security guards tried to stop the police and the army from entering the church, but they threatened him and struck him with a baton, so he had no choice but to step aside. He also said that he retaliated and struck back at the police and the army. He said that he only hit them because he was defending himself and he did not think that he and the other worshippers were doing anything wrong and there was no reason why the police should be there. He said that when he and the others retaliated, this seemed to make the authorities angrier and they started to attack the first applicant and the others. They started beating Catholic worshippers with their batons.
He went on to say that some worshippers were arrested and placed into the police vans. He saw many being arrested and taken away from the church. He later learnt that some worshippers were hospitalised because of the injuries they received from being beaten by the authorities. He also described that the authorities had smashed all the religious statues and tried to destroy the church.
He said that the entire event was scary and he spoke to [Father A] who warned him to get away from the area. He then travelled back to his own village and his house. He stayed overnight, but from then on he stayed at a friend’s house which was located not far away from his family home.
He said that he was very careful with his movements, and he hid at his friend’s house for about one and a half months. He only visited his wife and family at night because he did not want to be arrested. He was aware that the police had visited and searched his family home looking for him. He went on to say that the police also visited his parents’ house looking for him, and there were numerous occasions when the police looked for him at home. The police told his wife that if he was caught, they would also beat him. This made him very scared of what might happen to him if the police apprehended him.
The applicant said that he had a well-founded fear that nowhere in Vietnam was safe for him because of his involvement in the incident at the church and that he had volunteered as a security guard at the church, he was therefore associated with [Father A], the church was an unregistered church, and somehow the authorities found out his name and where he lived.
The first applicant explained that he took his daughter to [City 1] where they lived, and he involved himself in cultivating [a drug] and was arrested and convicted of the offence and sentenced to a term of imprisonment. The Tribunal is aware that at that time, his daughter (the second applicant) was still a minor and she was taken into the care of the child protective services in [State 1]. She was later relocated to Brisbane where, fortunately for her, she was cared for in a foster care arrangement by her school teacher. This issue is revisited later in these Reasons.
The applicant told the Tribunal that he held a well-founded fear of returning to Vietnam, and his fear related to him being arrested and seriously harmed by the authorities and the police because of his involvement in the [July] 2012 incident. He said that because of that incident and his involvement with the unregistered church, he is considered to have a real or at the very least an imputed political opinion, and because of that, he feared that he would be seriously harmed or mistreated. A further complicating issue is the continued close association of him and his wife with [Father A].
He also claimed that if he was forced to return to Vietnam as a failed asylum seeker, he would be seriously harmed and/or mistreated on account of his membership of a particular social group, that is, being a failed asylum seeker who has spent the past decade in Australia. He claimed that the Vietnamese authorities would see him as even more of a target because of the length of time he has spent away from Vietnam and this would only create a situation of further endangerment for him and his family.
During the review hearing, the applicant was taken through his evidence and challenged on various points, and when asked to clarify his evidence the Tribunal found that, in general, his evidence was relatively consistent with the previous statements he had made to the Tribunal. Although the Tribunal was able to identify that there were inconsistencies between his oral testimony and what he had earlier said in his statements about the number of worshippers, and the injuries received by some people at the church that day, the Tribunal accepts that with the passage of well over a decade, it is acceptable that his memory would not be as sharp and focused as it was when he originally made his first statement.
He confirmed that his trip to see his parents which coincided with the incident at the church was planned by him so that he could involve himself with the dispute between [Father A] and the worshippers with the authorities over the unregistered church. He said that he had discussed this with [Father A] on the previous occasion that he had visited his parents. He said that he did not expect so many police and soldiers to turn up, and on previous occasions when the authorities came to the church during services there would mainly be about four to five local police officers.
Prior to the review hearing and through his representatives, the first applicant provided a detailed statutory declaration outlining a number of issues in his past, including his family, his upbringing, his religious faith and the circumstances surrounding why he left Vietnam. When carefully assessing the evidence contained within that statutory declaration, and weighing this evidence against his oral testimony at the hearing, as well as the contents of an earlier statutory declaration and a post-arrival interview with the Department, the Tribunal is satisfied that, overall, his evidence has remained constant over time. Notably, there were some slight variations observed in his evidence as observed by the Tribunal, however in the Tribunal’s view, given the passage of time over the past almost 12 years, those variations within his evidence are to be expected.
[Father A]
The core issue relating to the first applicant’s protection claims are the circumstances surrounding an event which he claims took place [July] 2012 at an unregistered church at [District 1]. He claims that the catalyst for his departure from Vietnam was that incident, and but for that event occurring he would not have left Vietnam. In support of his claims, the first applicant provided two statements from [Father A]. The first statement was dated 23 July 2020 (‘[Father A’s] first statement’) and the second statement was dated 29 August 2023 (‘[Father A’s] second statement’).
That original copy of both statements are in Vietnamese, however they have been converted into the English language by a qualified and recognised translation service. The Tribunal is satisfied, and so accepts, that both the English and Vietnamese copies are authentic, and that the English versions are a true reflection of the Vietnamese versions.
[Father A’s] first statement dated 23 July 2020 as translated into the English language is:
My name is [Father A], responsible pastor for the [Parish 1], [Village 2], [Locality 1], Province Nghe An. Viet Nam. From 2010 to 2013, I served [an area in] Nghe An region which includes the [District 1] area. [District 1] area has more than 200 worshippers both local and transient workers. Every time I conducted a Mass with worshippers, the government always created some problems. On the [specified day in] July/2012, the government mobilised a task force of more than 1000 police and security personnel to intimidate, to vandalise furniture, equipment and statues/pictures in the chapel, they beat me and the worshippers when we celebrated the Mass. Many people suffered severe injuries. After that, the government summoned and intimidated many people who were present at the [District 1] area on that date. Even people who visited the chapel, the beating victims, people who came to worship the Mary in subsequent days were all watched and intimidated.
From March 2013 to [year], I served in the [Parish 2], [Village 3], [District 2], province Nghe An. [Then] I was appointed to the [Parish 1], [Village 2], [Locality 1], province Nghe An.
During my time of service in [District 1], [the first applicant] regularly visited and helped me. On the [day in] July/2012, when I and the worshippers were repressed, [the first applicant] strongly protected us. He was beaten and since then watched. I have advised him to run away to avoid being arrested by the communist police. He escaped to some countries. Now he is living in Australia. If he returns to Vietnam, he will be arrested by communist police and put in jail.
[Father A’s] second statement dated 29 August 2023 as translated into the English language is:
I am [Father A], priest of [Parish 1], [Village 2], [Locality 1] Nghe An Province, Vietnam. From 2010 to 2013, I served in [an area in] Nghe An, within which is the [District 1] mission. [District 1] has over 200 worshippers, both locals and temporary residents. Every time I go to celebrate Mass with my worshippers, we were harassed by the government. On [the day in] July 2012, the government mobilised a force of more than a thousand police and security guards to cause trouble, they damaged tables, chairs, utensils, statues in the chapel and beat me and my fellow worshippers when we came to celebrate Mass. Many people were seriously injured. After that, the authorities issued summons and threatened to intimidate many people present at [District 1] mission that day. Those who visited the chapel, visited the victims, and paid respects to Our Lady in the following days were monitored and threatened. From March 2013 to [year], I served at [Parish 2], [Village 3], [District 2], Nghe An province. [Then], I accepted the assignment at [Parish 1], [Village 2], [Locality 1], Nghe An province.
While serving at [District 1], many police officers disguised themselves as worshippers to infiltrate the Mass, I asked some people to do the protection work for the liturgy, [the first applicant] was one of the guardians. On [the day in] July 2012, when my worshippers and I were being oppressed, [the first applicant] strongly protected us. He was beaten and has since been followed by the police. I told him to hide so he wouldn't be caught by the communist police. He fled to several countries. Currently he is in Australia. If [the first applicant] returns to Vietnam, he will be arrested and imprisoned by the communist police.
Since 2012 until now, I have been constantly monitored and restricted in my work by the police and made it difficult for me to do my missionary work. I am banned from leaving the country and prohibited to celebrate Mass at many churches outside the [named] Diocese, I have left my email and contact details in the content of the letter, I am ready to testify and appear in court by means of communication such as telephone, or other forms of international connected video call.
The evidence of [Father A] was a central and significant ingredient in testing the credibility of the first applicant’s evidence and his claims. During the review hearing, the Tribunal was afforded the opportunity to telephone [Father A] and cross-examine him as to the contents displayed in the letters he purportedly wrote. Because of the significance of [Father A’s] evidence, there was an initial concern for the Tribunal as to whether there was any qualification in accepting that he was an authentic parish priest as he had claimed.
Because he was appearing at the review hearing by telephone from Vietnam, it was not possible for the Tribunal to undertake a physical assessment of any mannerism he may display when being cross-examined, and all that was available to the Tribunal were his responses to the Tribunal’s questions relayed to him through the assistance of the independent translation of an interpreter. An added concern for the Tribunal was the absence of any document, certificate or other material which confirmed [Father A’s] qualifications that he had indeed studied theology and had been ordained as a priest by that Catholic Church.

To test [Father A’s] authenticity, the Tribunal devised a series of general knowledge questions from the Bible and Catholic teachings which the Tribunal anticipated that any ordained Catholic priest practising the Catholic faith would be expected to know, and as such, he would be able to give an accurate response.
When [Father A] appeared by telephone at the review hearing, he responded to a number of questions about his qualifications in regard to his role with the Catholic Church. He said that he trained to be a priest at a seminary in [Village 4], which is located within the province of Nghe An, and he was ordained in [year]. When he was asked those religious‑based questions devised to verify his authenticity, the Tribunal found that he was able to respond to and answer to the questions appropriately and accurately. Therefore, the Tribunal is satisfied of [Father A’s] qualifications that he is a Catholic priest, and the Tribunal accepts that he was at the material time, in July 2012, the Catholic priest for the village of [District 1].
When discussing his relationship with the first applicant, [Father A] was aware that he lived elsewhere and he travelled to [District 1] to visit his parents. He confirmed that the first applicant and his parents regularly attended the church. When asked if he could specifically remember if the first applicant was present at the church on the day of the incident [in] July 2012, [Father A] told the Tribunal that he recalled that when he arrived at the church, a group of what he described as ‘young men’ pulled him aside to protect him from the police and the authorities. His oral testimony at the hearing was that although he could not specifically recall exactly if he spoke to the first applicant, it was possible that the first applicant was amongst those young men he spoke to. He said that those young men were assisting him, and he recalled that at some point during the incident at the church, his advice to them was to run away and hide from the police and the authorities.
The Tribunal accepts and is satisfied that on that occasion there were many people at the church, and understandably the worshippers, including [Father A], would have experienced a high degree of tension and anxiety given the presence of the significant number of police and military personnel who arrived at the church. [Father A] described that a government mobilised task force of more than 1,000 police and security personnel arrived at the church, which he said was designed to intimidate the worshippers and himself, and to vandalise and damage the equipment, furnishings and other artefacts such as statues and pictures.
He also described that there were 200 Catholic worshippers belonging to the church in [District 1], and although he did not specifically describe the number of worshippers who were present, the Tribunal accepts that there would have been many worshippers in attendance that day. Although [Father A] could not definitively say that he spoke to the first applicant at the church on that day, the Tribunal is satisfied that the evidence of both [Father A] and the first applicant was consistent as to the facts of what occurred at the church, and it is accepted by the Tribunal that when consideration is applied to that corroboration, any benefit of doubt should go in favour of the first applicant.
The Tribunal is also mindful that the testimony of a witness and the accuracy of that evidence plays a very important role in arriving at a determination in the decision-making process, and external factors cannot and should not be ignored when assessing the veracity of the evidence. The Tribunal is satisfied, and accepts, that in this case, those external factors consist of the anxiety and stress that [Father A], the first applicant and the other worshippers experienced that day when faced with a significant show of force by the government authorities. Added to that is the passage of almost 12 years since the event took place. When weighing those factors against [Father A’s] evidence and that of the first applicant, the Tribunal accepts that notwithstanding some discrepancies between what they each said, the Tribunal is satisfied that the overall evidence shows that they were both present at the church that day, and that the first applicant did interact with and speak to [Father A].
In respect to the evidence of both [Father A] and the first applicant about the church incident [in] July 2012, a number of independent references can be located within publicly available country information about this incident. In an article published by the Independent Catholic News,[35] it was reported that mass protests occurred after the Vietnamese government ‘cracked down’ on the Catholic Church in [District 1]. Catholic dioceses across Vietnam responded and tens of thousands of Catholics in [a specified] Diocese took to the streets to protest about what was described as recent local government attacks on the [District 1] community and the persecution of worshippers because of their religious faith. The article also described the mobilisation by the government of a large group which consisted of police, army, militiamen and others described as thugs who physically attacked [Father A] and the worshippers. It also described that the church was desecrated and the statue of the Virgin Mary was smashed. The article also described [Father A] being assaulted [after] the incident [in] July 2012 at the [District 1] church. It described that he was attacked [at another location] and [received injuries].
[35][Source deleted.].
The Tribunal accepts [Father A’s] evidence about the incident between the worshippers and the authorities at the [District 1] church [in] July 2012, and the Tribunal is satisfied that the first applicant was present at the church on that day.
[First applicant’s wife]
As already discussed in these Reasons, when the first applicant left Vietnam and travelled to Australia with the second applicant, his wife and their [other children] remained in Vietnam. He told the Tribunal that over the time that he has been in Australia, he has remained married to his wife and they are in regular telephone communication with each other.
Provided for consideration of the Tribunal were two statements purportedly made by the first applicant’s wife. She was not called as a witness at the review hearing. Her first statement is dated 16 January 2017, and the second and more recent statement is dated 27 September 2023. There are a number of similarities between both statements about the incident at the [District 1] church [in] July 2012, and although she was not present at the time, the Tribunal accepts that the first applicant told her about what happened when he arrived home. She specifically described that the first applicant had been ‘beaten’ during that incident at the [District 1] church.
After the events at [District 1], she and the first applicant intended to flee Vietnam with his family, but at the time they did not have the money for all of them to go,. The decision was made for the first applicant and the second applicant to leave.
She described that after the [July] 2012 incident at the [District 1] Catholic Church, the secret police visited their house looking for the first applicant. She initially described in her first statement that the police visited about four to five times, and this followed with a monthly visit by the police who were still searching for the first applicant. She went on to describe in her more recent statement that the police were still looking for him and had visited the family home on [a day in] September 2023.
When she asked the police why they came looking for him so many times, she was told that it related to his involvement in the incident at the [District 1] church and he had fought against the public officials. They were at the family home to arrest him, and they undertook a search of the house for him. Although the police asked her where he was, she did not disclose that the first applicant was in Australia.
Because the first applicant’s wife was not called as a witness, and the only evidence provided by her were two single-page statements, the Tribunal has given very careful consideration to the evidence contained within those documents and is satisfied that, overall, the contents of each document are consistent with each other, although understandably the more recent statement contains some more recent and updated information.
Having regard to firstly the independent country information discussed earlier in these Reasons about the protests which eventuated after the [July] 2012 incident, and secondly to the evidence of [Father A], the Tribunal accepts that the evidence contained within her statements is corroborative and probative of the claims the first applicant relies upon.
COUNTRY INFORMATION
Catholic religion – unregistered faith groups
Country information available to the Tribunal provides that the communist Vietnamese government recognises a wide range of religious groups. Whilst reports may vary, the Vietnamese government recognises between 38 and 43 religious organisations and one dharma practice, which are affiliated with 15 distinct religious traditions.[36] Those religious organisations include Buddhism, Islam, Baha’i, Catholicism, Protestantism, Church of Jesus Christ, Hoa Hao Buddhism, Cao Dai, Buu Son Ky Huong, Tinh Do Cu Si Phat Hoi, Tu An Hieu Nghia, Phat Duong Nam Tong Minh Su Dao, Minh Ly Dao Tam Tong Mieu, Khmer Brahmanism, and Hieu Nghia Ta Lon Buddhism.[37] The Vietnamese government only recognises the state-run Buddhist Sangha of Vietnam, and Catholic groups, along with Protestants, Muslims, Baha’i and Buddhist groups, are allowed to provide religious education to adherents in their own facilities, and religious leaders noted increased enrolment in these education programs in recent years.[38]
[36]United States of America Department of State 2019 Report on International Religious Freedom: Vietnam, 10 June 2020, page 4.
[37]United States of America Department of State 2020 Report on International Religious Freedom: Vietnam, 12 May 2021, page 5.
[38]Report on Human Rights in Vietnam 2019-2020, Vietnam Human Rights Network, 14 May 2020, page 53, accessed 3 March 2024; United States of America Department of State 2020 Report on International Religious Freedom: Vietnam, 12 May 2021, page 23.
Notwithstanding that recognition of the various religious groups, in 2023, Vietnam was scored one out of four for religious freedom with it being reported that tight restrictions are placed on freedom of expression, religious freedom, and civil society activism.[39] In the same year (2023), it was ranked as the 25th most difficult place in the world to be a Christian.[40]
[39]Freedom House, Vietnam, accessed 3 March 2024.
[40]Open Doors, Vietnam, accessed 3 March 2024.
While Vietnam’s constitution officially provides for the freedom of religion, in practice there are a range of legislative measures imposed by the Vietnamese government which restricts citizens choosing to practise religion. Those restrictions include registration requirements, control boards, and surveillance.[41] All religious groups must register and seek approval from the government. According to a 2020 report by Human Rights Watch, prohibited religious activities are those deemed to be contrary to arbitrary notions of the ‘national interest’, ‘public order’, or ‘national unity’. Unrecognised religious groups face constant surveillance and harassment with some religious groups subjected to public criticism, forced renunciation of faith, detention, interrogation, torture, and imprisonment.[42] Laws continue to be applied unevenly, however, with some local government areas taking a more relaxed and tolerant approach than others.
[41]America, The National Catholic Review, Report from Vietnam – The struggle between government and religion, 29 February 2016, Reese T J and Glendon M A, accessed 4 March 2024.
[42]World Report 2020, Vietnam – Events of 2019, accessed 3 March 2024.
The first applicant claimed that the church at [District 1] was an unregistered church, and that claim was supported by [Father A]. Land continues to be a flashpoint for religious organisation and state relations. Provincial and local authorities exercise eminent domain over land belonging to individuals and religious organisations in the name of social and economic development projects.[43] Authorities continued many such projects that required the revocation of land rights and demolition of properties of religious organisations or individuals across the country. Authorities reportedly fail to intervene effectively in many land disputes that involve religious organisations or believers, and, in most of these cases, the religious organisations or believers were unsuccessful in retaining land use rights.[44] Such actions resulted in land disputes involving both registered and unregistered religious organisations.[45]
[43]United States of America Department of State 2020 Report on International Religious Freedom: Vietnam, 12 May 2021, page18.
[44]United States of America Department of State 2020 Report on International Religious Freedom: Vietnam, 12 May 2021, page 18 – 19.
[45]United States of America Department of State 2020 Report on International Religious Freedom: Vietnam, 12 May 2021, page 19.
The DFAT Country Information Report provides that Vietnam is officially an atheist state. Article 24 of the constitution nevertheless guarantees a right to freedom of belief and religion. In practice, religious groups are required to register with the government and the authorities place restrictions on the day-to-day activities of some believers. The Law on Belief and Religion came into effect on 1 January 2018. It established a role for the state in protecting religious freedoms and established legal personhood for religious groups. It requires such groups to register with the government, and religious activities, including routine worship, festivals or conferences, to be registered. Activities can be disallowed on national security or morality grounds. The following sections focus on the day-to-day experiences of religious groups since the law came into effect.[46]
[46]The DFAT Country Information Report, Vietnam, 11 January 2022, page 13, paragraphs 3.13 – 3.14.
The DFAT report went on to describe that there are key distinctions between registered and unregistered faith groups. After the Vietnam War and the establishment of the unified Socialist Republic, the state created official religious groups and, since then, further groups have become registered. Registered groups worship with limited or no government interference; and those that are not registered may be pressured by government to join a 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.[47]
[47]The DFAT Country Information Report, Vietnam, 11 January 2022, page 14, paragraph 3.15.
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.[48]
[48]The DFAT Country Information Report, Vietnam, 11 January 2022, page 14, paragraphs 3.17 to 3.18.
The DFAT report further provides that there are several high-profile examples of religious figures who have advocated for religious freedom and been imprisoned. There are f ewer such cases 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. DFAT assesses that adherents of officially recognised religious groups are generally able to practise their faith with minimal interference from national authorities, but the situation differs from place to place. Those in large cities are particularly free to practise. 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.[49]
[49]The DFAT Country Information Report, Vietnam, 11 January 2022, page 14, paragraphs 3.19 to 3.21.
The DFAT report outlined that while Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam consisting of the Nghe An, Ha Tinh and Quang Binh provinces. In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations.[50] Although most Catholics worship in churches as part of parishes, within some communities, particularly outside of cities, those worshippers are known to use the homes of believers.[51]
[50]The DFAT Country Information Report, Vietnam, 11 January 2022, page 14, paragraph 3.22.
[51]The DFAT Country Information Report, Vietnam, 11 January 2022, page 14, paragraph 3.24.
There have been Catholic political movements that attract negative attention from authorities, with a distinction being drawn between faith and politics, for example, Catholics who are involved in political, human rights or environmental movements and priests who are involved in those movements may be restricted from public ministry or given a faraway parish assignment.[52] This country information is relevant to the circumstances surrounding [Father A].
[52]The DFAT Country Information Report, Vietnam, 11 January 2022, page 15, paragraph 3.26.
DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholics who are perceived to challenge the authority or interests of the communist Vietnamese government 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.[53]
[53]The DFAT Country Information Report, Vietnam, 11 January 2022, page 15, paragraph 3.31.
In undergoing an assessment of the country information available to the Tribunal, consideration was given to whether it could be considered that the first applicant had an actual or imputed political opinion which was contrary to the views and policies expressed by the communist Vietnamese government.
In regard to a citizen’s political opinion in Vietnam, the DFAT report provides that Vietnam is a one-party state and opposition parties are effectively illegal. Threats to the legitimacy of the communist party of Vietnam are seen as threats to the state and are not tolerated.[54] Although there are reports that some advocacy and activism within Vietnam for broader human rights issues, such as democracy and individual freedoms, take place, most public protests are about practical local issues, such as environmental concerns, development and transport. Notwithstanding that, protests or activism about broader human rights issues, such as democracy, individual freedoms, environmental or land use protests and calls for democracy are sensitive topics and are considered much more sensitive by the authorities. Because of that sensitivity, activists in those areas have faced arrest.[55]
[54]The DFAT Country Information Report, Vietnam, 11 January 2022, page 18, paragraph 3.49.
[55]The DFAT Country Information Report, Vietnam, 11 January 2022, page 18, paragraph 3.50.

It was the first applicant’s submission that Catholics who are perceived to challenge the authority or interests of the communist Vietnamese government 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.
The Tribunal accepts that the country information available to the Tribunal provides that it would be difficult to make an overall assessment of the risks posed to activists as there are no clear patterns to determine who will be arrested and when. The possibility of a low-level activist possessing an actual political opinion such as the first applicant and the risk of him being arrested because of that political opinion cannot be discounted.[56]
[56]The DFAT Country Information Report, Vietnam, 11 January 2022, page 19, paragraph 3.57.
In arriving at that conclusion, the Tribunal is also satisfied that because of the second applicant’s relationship with the first applicant (his daughter), there is a distinct possibility that she would be perceived by the communist Vietnamese government as having an imputed political opinion. However, after considering her testimony, the Tribunal is satisfied that given the strong moralistic approach she has developed on a wide range of global political issues, including Vietnam, that perception about her political opinion would specifically fall within the ambit of her having an actual political opinion. It is also noted (and the Tribunal accepts) that she has provided evidence to the Tribunal to show that she has been politically active in the recent past in Australia.
Conditions for returnees

100. The country information contained within the DFAT Country Information Report on Vietnam provides a description with respect to the treatment of returnees to Vietnam. Articles 120 and 121 of Vietnam’s Penal Code prohibit the organising, coercing [or] instigating of illegal emigration for the purpose of opposing the government of Vietnam. The penalty prescribed for that offence is between three and 20 years’ prison for both organisers and individual persons who have left Vietnam to settle in another country for political reasons.
101. The DFAT report indicates that there were no reports of any cases where these provisions have been used against failed asylum seekers returning from Australia.[57] In contrast to that information in the DFAT report, it is further outlined that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in those operations. DFAT sources have described cases where people have been detained for multiple days or recalled for further questioning, although, at worst, would-be migrants who have employed the services of people smugglers only face an administrative fine.[58]
[57]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraph 5.29.
[58]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraph 5.30.
102. The DFAT report further describes that the Vietnamese authorities occasionally question returnees from Australia upon their arrival back in Vietnam. This interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part.[59]
[59]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraph 5.31.
103. Typically, failed asylum seekers face a range of difficulties upon return, including unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. Given that both applicants have been absent from Vietnam since 2012, the Tribunal accepts that this would be problematic for them if they were to return to Vietnam.[60]
[60]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraph 5.32.
104. The DFAT report provides that many returnees have high levels of debt from funding their travel out of Vietnam. This is certainly applicable to the first applicant as the Tribunal accepts his evidence that he borrowed a significant amount of money ($18,000) to fund their travel to Australia. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans.[61]
[61]The DFAT Country Information Report, Vietnam, 11 January 2022, page 33, paragraph 5.33.
105. When considering those difficulties as described in the country information as they apply to the applicants, the Tribunal accepts that there is a risk that because they have been absent from Vietnam for almost 12 years, there is a significant risk that they will be exposed to those identified difficulties because of the very nature of their return to that country.
106. Earlier in these Reasons, the Tribunal identified that since the applicants have been in Australia, the first applicant had been arrested in [State 1] and later convicted and sentenced to a term of imprisonment in 2018 for his involvement in the criminal enterprise of cultivating a dangerous drug, namely [named drug]. It was the first applicant’s submissions that because of that conviction and prison sentence, this exacerbates his risk of serious or significant harm were he to be returned to Vietnam. Article 6 of Vietnam's Penal Code provides that:
Vietnamese citizens who commit offenses outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code.

107. In submissions made by the first applicant’s representatives, the Tribunal’s attention was drawn to the country information relating to double jeopardy and it was suggested that this could apply to the first applicant because of his conviction in Australia. The DFAT report provides:
Double jeopardy would occur when a Vietnamese citizen is charged and convicted with a crime in another country, and then returns (or is returned) to Vietnam and is prosecuted for the same crime. Article 6 of the Penal Code gives broad extra-territorial jurisdiction for crimes, meaning that a crime under Vietnamese law that is committed outside of Vietnam may be punishable under Vietnamese law. In-country sources have told DFAT that the provisions may only apply theoretically. DFAT is not aware of cases of double jeopardy in practice.

108. When carefully considering this point, and weighing that against the country information, the Tribunal observes the following:
¨No evidence was presented to the Tribunal during this case to show that should the applicants return to Vietnam, the Vietnamese authorities would be aware that the first applicant had been convicted of a drug offence in Australia; or that there would be a reason why the Vietnamese authorities would be aware;
¨Article 6 of Vietnam’s Penal Code provides that it is at the discretion of the Vietnamese authorities to exercise prosecutorial action against the first applicant should he return; it does not provide that he would be prosecuted;
¨The country information contained within the DFAT report as shown above only discusses that although prosecution of the first applicant could theoretically occur, it would be a very rare example of the Vietnamese authorities making that decision because DFAT was not aware of any past cases of double jeopardy in Vietnam.

The Tribunal has very carefully considered the issue surrounding the possibility of the first applicant being further punished in Vietnam because of his drug conviction in Australia. Although the Tribunal accepts that the possibility of double jeopardy does exist for him, the chance of that occurring is so remote that the Tribunal places very little weight on it in so far as the determination of a decision in this matter.
SECOND APPLICANT’S CLAIMS AND EVIDENCE
The second applicant is the first applicant’s daughter. She was aged about [age] years old when she arrived in Australia with her father. She corroborated her father’s evidence in so far as how they left Vietnam and travelled to Australia.
What was established from the second applicant’s case was that after settling into her schooling in Brisbane, the first applicant made a decision to relocate to [State 1]. As already explained in these Reasons, at that time the second applicant was still a minor. The first applicant involved himself in criminal activity in [State 1] and found himself being convicted for cultivating [a drug] and he was imprisoned for [term].
Although the specifics of that incident which led to his imprisonment were not discussed within his evidence, the Tribunal is aware from what the second applicant said to the Tribunal that his incarceration had a dramatic impact upon her. She was a minor, she was in a foreign country and had relocated away from Brisbane where she was comfortable and being suitably educated. She had a support base in Brisbane, but no such support in [State 1]. Because her father was in custody and was no longer in a position to care for her, she was taken into the care of the [State 1] child protection agency. Fortunately for her, her former teacher from Queensland came to her aid and she relocated back to Queensland where her former teacher cared for her until she became an adult.
In regard to her evidence in chief, and her claims, the second applicant provided to the Tribunal a detailed statutory declaration in 2020. At that time she was still a minor, and the Tribunal notes that she was represented at that time by a lawyer who assisted her in completing her statutory declaration.

114. The second applicant’s claims are distinct and separate from the first applicant’s claims. In explaining her life in Vietnam, the second applicant said that her parents were both Catholics and she and her siblings were raised as Catholics. In the village where they lived, their house was quite close to the Catholic Church and the population of the village was quite dominant with Catholic people. Growing up, she learnt about being Catholic from her parents and the church. It was normal in her family to pray often, for example, the family would pray together every night for dinner. Her parents made sure that she went to church, and she went most days, as well as the special days of Lent, Easter or Christmas. She disclosed that she learnt from her mother that she had been baptised when she was a month old. From the evidence deposed to by the second applicant, the applicant accepts and is satisfied that she, along with the family unit, including the first applicant, were Catholics and they consistently practised their faith. When careful consideration is applied to that evidence, the Tribunal is satisfied that there is no evidence to suggest that the Catholic Church in her home village was anything other than a registered Catholic Church. She provided no evidence of the police or any other authorities visiting that church as was the case with the church at [District 1].
115. In regard to the events that led up to the applicants leaving Vietnam, the second applicant recalls that her father went away and returned and he had injuries to his face. She asked him what happened and was told that he had been helping the church at [District 1] where his parents lived. From what she remembers, the police came to their house looking for her father. It was not very long after that when she and her father left Vietnam illegally and travelled by boat through Indonesia to Australia.
116. She said that as she got older, she learnt more about what had happened. Her evidence about what she had learnt confirms what the first applicant said about his experiences at the [District 1] church [in] July 2012.
117. When discussing her life in Australia, she claimed that her Catholic religion was still very important to her and she regularly attended Sunday mass. At this point the Tribunal will pause discussions about her evidence and identify that much is made in her evidence of her devotion to religion as a Catholic, and it appears from her evidence that she and her family attended a Catholic Church in Vietnam. Notwithstanding they were practising Catholics who frequented the church, there is no evidence that she experienced any difficulties in Vietnam because of her religion, and nor is there any evidence that she suffered serious harm and was threatened or persecuted in any way because of her religion. The country information available with the DFAT report outlines that 6 per cent of the population of Vietnam is Catholic and there is a clear distinction between registered and unregistered churches. The Law on Belief and Religion came into effect in Vietnam on 1 January 2018 and this established a role for the state in protecting religious freedoms and established legal personhood for religious groups. It also requires such groups to register with the government, and religious activities, including routine worship, festivals or conferences, are to be registered.[62]
[62] The DFAT Country Information Report, Vietnam, 11 January 2022, page 13, paragraph 3.13.
118. The second applicant said that when she was about [age] years old, she was living in [City 1] with the first applicant. She remembers that the police came to their house and arrested the people who were there, including the first applicant. She is aware that his arrest related to the cultivation of [a drug]. She was taken to a Youth Training Centre. She thought that she was taken there because she did not have any legal guardians or family to stay with because her father had been arrested and was in custody. After about two weeks she went back to Brisbane and started living in between the homes of two of her teachers from her school. Eventually she lived full‑time with one of her teachers who cared for her.
119. Throughout the difficulties in her life, she has come to think of Australia as her home. She said that it is the only place that she really knows now, and it is where she feels she most belongs. She finished her education and graduated from Year 12. Initially she wanted to study [Subject 1] at university and received sufficient marks to do so, however was not able to because her bridging visa was removed from her when she turned 18. She said that since then, life has been difficult and stressful without a visa. Fortunately, she continued to live with her former teacher who has been her carer, and she has been a good friend and support for her.
120. The second applicant told the Tribunal that because she has effectively grown up in the democratic society of Australia, if she had to return to Vietnam this would cause her significant mental pain and suffering. Since her time from being a very young girl to now being a young adult woman, she has developed very strong views about social and political issues, and it is important to her that she can express those views and work towards what she considers is making the world a better place. She explained that when she was younger she attended some pro‑democracy rallies with her father, and since he was imprisoned, her conscience has led her to participate in a range of protests including on the issues of climate change, Black Lives Matter and, most recently, the protection of Palestinians. She knows that public expression of political views is not free in Vietnam and the thought of not being able to express what is important to her would make it really difficult for her in Vietnam. She explained that she would find it very hard to resist the urge to get politically involved even though she understands that it could be very dangerous and cause significant problems for her. To demonstrate that she had involved herself in social issues and protests in Australia about various causes, she provided photographs of her attending such events. The Tribunal is satisfied that she has played an active role in voicing support or a point of view to support those causes.
121. In discussing the current situation of her family in Vietnam, she said that her mother and [a sibling] live in Vietnam. They are not well off and her mother works on their farm and sells things in the market to make a living. She earns enough to survive but is not wealthy. [One sibling] is [age] years old and lives with [their] mother. [Detail deleted.] [One sibling] has said that the second applicant would suffer if she had to go back to Vietnam because things are very different to Australia, and even though they are [siblings], they have been apart for a long time and have really grown up in two different worlds. The second applicant understands that it is not common in Vietnam for women to have well-paid professional jobs, especially in the area that her family comes from, and she has learnt from her mother and [family] about women getting sexually harassed at work, which are not things that women usually speak up about. She said that even though at present she is unable to work or study in Australia because she has no visa, her goal is to study [Subject 1] and then work in that field, so she would be very concerned for her safety at work if she returned to Vietnam.
122. A further concern for the second applicant is that she feels a very strong disconnect from the culture, community and language of Vietnam. She has had limited and occasional phone contact with [one sibling], and minimal contact with her mother, both of whom are living in Vietnam. She told the Tribunal that because she has lived in Australia for so long, she feels a strong emotional and physical disconnection from her family in Vietnam, the language and her culture. She also said that the idea of living in Vietnam feels completely foreign to her, and that she feels safer within Australia due to the familiarity of the customs and laws.
123. The second applicant told the Tribunal that she identifies as bisexual. She claimed that she has known this for much of her life since she was a young child. She used to think that being bisexual was wrong, but because of the freedom in Australia she is now open and comfortable with her sexuality. She claimed that she would have to hide her sexuality if she returned to Vietnam, and if she was to be open about it, she would face extreme discrimination and ostracism from people in everyday life. She added that although she does not have plans at the moment to marry, it is her desire to eventually marry a same-sex partner. She claimed that in Vietnam, it is not legal to marry people of the same sex, meaning that long‑term relationships are always under a cloud if you can manage to sustain them at all amongst the discrimination.
124. The Tribunal is aware from the available country information in the DFAT report that Vietnamese culture emphasises traditional family values for single Vietnamese women to marry a man, but in some instances women, particularly those of higher education and means, may choose to remain single, as it is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.[63] In practice, women who are single come under what in‑country sources call ‘intense pressure’ to marry. One source described to DFAT being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In‑country sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.[64]
[63]The DFAT Country Information Report, Vietnam, 11 January 2022, page 23, paragraph 3.82.

[64]The DFAT Country Information Report, Vietnam, 11 January 2022, page 23, paragraph 3.83.
125. As already explained, the second applicant identifies as bisexual and claims to have a well‑founded fear that she will experience serious harm because she is a member of a particular social group if she was to return to Vietnam.
126. The DFAT report provides that LGBTI rights in Vietnam are mixed. Sex between adults of the same sex is legal and LGBTI civil society organisations are relatively free in their operation. However, despite this relative freedom from official interference, it is common within Vietnam for LGBTI persons to experience adverse social stigma and discrimination. In larger cities, this type of stigma and discrimination is less of a concern to what can be experienced in the rural and regional areas of Vietnam. Larger cities have LGBTI-friendly spaces such as cafes, shops and galleries which exist, and many LGBTI people use smart phone applications and directories to engage in physical and online communities. Many LGBTI people use social media, especially Facebook, to network and find communities. However, online hate speech against LGBTI people is common.[65]
[65]The DFAT Country Information Report, Vietnam, 11 January 2022, page 24, paragraph 3.94.
127. Unlike political rallies and protests, it is known that government-sanctioned Pride parades can generally go ahead without being registered as the communist Vietnamese government does not see LGBTI issues as a particularly sensitive topic. However, the DFAT report describes that LGBTI people do not have access to same-sex marriage or the right to adopt children. LGBTI people report discrimination as a part of their everyday lives in areas such as healthcare, education and employment, but especially in families. Men or women who are seen as presenting in a way not consistent with traditional gender roles, and especially trans people, face verbal and physical abuse. In-country sources told DFAT that wealthy gay men face the least discrimination but that most LGBTI people, regardless of their wealth and identity, still hide their LGBTI identity in order to avoid discrimination.[66]
[66]The DFAT Country Information Report, Vietnam, 11 January 2022, page 24, paragraphs 3.95 to 3.96.
128. Although street violence against the LGBTI community is uncommon, they are more likely to experience violence in the domestic setting. Many families believe that LGBTI identity can be ‘cured’, and there is strong pressure, with reports of LGBTI people being forced by their families to attend conversion therapy. Lesbians particularly face pressure from families and in-country sources have alerted DFAT that ‘corrective rape’ (the practice of a man raping a lesbian to ‘correct’ her sexual and gender identity) can occur, but this type of often-hidden crime makes it impossible to assess how commonly this occurs. Previously, the COVID-19 pandemic forced many LGBTI people to return to their families’ homes and they were afraid to go home because of the risk of violence or family pressure to marry into a heterosexual relationship. Aging LGBTI people who do not have children are at particular risk, given the traditional role that children play in caring for the aged in Vietnamese culture.[67]
[67]The DFAT Country Information Report, Vietnam, 11 January 2022, pages 24 to 25, paragraphs 3.97 and 3.99.
129. DFAT assesses that LGBTI people in Vietnam face a low risk of official discrimination but also are not protected by laws prohibiting discrimination and hate speech. LGBTI people face a moderate risk of societal discrimination, particularly within their families.[68]
[68]The DFAT Country Information Report, Vietnam, 11 January 2022, page 25, paragraph 3.101.
130. When carefully assessing the second applicant’s claim that because she is bisexual and belongs to a particular social group, she has a well-founded fear that she will suffer harm in Vietnam, the Tribunal accepts that the available country information provides that despite the law allowing sex between adults of the same sex, there is the overall traditional views expressed by family members and the urge to ‘cure’ a person of their homosexuality. For women, that cure could involve rape by a male.
131. In respect to the second applicant, there is no evidence before the Tribunal to show that she is at risk of harm from any member of her family because of her sexuality as a lesbian, however there is that overall view expressed within the credible and reliable country information in the DFAT report that LGBTI people in Vietnam face a low risk of official discrimination but also are not protected by laws prohibiting discrimination and hate speech. LGBTI people face a moderate risk of societal discrimination.
CONCLUSION AND REFUGEE FINDINGS
Real chance of serious harm
132. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well‑founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
133. Both applicants travelled from Vietnam to Australia in 2012, and at that time the second applicant was a relatively young child. She was at that time completely dependent upon her father for physical, emotional and psychological support. Sadly for her, he made the choice to involve himself in criminal activity which resulted in him being sentenced to a term of imprisonment. This resulted in the second applicant’s separation from him and she was for some time cared for in a foster care type of arrangement until she became an adult at age 18. Although there has been some disconnect between the applicants as a family unit, this was ultimately because of the first applicant’s imprisonment, after which he was taken into immigration detention. There has been communication and interaction between them, and the Tribunal accepts that the first applicant provides psychological support to the second applicant, and as such the Tribunal is satisfied (and so finds) that she is a member of the same family unit as the first applicant.
134. Invariably, considerable time can pass between when an original decision is made by a delegate and the matter being determined by the Tribunal. It is incumbent upon the Tribunal to hear and decide the review by way of a fresh hearing on the merits of the applicants’ application as at the date of the hearing. In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the delegate relied upon to reach the original decision.[69]
[69]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.
135. The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm; and whether they are persons in respect of whom Australia has protection obligations as defined in the Act.[70]
[70]Migration Act 1958 (Cth), s 36(2).
136. The mere fact that the applicants claim they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because they claim that they will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicants to satisfy the Tribunal that all the statutory elements are made out.
137. In conducting a review hearing, the Tribunal undertakes an ‘inquisitorial’ process and has the discretion to seek out evidence it requires in order to reach a determination. However, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[71] After all, the obligation is upon the applicants to present their case and to specify all the particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claims.
[71]ABT16 v Minister for Home Affairs [2019] FCA 836, [28].
138. The Tribunal does not have a responsibility or an obligation to specify or assist in specifying any particulars of the applicants’ claims, or to establish or assist in establishing their claims.[72] This is consistent with the established principle that proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.
[72]Migration Act 1958 (Cth), s 5AAA.
139. It is for the applicants to advance whatever evidence or argument they wish to advance in support of their contention that they have a well-founded fear of persecution if they were to return to Vietnam. The Tribunal must then decide whether those claims are made out[73] and the Tribunal is not required to uncritically accept any or all of the allegations made by the applicants.[74]
[73]Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14, [187]
[74]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
140. Inevitably, as with cases such as this, the Tribunal is required to undertake an assessment of the credibility of the applicants. Any assessment is an inherently difficult process and can be based on imperfect perceptions of truth.[75] When undertaking that assessment in this matter, the Tribunal has given significant regard to the determinations of the Courts[76] and notes further that it has been a well-established principle that any assessment of the reliability and credibility of evidence is not an exact science and should be undertaken carefully, thoughtfully, fairly and reasonably.[77] In that regard, the Courts have determined that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[78] A similar approach is taken in the Department’s Refugee Law Guidelines,[79] and in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection,[80] which provides a useful guide for this Tribunal in regard to the principle of the benefit of the doubt.
[75]Fox v Percy (2003) 214 CLR 118.
[76]Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[77]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, [23].
[78]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816, [25] citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
[79]Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[80]United Nations High Commissioner for Refugees Handbook, re-issued February 2019, page 44, paragraphs 203 – 204, accessed 5 February 2024.
141. The Tribunal takes this opportunity to provide an assessment in respect to what is considered the credibility of the applicants and the veracity of their evidence. The Tribunal is satisfied that during the review hearing and the evidence given by the first and second applicants, they displayed a straightforward, direct and forthright demeanour which leads to the Tribunal to be satisfied as to their credibility. The Tribunal also accepts the veracity of their evidence. The Tribunal also had the opportunity to undertake an assessment of the evidence provided by [Father A]. On this particular point, the Tribunal is satisfied that the evidence of [Father A] was beneficial in so far as the claims relating to what took place on [the day in] July 2012 and the first applicant’s involvement in the disruption at the church with the Vietnamese authorities. The Tribunal accepts his evidence as being credible and probative to the applicants’ case.
142. Turning to a well-founded fear, in determining that fear can be well-founded without any certainty, or even probability, that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 recognised the principle found by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca[81] that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[82]
[81]Immigration and Naturalization Service v Cardoza-Fonseca, 480 U.S. 421; 107 S. Ct. 1207; 94 L. Ed. 2d 434; 55 U.S.L.W. 4313, United States Supreme Court, 9 March 1987, available at: [accessed 31 October 2023].
[82]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.
That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one. One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[83]
[83]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.

143. A fear of persecution may be well-founded for the purposes of the Refugee Convention even though the persecution is unlikely to occur. A real chance of something happening equates to a risk that is more than remote, that is, being a risk that could not be described as being remote, far‑fetched or fanciful,[84] and the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[85]
[84]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429.
[85]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
144. When carefully considering the facts, circumstances and the evidence of the applicants’ case, and as already identified, the Tribunal was afforded the opportunity to monitor and assess their responses to the Tribunal’s analysis of the evidence, and to gauge the genuineness or the credit of the responses they provided during the review hearing. The Tribunal accepts they were both credible and reliable witnesses.
145. Further to this, having considered all the circumstances as they apply individually and cumulatively to the first applicant, including carefully assessing the available country information and analysing that information, the Tribunal finds that as a necessary and foreseeable consequence of the first applicant returning to Vietnam there is a real chance he will be persecuted for one or more of the reasons provided for in section 5J(1) of the Act. Therefore, the Tribunal finds that his fear of persecution is well-founded and he is a refugee within the meaning of section 5H of the Act.
146. Having considered all the circumstances as they apply individually and cumulatively to the second applicant, the Tribunal finds that should she return to Vietnam, in the reasonably foreseeable future, there is a real risk that she would suffer significant harm for reasons of her sexuality. Helpfully, the Courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well‑founded fear’ in the Refugee Convention definition.[86]
[86]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
147. NOTE: In respect to the second applicant, although the Tribunal has arrived at the conclusion that it has in respect to her claims, the Tribunal is of the view that even if it had not arrived at that conclusion, it would turn its mind to making representations and recommendations in regard to Ministerial Intervention relating to her.
DECISION
148. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first applicant satisfies section 36(2)(a) of the Migration Act; and
(ii)that the second applicant satisfies section 36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as the first applicant.

Wayne Pennell
Senior 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 2270

15 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction