2319880 (Refugee)

2319880 (Refugee) [2024] AATA 2373 (15 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Khanh Hoang
CASE NUMBER:  2319880
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nora Lamont
DATE:15 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 March 2024 at 10:39am
CATCHWORDS
REFUGEE – protection visa – Vietnam – sur place claims – whether to bolster claims for protection – member of Viet Tan – participation in protests in Australia – social media activities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
Somaghi v MILGEA (1991) 31 FCR 100
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 20 June 2017.
The applicant appeared before the Tribunal on 22 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], [office bearer] of Viet Tan Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant has two applications for review before the Tribunal file numbers 2017618 and 2319880, both are applications for SHEVs, but are two separate sets of visa applications due to the Ashmore Reef/CBW20 decision. In relation to 2017618, this application was lodged on 17 July 2020 and is the second application historically. This is the post-bar lift Ashmore decision. The Department refused to grant the visa on 27 November 2020, and the review application was lodged with the AAT on 8 December 2020. In relation to 2319880, this application was lodged on 20 June 2017 and is the first SHEV application historically. The Department initially made a decision on 25 June 2020 that the visa application was invalid due to the s91K bar. However, as a result of the decision in CBW20, the Department notified the applicant on 2 March 2023 that this application was in fact valid, and the Department went on to reconsider the application, ultimately deciding to refuse to grant the visa on 10 November 2023. The applicant then applied for review with the Tribunal on 6 December 2023.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant arrived in Australia [in] April 2013 without any identity documents. The Department requested evidence of identity from the applicant, and she provided the Department with a Vietnamese Tax Identification Number, a marriage certificate, a National Identity card, and a driving permit to establish her identity. The Department was satisfied of the applicant’s identity and based on the applicant’s oral and written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Vietnam and has assessed her claims against that country in relation to s36(20(a) and s36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Act.
There are no non-disclosure certificates on the applicant’s file.
The Tribunal had the following submissions before it:
·Letter from [Dr B] dated 30 January 2024.
·Statutory Declaration [the applicant] dated 17 September 2020.
·Still shots of CCTV footage from mothers’ home in Vietnam.
·Support letter from [Mr A] [officer bearer] Viet Tan Australia (undated).
·Support letter from [Mr C] Member of the Viet Tan.
·Photos on the Viet Tan website of the applicant.
·Still pictures taken from Vietnamese government website with pictures of ‘terrorists’ including the witness [Mr A].
·Photos of applicants [social media] posts.
·Photos of the applicant at Viet Tan events.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s original claims as presented with her application for a protection visa are summarised as follows:[1]
[1] AAT Folio SHEV Application Reference Number: [number]
- The applicant is of Kinh ethnicity and a Catholic.
- The applicant had a [Produce 1] business and she borrowed money from her neighbours and owed them over 300,000,000,00 Dong. When she was unable to pay the debt, the neighbours hired gangs to threaten the applicant.
- The Applicant fears that she could be killed by the gang's members. The Applicant also feared of being unjustly jailed and arrested by the Vietnamese government.
- The Applicant and her family were threatened, kidnapped, physically attacked, abused and harassed by the gangs.
- The reasons was that the Applicant borrowed money from the gang and could not make a repayment. The local government was colluded with the gangs and ignore the applicants complain on the attacks.
- The Applicant was afraid that she could be jailed, and her family would be harmed by the gangs if she reacts vigorously and report their harassment.
- The Applicant did report to the local authorities and police on several occasions. However, the Vietnamese authorities ignored the applicant's complaint. The applicant believed they are bribed by the gangs’ members.
- Due to the Applicant's level of education and low financial resources, and dreadful mental condition due to long period of being threatened, the Applicant is unable, and did not know of her right to seek any other assistance from any other authorities.
- The Applicant did not move to other parts of the country to seek refuge. The Applicant thought that the gangs would find her no matter where she was going to, and if they find her, they will definitely kill her as a failed escaper.
- The Applicant believes in this because it is a requirement in Vietnam for newcomers (at new local) to register a temporary pass with the new local government. Upon registration, the newcomers must produce copy of the old place family book registration. The new local authority would contact the old local authority to check the newcomer’s identity before their approval. This would reveal the applicant's location to the old local authority. The Applicant believes the old local authority is bribed by the gangs and would tell them her new location.
- The gang would find her, and she would be in danger. It is also impossible to live illegally at the new location, because the new landlord and neighbourhood are obliged to report to local authorities, or they would be in breach of the law. The Applicant believes her only option is to run away from the country.
- After the Applicant left the country and lived in Australia. The Applicant was introduced and started to take part in human rights activities by the Vietnamese Community in Australia. She began to form her political believes and understand that she is also a victim of human rights issues in Vietnam.
- The Applicant later joined Viet Tan and became one of their members. Viet Tan is a peaceful pro-democracy organisation but was deemed terrorist group by the Vietnamese Government.
- The Applicant often assists and participates in protests against the Vietnamese government. The Applicant also post comments and share posts on her social media together with her photos to condemn the Vietnamese government. These media posts are eventually viewed by the people in the Applicant’s hometown. This was later viewed by the gangs.
- The gangs reported every detail of the Applicant's human right activities to the Vietnamese authorities and circulated around the hometown. The applicant believes that the local authorities are bribed to report her involvements in Viet Tan as a prominent significant member who poses a national security threat to the Vietnamese government system. The Applicant believes that she has been regarded as a terrorist by being a member of Viet Tan. The Applicant's human rights activities are also reported to the Vietnamese government at all levels.
- The applicant fears that the Vietnamese government know she is anti-government, and they have access to her immigration records.
- She has been diagnosed with depression and anxiety and has insomnia.
Prior to the hearing the applicant’s representative submitted to the Tribunal that the applicant was no longer relying on her original claims of owing money as her brother has paid her debts so there is no longer an issue. The representative offered Sur Place claims.
Sur Place claims
The applicant’s Sur Place claims as submitted by her representative are as follows: [2]
·The applicant claims she is an official member of Viet Tan since June 2019. The applicant claims that she would be at risk of persecution due to her membership with Viet Tan.
·The applicant claims to be an active member of Viet Tan therefore, she is owing a well-founded fear of being persecuted for her membership.
·The applicant claims to be in close affiliation with Viet Tan leaders who are labelled ‘terrorist’ by the Vietnamese government. The applicant believes she would be deemed an ‘accomplice’ to terrorism and therefore be at risk of detainment, arrest, and imprisonment accordingly.
·The applicant has provided evidence of her continued participation in protests in Australia and [social media] activities which are considered sensitive materials to the Vietnamese government, and she would be charged by the Vietnamese authorities for circulating information against the state’s interest.
·The applicant had left Vietnam illegally, has been an active member of Viet Tan, and publicly made critical opinions against the Vietnamese government. The applicant fears she will be severely punished and imprisoned in Vietnam.
[2] Applicant’s submissions dated 15 December 2023.
Further Sur Place claims were provided via the applicant’s statutory declaration dated 8 December 2023 and include the following: [3]
·I use [social media] to publicly share my political opinions. I aim to raise awareness on the political brutality of Vietnam, demanding for the release of prisoner of conscience and expose the Vietnamese Communist Government wrong doings.
·One of my roles as a Viet Tan’s member is to share information, human rights, and propaganda activities for the online community through [social media].
·My personal [social media] account is named, [Name 1]. I am also an admin of [social media] page named ‘[Name 2]’ (Translated: [Name 2 in English]), an official page for Viet Tan in Australia Chapter. The page is used to publish information about the Vietnamese government’s violation of human rights, injustice treatment on their citizens. The original page had approximately 13,000 followers, however, it was attacked by hackers and no longer exist. I am one of the members responsible for building the new page, which currently has around 1000 followers.
·[Social media] bloggers who discuss political issues and criticise the Vietnamese Communist Party are often arrested, detained, and sentenced to many years in prison for their peaceful expression. I believe I would face similar and could be at greater risk due to being an administrator for Viet Tan Australia’s [social media] page.
·My photos have been published on Viet Tan’s [social media] page which has over 1.3 million followers globally. The official page is closely monitored by the Vietnamese government cyber agents; therefore, I am concerned that all my date and online activities are currently tracked by the Vietnamese government. If anyone is found to interact with Viet Tan’s [social media] including liking, commenting, or following would be questioned by the Vietnamese local authorities immediately. This is the Vietnamese governments attempt to control networking, recruiting, and circulating of information form Viet Tan members to Vietnamese people.
·I also have photos with Viet Tan leaders who are currently on the wanted list in Vietnam. The leader’s personal information is listed on the Vietnamese Police Ministry website. They are currently, [Mr D], [Mr A], [Mr E] and [Mr F]. These individuals’ political activities are monitored by the Vietnamese government as they are labelled terrorists with the intention to overthrow the communist government. I will be considered an accomplice and associate with overseas terrorists, therefore at the risk of the same cruel punishments.
Tribunal Hearing
[3] Statutory Declaration [the applicant] dated 8 December 2023.
The applicant said she only ever completed grade [level] at primary school and then she worked as a labourer for her neighbour selling [Produce 1]. She continued to sell [Produce 1] until she got married in 1999 when she was [age] years old. She has two children, one born in [year] and one born in [year]. Her mother looks after her children. Her father has passed away. She has no relationship with her husband. She has not spoken to her husband since 2014, although her children have a relationship with him.
The Tribunal asked her why she came to Australia, and she said because she owed some 300 million Dongs. When asked why she owed so much money she said that she bought [Produce 1] with it for her business. Her husband knew that she borrowed the money, but it was her business. Her brother who remains in Vietnam and is a [Occupation 1] paid the debt off, so it is no longer a claim.
She said she was raised a Catholic and never had any trouble with the authorities in Vietnam with her religion. She currently attends church in [Suburb 1], and she also lives in [Suburb 1]. She has worked for the past five years at a [business] in [Suburb 2].
The Tribunal asked her if there was one defining moment in Vietnam when she decided to leave. She said money collectors were harassing her and she reported it to the local police on many occasions, but she couldn’t stand it anymore. She met a lady and she said she helped her get to Australia. She arrived in Darwin in 2013.
Her involvement with the Viet Tan started in 2017. You don’t become a member right away, so she was considered a supporter. It wasn’t until 2019 when she became an official member. The Tribunal asked her what had attracted her to the Viet Tan, and she said that she liked their ideology and their fight for human rights in Vietnam. She said that she first heard about the Viet Tan when she was released from detention, and she was not allowed to work.
The Tribunal asked what the Viet Tan does, and she said that they organise activities once a month and a conference once a year and they also have rallies and demonstrations. She attended their Adelaide conference for three days. She said she also attends meetings once a month. She was not allowed to tell the Tribunal how she became a member as they are a secretive group, but she is the administrator for their [social media] page. She said she also attends rallies, sells rice noodles and raffle tickets to raise money.
Various country information sources note that the Vietnamese government monitors and targets overseas activists:
The government monitors and targets overseas activists. The Vietnamese government has been accused of monitoring and targeting overseas activists.[4]
These accusations include the use of a notorious hacking group, Ocean Lotus (also known as APT-C-OO or APT32), which has suspected links to the Vietnamese government, employed to target human rights defenders, political dissidents, NGOs and journalists both in Vietnam and abroad. [5]
The government has been reported to conduct surveillance, harassment, and imprisonment of activists, with an increase in the number of activists arrested and tried in recent years.[6]
In April 2023, Vietnamese police confirmed that missing Vietnamese blogger Duong Van Thai was in police custody. Duong Van Thai had fled to Thailand in 2018 fearing political persecution for his many posts and videos that criticised leaders within the Vietnamese Government. Thai was awaiting refugee status is Bangkok before going missing for over a week. [7]
In July 2023, the Vietnamese government acknowledged they had arrested and charged Thai with ‘creating propaganda against the state’. [8]
[4] 'Vietnamese activists targeted by notorious hacking group', Amnesty International, 24 February 2021, 20230626105953; 'Report on Human Rights in Vietnam 2022-2023', Vietnam Human Rights Network, 15 October 2023, p. 32, 20231122095434
[5]'Vietnamese activists targeted by notorious hacking group', Amnesty International, 24 February 2021, 20230626105953; 'How Vietnam-based hacking operation OceanLotus targets journalists', Committee to Protect Journalists (CPJ), New York, 1 February 2021, 20220729132251; 'How Vietnam-based hacking operation OceanLotus targets journalists', Committee to Protect Journalists (CPJ), New York, 1 February 2021, 20220729132251
[6] 'Vietnam: Activists’ Movements Blocked', Human Rights Watch (HRW), 17 February 2022, 20220221092610; 'Vietnam: Dozens of Rights Activists Detained, Tried', Human Rights Watch (HRW), 13 January 2022, 20220221092156; ‘DESPITE INTERNA TIONAL SCRUTINY, VIETNA M CONTINUES TO CONDUCT SURVEILLA NCE, HARASS AND JAIL ACTIVISTS’, CIVICUS Monitor, 25 March 2023, 20231214150231
[7] ‘Vietnamese police confirm missing blogger is in their custody’, Radio Free Asia, 17 April 2023, 20230509200131
[8] 'Detained Vietnamese blogger allowed to send letter to family', Radio Free Asia (RFA), 6 November 2023, 20231108121036

The Tribunal asked her what the ultimate goal of the Viet Tan was, and she said to dismantle the government. The applicant said that the police in Vietnam attended her mother’s house and showed her a picture of her [social media] page and told her that her daughter needed to take down the [social media] page. They snatched her mother’s phone and took the number of her phone from her contacts. They told her mother that she would be in trouble if she returns to Vietnam. They were watching what she was doing.
The witness [Mr A] flew over from South Australia to be at the hearing in support of the applicant. He is the [office bearer] of Viet Tan Australia and has been a member since 1989. He spoke of the work the applicant was doing with the Viet Tan and how the applicant has published articles, statuses and comments on websites and [social media] which puts her in harms way given the Vietnamese government considers the Viet Tan to be a terrorist organisation. If she was returned to Vietnam she would be stopped at the border and detained.
Mental Health
The applicant suffers from insomnia and major depression and has been consulting with a doctor since 2015. She is currently taking antidepressants and has received cognitive behavioural therapy with psychologists. She is also taking sleeping pills to assist her sleep. She was very teary at the hearing. The Tribunal has taken the applicant’s mental health status into account and considered that after so many years of being in a limbo migration space, it is reasonable to assume that she would have impacts on her wellbeing.
The Tribunal is aware that the Viet Tan has been labelled a terrorist organisation by the Vietnamese government.
·Members of the pro-democracy group Viet Tan have been sentenced to lengthy prison sentences and convicted of terrorist operations. In 2016, Vietnamese authorities declared the US based pro-democracy group The Vietnam Reform Revolutionary Party (or Viet Tan/Việt Tân) ‘a terrorist organisation and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished’. [9]
·Individuals – including Australian citizens – with links to Viet Tan, have been sentenced to lengthy prison sentences for engaging in terrorist activities and ‘convicted of working to “fund terrorist operations”’. [10]
·In July 2023, Australian citizen and Vietnamese pro-democracy activist, Mr Chau Van Kham was released from prison after having been detained in 2019, hours after arriving into Vietnam, and sentenced to 12 years hours for ‘terrorist activities’. [11]
·According to Amnesty International considered Mr Chau a prisoner of conscience, detained solely for his peaceful political beliefs. [12]
·Mr Chau was released after four years into his sentence on ‘humanitarian grounds “in a spirit of friendship” between Canberra and Hanoi, according to Australian Deputy Prime Minister Richard Marles. [13]
Viet Tan
HANOI (Reuters) - Vietnam has declared a U.S.-based activist group a terrorist organization and warned that any Vietnamese found to be involved with the group would be regarded as co-conspirators and punished.
The government said the California-based Viet Tan, or Vietnam Reform Party, had recruited and trained operatives to use weapons and explosives. Vietnam has long been sensitive to the activities of Viet Tan, calling the group "reactionaries" but the announcement carried on state television was the first time it had designated it a terrorist organization. Vietnam's police-run Ministry of Public Security said Viet Tan had trained members in militant activities, kidnaps and murders and arranged for operatives to sneak in to Vietnam to organize protests and instigate violence. The group in a statement said the government feared organized opposition and the police were "regurgitating baseless propaganda" to try to deter Vietnamese from "peaceful political advocacy."
"Let the people of Vietnam decide whether Viet Tan is a threat," it said. The U.S. State Department said Viet Tan was not listed as a terrorist entity under U.S. law. "We would refer you to the Vietnamese government for more information on its designation," said Katina Adams, a spokeswoman for the department's East Asia bureau. Viet Tan has long been an annoyance for the Communist Party that has ruled since the U.S.-backed South Vietnam government fell to northern forces in 1975, leading to an exodus of more than 1 million people, mostly to the United States. It was founded by exiled remnants of the deposed Saigon government in 1982 and states as its mission to "overcome dictatorship and build the foundation for a sustainable democracy". Despite steadily introducing more liberal social and economic reforms in recent years, the Communist Party has a zero-tolerance approach to criticism and has punished detractors harshly. Experts said the huge Vietnamese appetite for social media creates a challenge for the authorities to keep a lid on dissent, as seen this year during widespread protests over an environmental disaster in which demonstrators were mobilized largely via Facebook.[14]
[9] 'Vietnam declares US-based activist group is a terrorist organization', Reuters, 08 October 2016, CX6A26A6E10990; 'OSAC Country Security Report Vietnam', Overseas Security Advisory Council (OSAC), 12 July 2022, p. 3, 20220927150411 145 'OSAC Country Security Report V
[10] OSAC Country Security Report Vietnam', Overseas Security Advisory Council (OSAC), 12 July 2022, p. 3, 20220927150411
[11] 'RETIRED SYDNEY BAKER CHAU VAN KHAM FREED FROM VIETNAMESE PRISON, RETURNS TO AUSTRALIA', Amnesty International, 11 July 2023, 20230907161202; 'Activist says he’ll continue to struggle for democracy in Vietnam', Radio Free Asia (RFA), 30 July 2023, 20230731091639
[12] 'RETIRED SYDNEY BAKER CHAU VAN KHAM FREED FROM VIETNAMESE PRISON, RETURNS TO AUSTRALIA', Amnesty International, 11 July 2023, 20230907161202
[13] Activist says he’ll continue to struggle for democracy in Vietnam', Radio Free Asia (RFA), 30 July 2023, 20230731091639; 'Report on Human Rights in Vietnam 2022-2023', Vietnam Human Rights Netw ork, 15 October 2023, p. 31, 20231122095434
[14] VIETNAM DECLARES CALIFORNIA-BASED GROUP TERRORISTS VIETNAM DECLARES CALIFORNIA-BASED GROUP TERRORIST | REUTERS
DFAT reports that low level activists may be targeted and there is a moderate risk for those involved in political protests and rallies. [15]
[15] DFAT Country Information Report Vietnam 11 January 2022.
Political Opinion
3.49 Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated. Membership of the CPV can sometimes result in better access to social and economic opportunities, especially for senior positions in Government (including local government) or the judiciary. As Vietnam urbanises and the economy matures, more opportunities in the private sector have become available for non-CPV members.
3.50 Some advocacy and activism for broader human rights issues, such as democracy and individual freedoms, take place but most public protest is about practical local issues, such as environmental concerns, development and transport. The former is considered much more sensitive by the Government; activists in different contexts described below have faced arrest.
3.51 Street protests occur but much protest has now moved to online platforms. Many street protests are about single-issues and threats to livelihood and land rights (typically related to accusations about corruption in development). The most prominent recent example was widespread anti-China protests (related to fears that the Chinese Government would buy land under reformed rules) and against laws that required social media companies like Google and Facebook to store user data domestically.
3.52 The right to assembly is constitutionally protected but, in practice, that right is subject to national security provisions of the Penal Code that prohibit ‘establishing or joining an organisation that [is] against the People’s Government’ (article 109), ‘making, storing or spreading information … opposing the State’ (article 117) and ‘abusing democratic freedoms to infringe upon the interests of the state’ (article 331). These laws effectively outlaw protests that the Government finds sensitive. Official approval is required to protest, which is routinely denied for sensitive topics. Protests that are allowed are subject to close police monitoring.
3.53 Topics that are deemed to be sensitive can change or depend on local government priorities at the time. People with knowledge of the issue told DFAT that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.
3.54 Human rights, environmental or land-use protests and calls for democracy are sensitive. An NGO’s links to foreign governments may also intensify Government monitoring. COVID-19 ‘misinformation’ is particularly sensitive and can lead to arrests, as can online organising of in-person protests. Particular events, such as the National Congress (held every five years, most recently in January to February 2021) might see a crackdown on activists, including the arrest and trial of high-profile activists.
3.55 Activists might have difficulty obtaining legal representation. Lawyers who represent activist clients can face restrictions on their practice. People held on charges related to human rights may face bureaucratic difficulty accessing a lawyer (for example, the lawyer may be delayed with bureaucratic processes until after an investigation is complete or prevented from speaking to their client). DFAT understands this situation has improved in the last decade with more lawyers now being trained and willing to work with human rights activists.
3.56 Activists may be prevented from leaving their homes; staying away from home overnight requires any person to register with local police, which can be used to prevent movement. During high-profile events, such as a visit from a high-profile international figure or at an election, activists might be visited,
invited for tea or taken on tours of the city so that they miss meetings. Some sources told DFAT that authorities in these situations are often polite and do not typically use violence. Women are less likely to experience violence but may experience sexual harassment online. Activists report physical and electronic surveillance. Sources report activists are free to move around Vietnam (albeit while monitored), but are prevented from going abroad; for example by having passports refused.
3.57 It is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted. See also Online activists and Land and environmental disputes.
Findings
As the applicant has claimed that she has paid her debts in relation to her [Produce 1] business and no longer wishes for those claims to be included in her application, the Tribunal has not addressed those claims for protection, instead only addressing her Sur Place claims.
An applicant may become a refugee as a result of their activities in Australia which would cause them to hold a well-founded fear of persecution in their home country. Where conduct in Australia is at issue, the Tribunal must consider as to whether the applicant engaged in the conduct to bolster their claims for protection.
In Somaghi v MILGEA (1991) 31 FCR 100 at 116 the full federal court recognised that:
Article 1A (2) of the Convention, as construed in Chan, requires the decision maker, as regards an individual then outside the country of his nationality, to determine whether that person then is unwilling to avail himself or herself of the protection of the country of nationality owing to a well-founded fear of persecution which now exists for, inter alia, reasons of political opinion or membership of a particular social group. It follows that the well-founded fear of persecution which now exists may have arisen at a time when the person in question was already outside the country of nationality.
The Tribunal has considered if the applicant did join the Viet Tan in order to bolster her claims for protection. First, her claims for protection are so different from her original claims. However, that does not mean she is only a member of the Viet Tan for migration purposes. In taking into account the period of time from when she arrived until she began to associate with the Viet Tan, it was a period of four years. The time since her association with the Viet Tan began has been seven years. She has had a lengthy association with the Viet Tan and has been attending meetings, conferences, providing material for social media, and has made deep connections within Viet Tan Australia. The Tribunal considers that her desire to be politically active in the Viet Tan may have started for other reasons but it is clear that she is involved with the Viet Tan as she believes in their cause and feels a political connection.
The Tribunal accepts that the applicant is a member of the Viet Tan and as such has a political profile recognisable by the Vietnamese government.
Conclusion
The Tribunal finds that the applicant has a real chance of serious harm on return to Vietnam for her political opinion. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
In considering whether the applicant can avail herself of state protection the Tribunal notes that the actors causing the harm are state actors, that is, the Vietnamese Communist Government. Given this, the applicant would be unable to avail herself of state protection. According to DFAT the Vietnamese Government imposes limits on entry and exit for political activists and government critics through refusing to issue passports.[16]
[16] DFAT Country Information Report Vietnam 11 January 2022.
Given her profile with the Viet Tan the Tribunal considers that there is no place in Vietnam where the applicant could move to avoid the harm, she fears in her home area. The applicant would not be able to find a location to live where the authorities would not find her. Therefore, relocation is not an option.
The Tribunal finds that the applicant faces a real chance of serious harm arising from her political opinion. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
For the reasons above the Tribunal is satisfied that the applicant is a person to whom Australia has a protection obligation. Therefore, the applicant satisfies the criteria in s36(2)(a).
There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or s36(2)(aa) of the Migration Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
Member

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

[2024] AATA 2373

15 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction