1714919 (Refugee)

1714919 (Refugee) [2023] AATA 4812 (4 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sophie De Rohan (MARN: 0801852)
CASE NUMBER:  1714919
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Amanda Mendes Da Costa
DATE:4 December 2023
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 4 December 2023 at 1.23pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – membership of particular social group – divorced mother – discrimination and capacity to subsist – partner visa refused with no jurisdiction to review and unsuccessful request for ministerial intervention – family violence, separation and vulnerability to further abusive relationships – children Australian citizens and mixed race – emotional and financial support from husband’s family – country information – no legal barriers but traditional societal views about family, and stigma and discrimination in regional areas – complex social welfare system – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Immigration and Border Protection on 29 June 2017 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 the Socialist Republic of Vietnam (Vietnam), applied for the visa on 9 December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa), and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act.
The Tribunal has before it the Department’s file relating to the applicant and has also had regard to the material referred to in the delegate’s decision and country information regarding Vietnam.
The applicant appeared before the Tribunal on 3 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s father-in-law. Although an interpreter in the Vietnamese and English languages was present during the hearing, the applicant indicated that she preferred to give her evidence in English and the hearing therefore with the participants using the English language.
The applicant was represented in relation to the review, with her representative also participating in the hearing.
The documentation provided to the Tribunal for the purpose of the review includes the following:
·     Interim and Final Intervention orders made respectively 14 June 2019 and 8 June 2021.
·     Applicant’s statements to Victoria Police, dated 9 June 2019 and 13 June 2019.
·     Birth certificates (Victoria) for [Miss B] (born [date]) and [Master C] (born [date]).
·     Victoria Police Preliminary Brief.
·     Letter of support dated 8 September 2021, [Ms D].
·     Written submissions dated 30 May 2022.
In the event that the Tribunal affirms the delegate’s decision, the applicant requests that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
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.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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
In her protection visa application, the applicant claims to be a citizen of Vietnam who was born in [District 1], in the Province of Ca Mau, Vietnam, on [date]. She indicates her ethnic group is Kinh and her religion is Buddhist She states that she speaks, reads, and writes Vietnamese and English, although the latter in a limited capacity.
The applicant further indicates in the application form that her family in Vietnam comprises her mother, father, brother, and sister who all live in Ca Mau, Vietnam and in Australia her family comprises her husband, daughter (date of birth [date]) and son (date of birth [date]) who were each born in Australia and are Australian citizens.
She also indicates that in Australia her family also comprises her parents in law and her aunt and three cousins.
The applicant states that her relationship with her husband began in July 2013 and they married in Brisbane, Queensland in October 2014.
Applicant’s migration history in Australia

[June] 2014

Applicant arrived in Australia on a subclass 300 (Prospective Marriage) visa.

[November] 2014

Applicant departed Australia.

[November] 2014

Applicant arrived in Australia on a subclass (Prospective Marriage) visa.

23 November 2015

Applicant’s application for a subclass 820/810 spouse visa was refused.

24 October 2016

Applicant’s application for a subclass 820/810 spouse visa was deemed invalid due to a s48 bar.

9 December 2016

Applicant applied for a subclass XA-866 Protection visa.

Claims from the protection application

The applicant’s written claims from her protection visa application may be summarised as follows:
·She came to Australia to marry.
·If she returns to Vietnam she will be persecuted because her ability to provide for herself and her Australian citizen will be threatened as she may be discriminated against because she is a single mother.
Country information - Vietnam
The Tribunal notes that the Department of Foreign Affairs and Trade Country Information Report, Vietnam (11 January 2022) includes the following information:
Women
1.1     Discrimination against women is banned by the Vietnam Constitution (article 26). The UN Development Programme 2019 Gender Equality Index (the most recent) ranked Vietnam 65^th (with 1 being the most equal) out of 162 countries. Australia ranked 25^th. The International Labour Organization notes on its website that women form the majority of the working poor (particularly among the informal sector), earn less income and have fewer economic, employment and education resources than do men. In-country experts told DFAT there is a large gender pay gap that is made worse and more difficult to track because so many women work in the informal sector.
1.2     Women’s labour participation rate is one of the highest in the world at 73 per cent in 2019, according to World Bank data (Australia’s female workforce participation rate was 61 per cent in the same year). DFAT has heard from sources that some women have been fired for becoming pregnant, which may be an illegal, but nonetheless practised, condition of employment. Women over 35 may also have difficulty finding employment and DFAT is aware that some women claim that they were terminated at that age for age-related reasons. In-country sources told DFAT women have been disproportionately affected by COVID-19. Given their high rate of participation in the informal sector and high rates of internal migration, many women lost jobs.
1.3     Traditional views about family disadvantage women. Son preference continues, as in other Asian countries, where the traditional view is that sons and men, rather than daughters and women, carry on the family name and traditions. The problem of ‘missing girls’ and unnaturally high numbers of male births compared to female births result. Over time these preferences are lessening (but are still present) and women can now legally inherit assets.
1.4     Vietnam has family planning policies that theoretically restrict the number of children a woman can have. DFAT understands family planning policies are not strictly enforced and it is common for families to have more than the allowed two children. Today, there are few, if any, practical consequences for having more than two children; children would not be denied healthcare or education and their parents would not be punished.
Domestic violence
1.5     Violence and threatening violence against women is against the law. Spousal rape is illegal. The issue is not taboo and is discussed in the media. Some CSOs addressing women’s rights have freedom to operate and agitate for reform, and they participate in training police and judicial officers. A government survey, supported by DFAT in 2020, found that 63 per cent of women have experienced some kind of (physical, sexual, emotional, behavioural and/or economic) abuse from husbands or male partners.
1.6     Attitudes towards domestic violence are underpinned by a number of cultural factors, including traditional views of family, marriage and ‘saving face’, and the common practice for women to live with their husband’s family. Local sources noted women are expected to be a ‘good wife’ and those who experience violence may be labelled by society, families, or authorities as a ‘bad wife’; violence against them is considered to be their fault. Victims of domestic violence may experience feelings of shame or failure. The concept of honour is commonly linked to female sexual assault; marriage prospects may be considered damaged for rape victims. Police reportedly often encourage victims of domestic violence to ‘solve their problems within the family’ rather than bringing criminal charges. If legal action is pursued it is often civil rather than criminal action. The combination of societal and cultural attitudes, and the lack of availability of state protection, means women may not seek assistance unless the situation is life threatening, if at all.
1.7     Shelters might be provided by the Government or NGOs. In-country sources generally agreed that shelters are safe and clean and have adequate (though perhaps basic) food and hygiene facilities. All sources consulted by DFAT agreed that availability is a problem, with many services being at or beyond capacity. Stays are limited to six months with possible extensions. After six months, an assessment is made, and women might be returned to their community or might go elsewhere to engage in an economic activity for which they have trained in the shelter. Some women receive vocational training in shelters or have access to referral services (such as medical or legal services), but these services are not available to all victims. Women outside cities may be far away from shelters, which acts as a practical barrier to accessing services.
1.8     DFAT understands that the vast majority of women experiencing domestic violence do not access shelters or other help. Some women access services outside of shelters. Grassroots services that provide information and training, referrals and other informal support also exist including in areas where shelters are not available. Domestic violence hotlines run by CSOs in partnership with Government are also available. These services reported receiving a very high number of calls during the COVID-19 pandemic and associated lockdowns. Women might not know about services, especially in rural areas, and services must balance confidentiality to protect residents and availability for women in need.
1.9     In-country sources told DFAT mixed things about authorities’ responses to domestic violence. Domestic violence claims are often legally pursued as civil rather than criminal matters. Sources told DFAT that women who are ‘brave enough’ to contact authorities might be ignored or receive cursory and ineffective help, such as police telling a perpetrator not to ‘hit so hard’. Local authorities might deny that domestic violence occurs despite evidence to the contrary. Police might not understand legislation or policies or also be subject to traditional thinking that sees victims of domestic violence as ‘bad wives. A common theme mentioned by in-country sources was that police responses are mixed – sometimes they will attend and arrest perpetrators, other times they will be dismissive.
1.10    Relocation may be difficult or impossible. In-country sources point to barriers to relocation such as economic issues (the inability to rent a property alone because of lack of funds or lack of properties for single people) or difficulties in relocating children, along with the stigma and cultural attitudes mentioned above. This, in practice, means that many women cannot or will not relocate.
1.11    In-country sources told DFAT that escaping domestic violence is a push factor in external migration. DFAT assesses that women experiencing domestic violence have access to support services but cultural and structural problems such as poverty and inability to escape economic abuse create barriers to accessing those services.
Single and divorced women
1.12    Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. 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.
1.13    In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described 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.
1.14    Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.
1.15    Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household is not in the place where they live.
1.16    DFAT assesses that single women and divorcees do not face official discrimination but do face a moderate risk of societal discrimination.
The Tribunal notes that the United States Department of State, 2022 Country Report on Human Rights Practices in Vietnam shows (inter alia) that:
·Although the law provides for gender equality, women continue to face societal discrimination. Despite the large body of law and regulation devoted to protecting women’s rights in marriage and the workplace as well as provisions that call for equitable treatment, women do not always receive equal treatment in Employment, education, or housing, particularly in rural areas.
·Although the provides for equal inheritance, rights for men and women, a son was more likely to inherit property than a daughter, unless otherwise specified by a legal document such as a will[1].
[1] Section 6 of the report.
Background
The applicant travelled to Australia in June 2014 on a Prospective Marriage visa to marry her former husband, [Mr E]. In August 2014 the applicant became aware that she was pregnant with her first child and [in] October 2014 the applicant married [Mr E].
On [date] the couple’s child [Miss B] was born. The Tribunal notes that she is an Australian citizen[2].
[2] Birth certificate [number].
On 26 February 2015 the applicant applied for a Partner visa (subclasses 820 and 801). [Mr E] was responsible for lodging this application on behalf of the applicant and communicating with the Department regarding the progress of the application.
On 23 November 2015 the applicant’s Partner visa application was refused and [Mr E]’s father assisted the couple with representation which resulted in the applicant seeking merits review of the delegate’s decision. On 2 August 2016 this Tribunal (differently constituted) found that it had no jurisdiction in the matter, as the review application had been lodged outside the prescribed period for review.

On 12 September 2016 the applicant made a request for ministerial intervention which was refused on 14 September 2016 on the basis that the Minister had no power to intervene in the matter.
On 9 December 2016 the applicant lodged the current protection application which was refused by the delegate on 29 June 2017. The applicant subsequently lodged the current application for review which is now before the Tribunal.
On [date] the couple’s second child, a son, [Master C] was born. The Tribunal notes that he is an Australian citizen[3].
[3] Birth certificate [number].
Applicant’s evidence at the hearing
The applicant gave the following evidence during the hearing:
·She was born in [District 1], Ca Mau Province, Vietnam and is currently [age] years of age. Her parents, and married siblings (a sister and brother) continue to live there.
·Her hometown is small and has a population of several thousand residents. Her parents own and operate a [farm] and have modest financial resources.
·She remains in regular contact with her family in Vietnam, speaking to them on average twice or three times a week by telephone.
·Her parents have some idea of the problems she has experienced in her marriage and her separation from her husband, but they are not aware of the details of the reasons which led to their daughter’s separation from her husband. The applicant has not discussed these circusmtnces with her parents because she does not wish to cause them distress and worry about her welfare.
·Apart from a visit by her mother to Australia when the applicant’s daughter was born in 2015, the applicant has not seen her family since she left Vietnam in 2014.
·She attended primary and secondary school in Ca Mau City and then completed two of a three-year course in [Subject 1]. She did not complete this course because in the meantime she had commenced a romantic relationship with her now husband [Mr E]. The couple met when the applicant was a teenager and were introduced to each other by the applicant’s cousin. [Mr E] was a regular visitor to Vietnam over a number of years when he met the applicant, her parents and members of her extended family. The applicant and her parents considered him to be a person of god character who treated the applicant well.
·After commencing their romantic relationship in 2013, [Mr E] asked the applicant to accompany him to Australia where they would marry. The applicant agreed and in June 2014 she arrived in Australia on a Prospective Marriage visa.
·Although she subsequently applied for a Partner visa, this was refused because she did not provide the Department with sufficient information about her relationship with [Mr E]. This failure was due to [Mr E] (who assumed responsibility for the visa application) and did not advise her that she was required to provide additional information in support of the application.
·The couple initially lived together in Brisbane where [Mr E] obtained employment and the couple were married [in] October 2014. When [Mr E] was offered a job in Melbourne (where his parents live) the couple moved there in April 2015, where their daughter [Miss B] was born on [date].
·During their marriage, [Mr E] committed several acts of violence against her. The first occurred when she was pregnant with her daughter and the couple were living in Brisbane. After preparing an evening meal for her husband, she wished to go to bed because she was tired. [Mr E] (who was intoxicated) was insistent that the applicant remain with him whilst he ate his meal. When she refused, the couple argued, and [Mr E] slapped the applicant’s face. The applicant left the home and spent the night with her cousin who lived nearby. On the following day the applicant came to visit the applicant’s home when he apologized for his violent behaviour and promised it would not occur again.
·A further episode of violence occurred in June 2018 when the couple’s daughter was [age] and they were living with [Mr E]’s mother and sister. [Mr E] went out to dinner and when he returned home, he wanted money to visit a hotel to gamble. The couple argued about this because the applicant did not want her husband to spend their money on gambling when it was required for household bills and expenses for their daughter. After the couple’s argued, [Mr E] searched the house for money and when the applicant refused to assist him, he slapped her face. [Mr E]’s mother and sister attempted to calm him, which was initially successful. However, after a while he again became angry, smashing his own mobile phone and that of the applicant. He also threatened to smash the phones of his mother and sister if they continued to interfere in his argument with the applicant. On the following day, the applicant went to the local police station where she reported [Mr E]’s behaviour and made a complaint against him.
·[In] June 2019 the Magistrate’s Court at [Suburb 1] made an Interim Family Violence Intervention Order against [Mr E], prohibiting him from committing family violence against the applicant and [Miss B]. This order was valid until a final order was made.
·Despite the order prohibiting [Mr E] from approaching or remaining within 5 meters of the applicant and [Miss B], [Mr E] and the applicant reunited after the interim intervention order was made and resumed living together with their daughter and [Mr E]’s mother and sister.
·On 28 May 2021 [Mr E] perpetrated further violence against the applicant when he became agitated and angry when the applicant refused to wait up for him whilst he ate his dinner. [Mr E] had been drinking for most of the day and when the applicant took their son into the bathroom to change his nappy, [Mr E] followed her, yelling and swearing at her. [Mr E] struck the applicant with an open palm across the side of her face, leaving her unable to speak. When the applicant telephoned [Mr A] for assistance, [Mr E] grabbed her phone out of her hand. The applicant then attempted to escape from [Mr E], but he stopped her from running outside and threatened to kill her. When the applicant left the room, the applicant locked the door, but he returned with a butter knife and unlocked the door from the outside and continued to yell and abuse her in front of the children. He also grabbed the applicant by the shoulders. The children (who observed their father’s violet and threatening behaviour) were distressed and crying, and [Miss B] tried to protect her mother from her father’s actions. The applicant is not sure who called the police on that occasion but when her heard the police cars arriving at their home, [Mr E] ran away. He was apprehended in the garden by police and taken to the local police station where he was questioned. [Mr E] was subsequently charged on Summons with assaulting and threatening to kill the applicant. The initial Court hearing date for these charges [in] June 2022. The applicant is not aware of the outcome of these charges, although she was not required to attend court to give evidence in the matter. She is too scared to discuss the matter with [Mr E].
·[In] June 2021 the Magistrate’s Court at [Suburb 1] made a final Family Violence Intervention Order, valid until [June] 2022. The order prohibits [Mr E] from committing violence against the applicant, [Miss B], and [Master C]. The Court made a further final order [in] October 2022, valid [until] October 2023.
·The applicant and [Mr E] have not lived together or resumed their relationship since 28 May 2021. The applicant and the children have continued to live with [Mr E]’s mother and sister whilst [Mr E] has moved into separate accommodation in Melbourne. He works in [City 1], Queensland on a ‘fly in fly off’ basis.
·There are no Family Law orders in respect of the couple’s children. The applicant is their primary care giver and [Mr E] spends time with them when he is in Melbourne. Ether the applicant or [Mr A] takes the children to their father’s home and returns to collect them a few hours later.
·In addition to assisting her with taking the children to see their father, [Mr A] provides emotional and financial support to the applicant and spends a considerable amount of time with [Miss B] and [Master C]. Although he is divorced from the applicant’s mother-in-law, he and his former wife and daughter co-operate in assisting the applicant with her care of the children.
·[Miss B] is currently attending a local primary school where she is in Year [level]. She is progressing well academically and has made a number of friends. [Master C] attend child-care three days per week whilst the applicant is working. She has obtained employment in a [workplace] where she serves customers.
·[Mr E] has not been assessed for child support under the Child Support Assessment Act (Cth) 1989. However, the applicant and [Mr E] have agreed to an arrangement whereby he pays for the rent and childcare expenses, which the applicant estimates exceeds any assessed amount.
The Tribunal questioned the applicant about her concerns for returning to Vietnam. The applicant’s primary concern about returning to Vietnam is the welfare of her children. She fears that they will not be able to settle there because they have never visited the country, do not speak the language, and would miss their lives and family in Australia. Although the applicant has regular telephone contact with her parents and siblings, the children do not know any of the members of their maternal family in Vietnam.
The applicant also fears returning to Vietnam because single mothers there attract stigma and criticism for not having a partner and are discriminated against in obtaining rental properties and employment. Given she has no formal qualifications, the applicant considers it will be very difficult to obtain a job which pays enough for her to support herself and her children.
When the Tribunal suggested that the applicant and her children could live with the applicant’s parents, she conceded that this could occur on a short-term basis but that her parents were not in a financial position to support them in the long-term. She also notes that her parents continue to work their farm on a full-time basis and will not have the time to provide her with any meaningful assistance in the care of her children.
The Tribunal suggested to the applicant that the country information suggested that although there is significant societal pressure for women in Vietnam to marry, there are no legal barriers to being a single female-headed household in that country and authorities do not take any adverse action against single or divorced women on the basis of their marital status.
In response, the applicant said that whilst the authorities were unlikely to take any action against her if she returns to Vietnam as a single parent, she will face general societal disapproval, discrimination in obtaining rental accommodation and employment and her children will be teased and isolated by other children because their mother is single.
The Tribunal questioned the applicant about whether she had discussed with [Mr E], any return to Vietnam by her and the children in the event that her protection application is not granted. In response the applicant said that she was afraid to discuss the matter with him because she feared he would attempt to remove the children from her care and force them to remain in Australia with him whilst she returned to Vietnam on her own
Evidence of [Mr A]
[Mr A] is the father of [Mr E] and the father-in-law of the applicant. He confirmed the applicant’s evidence regarding the financial and emotional support he provides to her and the children and the current care arrangements for [Miss B] and [Master C]. [Mr A] explained that the marriage of the applicant and his son had been marred by his son’s excessive drinking and gambling which contributed to him committing acts of violence and threats against the applicant. He explained that despite attempting to assist and encourage his son to undertake counselling to address his alcohol and gambling problems, his son was yet to address them.
[Mr A] told the Tribunal that he was extremely concerned about the applicant and his grandchildren returning to Vietnam because they would have no financial and emotional support there. He assured the Tribunal that if they remain in Australia, he will continue to support the applicant and his grandchildren, and they will not be a burden to the Australian community.
Applicant’s Submissions at the hearing
The applicant’s submissions may be summarised as follows:
·She has a well-founded fear of serious harm if she returns to Vietnam as a single parent who has been the victim of serous family violence throughout her relationship with [Mr E]. She is particularly vulnerable to further abusive relationships because of her significant history of suffering family violence in her relationship with [Mr E].
·The DFAT Country Report on Vietnam dated 11 January 2022 indicates that single and divorced women face societal stigma and discrimination in Vietnam. They also face difficulty in accessing rental property, relocating children and face stigma and adverse cultural attitudes towards single women, including by police when seeking protection.
·The country information shows that women in Vietnam come under intense pressure to marry, and 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 by may also be on a societal or community level. In-country sources have advised DFAT that many women re afraid of being divorced due to societal and cultural factors.
·The DFAT report further shows that women over 35 years of age may have difficulty securing employment and refers to the pressure placed upon single women to marry which, along with high rates of violence against women , places the applicant at high risk of gender-based violence and discrimination.
·The applicant will not be in a position to support her children financially without a well-paid job, given she will have no family support in Vietnam.
·She will also have no support in caring for her children, which will be necessary if she obtains employment. In the absence of well-paid employment and assistance with child-care, the applicant will have an increased vulnerability to harm due to poverty and there is no social welfare support available to a person in her position.
·In terms of complementary protection, the applicant The applicant is at risk of significant harm by non-state actors and Vietnamese authorities as a result of degrading treatment because of the stigma and discrimination single and divorced women are subjected to in Vietnam.
Post hearing written submissions
Following the hearing the applicant provided the Tribunal with the following documents:
·Certificate of Merit for Excellence (dated 14 August 2023) issued by [Primary School 1] to [Miss B].
·Final Family Violence Intervention Oder made against [Mr E] by the Magistrates Court at [Suburb 1] [in] October 2022. This order is valid [until] October 2023. The protected family members are the applicant and [Miss B] and [Master C].
·Submissions dated 21 September 2023.
The applicant’s post hearing submissions may be summarised as follows:
·The applicant adopts and repeats her evidence given at the hearing.
·The applicant has two Australian citizen children for whom she is the primary carer.
·Whist the applicant and the children’s father ([Mr E]) share the legal responsibility for their children, the applicant has the primary responsibility for their welfare.
·[Mr E] has intermittent contact with his children when his work commitments permit.
·The applicant’s children have a close relationship with their paternal grandparents and together with the applicant, live with their paternal grandmother and aunt.
·The children were both born in Australia and have always lived in this country. They are happy and settled school and childcare where they are making good progress. In the event that the applicant is removed from Australia, the children would face the prospect of permanent separation from their mother. This is because [Mr E] has the right to make an application for parenting orders, preventing their removal from Australia.
·If the children relocate to Vietnam with the applicant, they face separation from their father and paternal grandparents.
·Whilst the separation of the children from either parent is not in their best interests, separation from their mother is likely to have devastating consequences on their development, family relationships and emotional well-being.
·If [Mr E] becomes aware that the applicant is returning to Vietnam with the children, he could easily issue proceedings in the Family Court or Federal Circuit and Family Court, seeking an order placing the children on the Australian Federal Police (AFP) Airport Watchlist. Such an order will enable the AFP to prevent any attempt by the applicant to remove the children from Australia.
·It would be extremely difficult for the applicant to contest any application to have the children placed on the Airport Watchlist or participate in Family Law proceedings from offshore. In such circumstances, the applicant would face permanent separation from her children.
·Country information indicates that if the applicant and her children relocate to Vietnam, they are likely to have a lower quality of life compared to Australia. This is because they will be a single parent family.
·The applicant is further concerned that her children would face prejudice and discrimination in Vietnam as they are visibly children of mixed heritage.
·Neither of the children speak Vietnamese and would struggle to adjust to life in Vietnam. It would not be possible for them to attend school in Vietnam because they do not speak the language. The applicant would not be able to afford the tuition fees for the children to attend an International school (where English is the primary language spoken) or the associated high costs of living in Ho Chi Min City, where such schools are located.
·Country information indicates that single mothers in Vietnam face societal pressures and discrimination have a lower income, job stability and poorer mental health outcomes than their married counterparts. It also indicates that children of single mothers generally experience difficulties in achieving higher levels of education.
·The precarious situation that the applicant would face as a single mother in Vietnam and the diminished quality of life faced by the children there would result in them facing significant hardship and struggle to subsist.
·Accordingly, the applicant has a well-founded fear of harm in Vietnam.
·The children would face irrevocable harm if their mother was not able to remain safely in Australia with them, or if they were to depart with her and be permanently separated from their father and paternal grandparents.
·In the event that the Tribunal finds that the applicant does not meet the criteria for the grant of a protection visa, her case should be referred to the Minister for consideration pursuant to s361 of the Act.
Assessment of Claims and Findings
Based on the applicant’s Vietnamese passport and with no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Vietnam. The Tribunal also finds that Vietnam is her receiving country for the purpose of assessing her claims under sections 36(2)(a) and 36(2)(aa).

There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purpose of s 36(3).
The Tribunal accepts that if an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt (The United Nations High Commissioner for Refugees’ Handbook on procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
When assessing claims made by an applicant, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers who are generally credible but unbale to substantiate all their claims.
Claims and Findings
The Tribunal accepts the applicant’s oral evidence regarding her family, education, and life in Vietnam before arriving in Australia. This evidence was consistent with the information in the visa application form and the applicant’s identity documents.
The Tribunal found the applicant and [Mr A] to be credible witnesses who gave clear and consistent evidence, which the Tribunal accepts. Based on their evidence, the Tribunal makes the following findings:
·The applicant and [Mr E] met in Vietnam where they were introduced by the applicant’s cousin, who was a friend of [Mr E].
·The couple travelled to Australia where they married in Brisbane [in] October 2014.
·The applicant and [Mr E] have two children together, a girl aged [age] years and a boy aged [age] years. Both children were born in Australia and are Australian citizens.
·[Mr E] was responsible for lodging a Partner visa application on behalf of the applicant, with him nominating himself as her sponsor. The fact that this application was unsuccessful was not due to any acts or omissions by the applicant.
·The marriage of the applicant and [Mr E] was characterized by [Mr E]’s excessive use of alcohol, gambling, and violence. The couple argued over this behaviour as the applicant was understandably concerned about the effect of [Mr E]’s behaviour on the family and its finances.
·During their marriage, [Mr E] was violent towards the applicant on several occasions, and this was witnessed (on at least one occasion) by the children. The applicant reported these assaults and threats to Victoria Police and obtained intervention orders in respect of which both the applicant the children were listed as protected family members. The second of these intervention orders ended [in] September 2023 and has not been extended.
·The applicant and [Mr E] separated in May 2021 and have not reconciled. They are not divorced and there are no Family law orders in existence regarding the parenting of the children. However, the applicant is the primary carer of the children and [Mr E] has informal contact with the children on an intermittent basis when his work permits, and he is in Melbourne.
·The applicant and the children are living with [Mr E]’s mother and sister. The applicant receives substantial emotional and financial support from her father-in-law ([Mr A]) who also assists with the care of the children.
During the hearing, the applicant expressed concern that if her visa application is not granted and she is required to leave Australia, [Mr E] may attempt to prevent her from taking the children with her to Vietnam. However, the Tribunal notes that the applicant has been the children’s primary carer since birth, [Mr E] has a history of domestic violence involving the children and that his contact with the children is sporadic. Based on this information, the Tribunal considers that it is likely the applicant will remain the primary carer of the children, whether she is living in Australia or Vietnam.
The Tribunal accepts the country information contained in the DFAT report which suggests that as a single mother in Vietnam, the applicant is likely to face considerable societal stigma and discrimination. The Tribunal further accepts that if the applicant returns to Vietnam, she will have limited support from her family and will not receive any financial support from family and friends. The Tribunal considers that as a woman without formal qualifications, the applicant will experience difficulties in obtaining suitable employment ad that without such qualifications, the applicant is unlikely to gain well-paid employment.
The Tribunal is further satisfied that in the absence of a well-paid job the applicant will experience difficulties in securing and funding appropriate childcare for the children in Vietnam and accepts the applicant’s submissions that if she is not able to gain employment and make suitable childcare arrangements, she will have an increased vulnerability to harm due to poverty. Although the country information suggests there is a system of social welfare in Vietnam, eligibility for it is very complex and difficult to determine in individual circumstances. The country information also indicates that even if an applicant is entitled to social welfare the amount that they would receive would be unlikely to sustain them without other means of support. Based on this information, the Tribunal is not satisfied that if the applicant would be eligible for sufficient welfare payments to support herself and the children in Vietnam.
The Tribunal accepts the country information which suggests that single women face difficulty in accessing rental accommodation and considers that as a single mother (without family support) the applicant is likely to experience significant problems in obtaining suitable rental accommodation and notes that she is not in a financial position to purchase a home for herself and the children.
The Tribunal also considers that given the applicant’s history as a victim of family violence throughout her relationship with [Mr E], she is vulnerable to further abusive relationships or being compelled into marriage to provide financial support for her children, if she returns to Vietnam.
The Tribunal notes that the DFAT country information report assess that whilst single women and divorcees do not face official discrimination in Vietnam, they do face a moderate risk of societal discrimination.
However, it considers that the applicant’s circumstances are compounded by the fact that her children are biracial and this is likely to subject her to increased, significant and persistent levels of discrimination and social stigma amounting to persecution based on her being a single mother with a history of family violence and whose children have a father who is of [Country 1] ethnicity and skin colour and physical appearance is different from the majority of other children in Vietnam. This finding is consistent with the country information contained in the 2022 United States Department of State Report on Human Rights Practices in Vietnam[4] which indicates that although the law in Vietnam prohibits discrimination against ethnic minorities. Societal discrimination is longstanding and persistent, and the government does not effectively enforce such a law.
[4] Section 6 of the report.
The Tribunal has considered whether any societal stigma, discrimination and economic suffered by the applicant could be ameliorated by the applicant’s relocation to a particular region of Vietnam. However, the Tribunal considers that the applicant is likely to experience such difficulties, wherever she relocates in Vietnam.
For these reasons, the Tribunal is satisfied that the applicant’s imputed claim of a fear of persecution in Vietnam is a well-founded one and as a such finds that there is a real chance, she will suffer serious harm if she is returned to Vietnam by reason of membership of a particular social group being a single or divorced parent with a history of family violence and whose children are bi-racial.
Having assessed the applicant’s claims individually and cumulatively, the Tribunal finds that she does face a real chance of serious harm now or in the reasonably foreseeable future, because of her position as a single female parent, with b-racial children. The Tribunal finds that the applicant’s fears of persecution are well-founded for the reasons mentioned in s 5J(1) of the Act if she is returned to Vietnam, now or in the foreseeable future.
CONCLUSIONS
Having considered the applicant’s claim singularly and cumulatively, the Tribunal finds that, if she is removed from Australia to Vietnam, there is a real chance she will suffer serious harm because of her position as a single female parent with bi-racial children. As such, the Tribunal is satisfied that the applicant is a non-Australian citizen in respect of whom Australia has protection obligations as a refugee. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Amanda Mendes Da Costa
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.
…

[2023] AATA 4812

4 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

[June] 2014	Applicant arrived in Australia on a subclass 300 (Prospective Marriage) visa.
[November] 2014	Applicant departed Australia.
[November] 2014	Applicant arrived in Australia on a subclass (Prospective Marriage) visa.
23 November 2015	Applicant’s application for a subclass 820/810 spouse visa was refused.
24 October 2016	Applicant’s application for a subclass 820/810 spouse visa was deemed invalid due to a s48 bar.
9 December 2016	Applicant applied for a subclass XA-866 Protection visa.