1723656 (Refugee)

1723656 (Refugee) [2024] AATA 4293 (4 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723656
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Amanda Mendes Da Costa
DATE:4 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 4 April 2024 at 1.29pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – opposition to political system and company laws – unsuccessful businesses and investments – loans from illegal money lenders – demands and assault, and visits to parents’ house – no documentary evidence, strong employment record and previous travel to investigate business opportunities – no political activities – country information – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), 5LA, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo WeiRong and Pam Run Juan (1996) 40 ALD 455
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 15
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 September 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 Vietnam applied for the visa on 22 May 2017. 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)(aa) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 19 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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
In her protection visa application, the applicant claims to be a citizen of Vietnam who was born in [Location], Bac Ninh Province, Vietnam on [Date]. She indicates her religion is Buddhist and that she speaks, reads, and writes Vietnamese. She indicates she initially arrived in Australia [in] January 2016 and departed [in] January 2016. She returned to Australia [in] October 2016 and departed again [in] January 2017. The applicant further indicates that she returned to Australia [in] April 2017 and has remained here since that date.
The applicant indicates in her application form that her family is comprised of her father, mother, sister and [brothers]. The applicant further states that her family reside in [Location], Bac Ninh Province, Vietnam.
The Department’s electronic and hard copy records indicate that the applicant was granted a Visitor subclass 601 visa which was valid until 24 January 2016, when it ceased and that she was granted a subclass 010 bridging visa on 20 January 2016, which came into effect on 25 January 2016 and was valid until 7 April 2016. She was granted a further subclass 030 bridging visa on 5 September 2016, valid until 24 November 2016. The applicant made the protection visa application that is the subject of this review on 6 December 2016. She was granted a further subclass 030 bridging visa on 8 December 2016, which remains in effect with a work condition.
Claims for the protection visa application
The applicant’s written claims from her protection visa application may be summarised as follows:
·She opposed the political system and opposed company laws in Vietnam.
·She will be watched and followed by the local authorities in Vietnam, who are corrupt.
·She will not be able to find employment if she returns to Vietnam and she will not be able to relocate.
·She opposed the company system in Vietnam and was followed by the local authorities there.
The Tribunal notes that apart from her passport (which was provided to the Department) the applicant has not provided either the Department or the Tribunal with any documentary material in support of her protection claims.
Applicant’s evidence at the hearing
The applicant told the Tribunal that she was born in Bac Ninh, a city close to Hanoi, Vietnam on [Date]. She has never married and has no children.
The applicant completed her schooling (the equivalent of Year 12) in Bac Minh and subsequently undertook a Bachelor of [Subject] at [College], a university located in Hanoi.
The applicant’s family is comprised of her parents, sister and [brothers], all of whom continue to live in Bac Minh. The applicant’s parents are retired and each of her siblings are married, with children. The applicant has occasional contact with her parents by telephone.
The applicant told the Tribunal that after graduation she worked for several private companies in administrative positions. She explained that she was not able to obtain a position as an [occupation related to her subject] and or in government because of a lack of influential friends or relatives with government jobs.
The applicant lived and worked in Hanoi for several years, after which she returned to live with her parents in Bac Minh. She has not been involved in any political activities in either Vietnam or Australia. Apart from work and activities with her family, the applicant had no hobbies or involvement with any social groups in Vietnam.
The applicant explained that whilst living in Hanoi she had invested in and operated [businesses 1 and 2], which were not successful. The [business 1] ceased trading in 2002 and the [business 2] in 2006. In order to invest in these businesses, the applicant used her savings and borrowed money from her family and friends. She also lost money which she had lent to friends in Hanoi who failed to repay their debts.
The applicant told the Tribunal that the major business investment she made in Vietnam was in a friend’s [company]. He asked the applicant and another friend to join him in a [project] in Hanoi, on land owned by another person. The applicant explained that she borrowed the Vietnamese equivalent of AUS 100,000 to invest in the friend’s company, [Company]. The applicant borrowed the money from 10 “creditors” who she explained were illegal money lenders. When the asked why she could not have borrowed the money from a bank or other legitimate credit provider, the applicant said that they would not have lent her the money because she had no security for a loan.
When the Tribunal suggested to the applicant that she would been given documentation by her friend to record her shareholding in the company, the applicant agreed that she had been given documentation but when the business failed, she didn’t consider it helpful to retain the documentation. Although she didn’t throw away the documents, she couldn’t remember what she had done with them.
When the Tribunal questioned the applicant about the interest rates charged by the illegal money lenders, the applicant said that she was unable to recall the amounts she borrowed from each money lender and the rates charged by each of them. She also explained that the loan agreements she entered with these money lenders were verbal and there was no paperwork to support her claim.
The applicant told the Tribunal that her investment in the company was made in late 2006 or early 2007 approximately one year after her [business 2] closed. Although the houses built by [Company] were completed and sold, the project made no profit because the cost of [supplies] rose significantly during the [project] phase and the sale prices of the [products] were fixed and could not be increased to cover the increased costs for the company.
Although the applicant made a few interest payments on the amounts borrowed from the illegal money lenders, she was financially unable to repay any of the principal amounts owed.
The Tribunal questioned the applicant about her employment between 2008 (when the company ceased trading) and 2017 when she finally left Vietnam. In response, she explained that when she was unable to repay the money she had borrowed, the illegal money lenders demanded she repay the principal. When she was unable to repay the money, she was assaulted by one of the money lenders. This occurred when she was approached by a man who demanded she repay her debts and when she said she couldn’t pay, punched her in the face and hit her over the head with a brick. He then escaped by getting into a car driven by a second man. The applicant said that her nose and head were bleeding because of this assault and whilst she attended the emergency department of a local hospital for treatment she was discharged after her wounds were cleaned and dressed.
After she received the demands for money and the assault, the applicant went into hiding and lived with friends in a town near Bac Ninh. She said that she couldn’t return to live with her parents because the illegal money lenders discovered their address and relationship with her. The moneylenders visited the home of the applicant’s parents on several occasions, demanding the repayment of the applicant’s debt. The applicant explained that although these moneylenders did not enter her parent’s home, they stood at their gate, shouting, and swearing at her parents.
The Tribunal discussed with the applicant information contained in the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Vietnam[1] which indicates that Vietnam has an appropriate system of criminal law, an effective police force and an impartial judicial system, and that usury is a criminal offence for which state protection is available.
[1] Report dated 11 January 2022.
When the Tribunal asked the applicant why (given this information) she had not reported the visits by the moneylenders to her parents to police, she explained that there would have been no point in doing this as the moneylenders would have already left her parents’ home by the time the police arrived. She said the police would not have taken any action against the moneylenders because there was no evidence of their visit to the house.
The Tribunal also questioned the applicant about the reason for her not reporting the assault on her by the moneylender, to police. In response, the applicant explained that after hitting her, the moneylender ran away, and she was taken to hospital by a friend. She said that there was no evidence for the police that she had been assaulted and, in any event, she feared that the illegal moneylenders would take revenge on her if she reported them to the police.
The Tribunal outlined to the applicant its concern that she did not include any claims (in her visa application form) about borrowing money from illegal moneylenders, failing to repay the principal, receiving demands from her creditors, and being assaulted. In response, the applicant explained that when she filled out the protection application form, she didn’t understand how to complete the form because she had no one to assist her or explain how to do this.
The Tribunal also questioned the applicant her reasons for travelling to Australia in January and October 2016, on visitor visas. The applicant explained that before coming to Australia for the first time, she had been hiding form her creditors and decided to travel to explore business opportunities here. She borrowed money from her sister in Vietnam and used it to explore the Australian market to buy supplements to treat diabetes and heart conditions, which she could ship to Vietnam for sale by her relatives there. However, the applicant said that she found it difficult to do this and returned to Vietnam.
The applicant explained that her second visit to Australia in October 2016 was also funded by her sister and its purpose was for her to explore further business opportunities here and to see whether she could buy products which could be sent by freight to Vietnam. However, she could not identify any profitable business opportunities.
The applicant told the Tribunal that her reasons for returning to Australia in April 2017 was to again explore whether she could establish a profitable business in Australia, buying goods here to sell in Vietnam and visa versa. However, she realised that the freight expenses involved would not result in her making any profit from the business and that is the reason she decided to apply for a protection visa which would allow her to remain in Australia.
Since 2017 the applicant has been working [in workplaces 1-3] and is currently working on a full-time basis in a [workplace 4]. The applicant emphasized to the Tribunal that she had not stayed in Australia as an illegal non-citizen and had paid all the requisite income tax. Whilst in Australia she had sent several thousand dollars to her mother, which had been paid by her mother on her behalf to her creditors. However, the applicant’s creditors were not prepared to apply these funds to the principal owed and were only prepared to use it for the interest payments.
The applicant told the Tribunal that although she was able to save some money during the first two years she was in Australia, she used her savings during the Covid-19 pandemic when she was unable to work because of government restrictions.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by the refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All of this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim.
The Tribunal does not have responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.(s.5AAA of the Act) Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.(MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR191; Prasad v MIEA (1985) 6 FCR 15 at 169-70).
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.(Minister for Immigration and Ethnic Affairs and McIIIhatton v Guo WeiRong and Pam Run Juan (1996) 40 ALD 455 per Foster J @p.482). Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
If the applicant’s account appears credible, he or she 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, such a benefit should 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.
Accepted personal circumstances
The Tribunal accepts the following aspects of the applicant’s personal circumstances:
·The applicant was born in Bac Ninh, Vietnam on [Date] is currently [Age] years of age.
·Her ethnic group is Vietnamese, and her religion is Buddhist.
·The applicant speaks, reads, and writes Vietnamese.
·She has never married and has no children.
·The applicant’s parents, a sister and [brothers] continue to live in Bac Ninh.
·She completed schooling to the equivalent of Year 12 and subsequently undertook studies at a University in Hanoi, graduating with a degree in [Subject].
Findings regarding the applicant’s protection claims

The Tribunal accepts that the applicant holds a Bachelor of [Subject] and was employed in several administrative positions in the corporate sector in Vietnam. The Tribunal further accepts that after living and working in Hanoi for a number of years she returned to live with her parents in her hometown of Bac Minh.
The applicant claims that whilst living in Hanoi she invested in and operated [businesses 1-2]. However, the Tribunal has not been provided with any documentary evidence regarding he applicant’s investment and the amount of any losses sustained by her when the businesses ceased trading. Nor has the applicant the provided and documents to support her claim that she borrowed money from friends for businesses or that she lent monies to other friends in Hanoi who refused to repay her. The Tribunal considers that if the applicant had made a financial investment in [businesses 1 and 2] (as claimed) she would have retained documentation regarding this investment following their closure.
The Tribunal further notes that the applicant has not provided any documentary or oral evidence supporting her claim that she had friends in Vietnam who borrowed money from her which remains unpaid.
The Tribunal has also considered the applicant’s claim that she made a further unsuccessful investments in a friend’s construction business and although she did not dispose of the documentation regarding this investment, she doesn’t know the current whereabouts of this documentation. The Tribunal does not find this explanation credible or convincing and considers that if such documentation existed the applicant would have made attempts through her family or friends in Vietnam to locate it.
The Tribunal has further considered the applicant’s evidence regarding monies which she borrowed from illegal moneylenders in Vietnam. The Tribunal finds that her evidence regarding the amounts borrowed, interest charged, and amounts repaid were vague and lacking in detail. The Tribunal considers that if the applicant had borrowed the monies as claimed, the applicant would have been able to recall least some of these details.
The Tribunal has considered the applicant’s claim that after being assaulted by the moneylenders she went into hiding and stayed with friends in to avoid them. However, the Tribunal notes that the applicant has not provided any other evidence to support her claims in this regard and the Tribunal considers that if she had been forced to hide in Vietnam, she would have included this claim in the visa application form and would not have told the Tribunal that her primary reason for travelling to Australia in 2016 and 2017 was to pursue business opportunities.
Given the above concerns the Tribunal is not satisfied that the applicant:
·Operated [businesses 1 and 2] in Vietnam.
·Lent money to friends in Vietnam, which amounts remain unpaid.
·Invested in a friend’s business which undertook a [project] in Vietnam.
·Borrowed monies from illegal moneylenders in Vietnam, the principal of which remains outstanding.
·Was threatened and assaulted by the moneylenders when she failed to make repayments of the debt and her parents’ home was visited by those moneylenders who demanded repayment of their daughter’s debt.
·Went into hiding to avoid the moneylenders.
The Tribunal discussed with the applicant her reasons for not including in her protection application form, the claims that she made during the hearing. In particular, the Tribunal noted that she did not include in her form any claims about borrowing money in Vietnam from moneylenders, not being able to pay her debts and subsequently being threatened and assaulted by the moneylenders. The applicant told the Tribunal that the reason for not including these claims was that she had no one to assist her in completing the visa application form.
The Tribunal does not find this explanation to be credible or convincing, given she claims to have been fearful of returning to Vietnam when she lodged the protection visa application because of the demands, threats, and assaults from the moneylenders in Vietnam before she initially arrived in Australia in January 2016. The Tribunal considers that she would have been able to list these concerns in her application form and that she instead chose to make claims based on her opposition to the political system in Vietnam which would result in her being followed by local authorities.
The Tribunal notes that during the hearing the applicant was unable to articulate what she meant when claiming in his visa application form that he had “opposed the company system” in Vietnam. She explained that the reason for including this claim in his application form was the result of the lack of assistance she received in completing her protection application. The Tribunal further notes that the applicant complained in her oral evidence about the difficulties she experienced in obtaining a prestigious or well-paid job in the corporate sector in Vietnam because of her lack of family connections and influence. Whilst this may be the case, the applicant was able to obtain and retain employment in the corporate sector and there is no evidence that she opposed the corporate system or faced discrimination in any of her positions in Vietnam.
Although she told the Tribunal that she feared being watched and followed again by moneylenders if she returns to Vietnam, the applicant did not suggest during the hearing that she had been watched or followed by local authorities in Vietnam, as claimed in her protection application. The Tribunal is not satisfied that there is any reason for the local authorities in either Hanoi, Bac Ninh, or any other location in Vietnam to watch or follow the applicant if she returns to Vietnam.
The Tribunal notes that in her evidence at the hearing the applicant told the Tribunal that she had no history of involvement in political groups or activities in either Vietnam or Australia. This leads the Tribunal to have concerns about the claims made by her regarding her fear that she will be watched and followed by the authorities if she returns to Vietnam, based on any political views she holds or any politically motivated activities on her part.
The Tribunal has also considered the applicant’s claims in the protection application form regarding her employment prospects if she returns to Vietnam. The Tribunal notes that the application has a qualification in [subject] and worked for several years in administrative positions. The Tribunal further notes that the applicant has been employed in Australia [in workplaces 1-4]. Based on this evidence the Tribunal is satisfied that the applicant will be able to obtain employment whether in Hanoi, Bac Minh, or other parts of the country if she returns to Vietnam.
The Tribunal does not consider the applicant’s explanation for not reporting to police the claimed visit to her parents’ home and the assaults on her by moneylenders to be credible or convincing. The Tribunal considers that if the moneylenders had visited her parents’ home to intimidate them and the applicant, the applicant would have reported those visits to the police. The fact that the moneylenders would have left the premises before the police arrived would not have prevented the police from investigating the matter and the applicant’s parents would have been able to provide some information (including descriptions of the moneylenders) to police.
Similarly, the Tribunal does not accept the applicant’s claim that that there was no point in reporting the moneylender’s assault on her to police because the assailants left the scene immediately after their attack. The Tribunal considers that the applicant could have provided information regarding the assault including a description of the assailants which would have enabled the police to investigate the matter. Nor does the Tribunal accept the applicant’s explanation for not attending a hospital for medical examination following the assault by the moneylenders. The Tribunal considers that if the applicant had been assaulted as claimed and hit on the head, she would have sought medical assistance.
The Tribunal has considered the applicant’s explanation for her travelling to Australia in 2016 and 2017. The Tribunal notes that it focused on exploring business opportunities in Australia rather than concerns for her own safety in Vietnam and that after travelling to Australia in January 2016 she returned in April 2016 and April 2017. The Tribunal considers that if the applicant was concerned about the threats and assault by the moneylenders she would not have returned to Vietnam.
From the available country information, the Tribunal finds that Vietnam has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system. The Tribunal further accepts that DFAT assesses that people who owe money to loan sharks face a moderate risk of violence.
If the applicant did borrow monies as claimed (which the Tribunal has found she did not) she claims that upon her return to Vietnam, she will not be able to repay her debts and will be seriously harmed by the loan sharks. If there is a real chance that the applicant will be seriously harmed by a money lender or lenders upon her return to Vietnam (which the Tribunal found she has not) then based on the available country information the Tribunal finds that the applicant would be able to obtain effective state protection to the extent that there would be no real chance that the applicant will suffer serious harm if she returns to Vietnam.
The Tribunal is further satisfied that the applicant’s tertiary qualification and work experience in both Vietnam and Australia will enable the applicant to obtain employment in Vietnam if she returns to Vietnam.
Therefore, by operation of s 5J(2) and s 5LA, the Tribunal finds that the applicant does not have a well-founded fear of persecution as a victim of a loan shark or sharks as claimed or for any other related reason.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that the applicant fears being persecuted for one or more of the five reasons mentioned in s 5J(1)(a), and that there is a real chance that the applicant will suffer persecution for one or more of the five reasons mentioned in s 5J(1) if he were to return to Vietnam, now or in the foreseeable future.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
The applicant claims that he satisfies the requirements under s 36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman, and degrading treatment, or punishment. In particular, the applicant claims that there is a real risk he will suffer significant harm for the reasons detailed in his application for a protection visa as expressed above.
In MIAC v SZQRB[2], the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm in Vietnam by reason of her borrowing monies from illegal money lenders, being threatened and assaulted by them, by demands being made of her parents for the repayment of the debt or by being forced to hide from the moneylenders at the homes of friends.
[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.
At no stage did the applicant in his application or to the delegate or Tribunal advance any claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circusmtnces, to be considered.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk she will suffer significant harm as required by s 36(2)(aa).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Based on the above findings (both individually and cumulatively) the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 3692)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Mendes Da Costa
Member
- Extract from Migration Act 1958

ATTACHMENT
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 4293

4 April 2024

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