1728245 (Refugee)

1728245 (Refugee) [2023] AATA 1510 (23 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1728245
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Andrew McLean Williams
DATE:23 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration, with the following directions:
(i)The Applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 23 March 2023 at 9:37am
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – membership of particular social groups – people in significant debt with no ability to repay – people of adverse interest to powerful people or groups due to significant debt – people involved in a large-scale illegal arrangement to leave Vietnam – failed asylum seekers – religion – Catholic faith – there is a real chance that the applicant will suffer serious harm – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91, 101, 109, 499
Migration Regulations 1994, 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 19 October 2017, thereby refusing to grant the Applicants protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicants, who are all citizens of the Socialist Republic of Vietnam, originally applied for the visas on 21 October 2016. The Delegate refused to grant the visas on the basis of the Delegate having determined that the first-named Applicant was not a person in respect of whom Australia has any protection obligations, as outlined in either of s.36(2)(a), or s.36(2)(aa) of the Migration Act. In these circumstances, the other named Applicants - as family members of the first-named Applicant – also did not qualify, under either s.36(2)(b) or s.36(2)(c) of the Act.
The Applicants appeared before the Tribunal in Brisbane, on 26 May 2022 to give evidence. The Tribunal hearing was conducted with the assistance of a Vietnamese-English interpreter. The Applicants were represented in relation to this review by Ms Carina Ford of Carina Ford Immigration Lawyers, Footscray Victoria. Ms Ford also attended the Tribunal hearing in Brisbane. In addition to the Applicant, the Applicant’s wife, and one of the Applicant’s three sons also gave evidence before the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are as set out in s.36 of the Act, and in 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 that person qualifies as a ‘refugee’.
A person qualifies as a refugee if, in the case of a person who has a nationality, they are outside the country of their own nationality and, owing to ‘a well-founded fear of persecution’, they 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, they are unable or unwilling to return to the country of their former habitual residence: s.5H(1)(b).
Under s.5J(1) of the Act, 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 as not to have such a fear are then set out, in ss.5J(2)-(6) and ss.5K-LA of the Act, 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 then set out in ss.36(2A) and 36(2B) of the Act, which are also extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84 as 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 the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that these are relevant to the claims under consideration.
CONSIDERATION OF Claims and evidence
At the outset, the Tribunal records that it is satisfied with the identity of each of the Applicants, as citizens of the Socialist Republic of Vietnam. Vietnam is the ‘receiving country’ for the purposes of assessment of the Applicants’ protection claims; and the Tribunal is also satisfied that none of the Applicants have any entitlement to reside in any third country, being any country other than either Vietnam, or Australia.
The central issue in this case is whether the first-named Applicant is owed protection obligations by Australia under either of s.36(2)(a) or s.36(2)(aa) of the Migration Act. In the event that protection obligations are owed to the first-named Applicant, then it follows that the other Applicants will qualify as ‘family members’, under either s.36(2)(b), or (c) of the Act.
None of the other named Applicants have made any specific protection claims of their own, such that the factual claims that are under consideration by the Tribunal primarily relate to the first-named Applicant, although it was submitted[1] on behalf all the Applicants that the threat of recrimination action by illegal money lenders (‘Loan Sharks’) in Vietnam against the first-named Applicant may also be exacted against other family members, as well. On that basis at least, and because of s.5K of the Act, the claims made by the first-named Applicant and as now discussed in greater detail below have been treated by the Tribunal as if these were a broader ‘family claim’, and applicable mutatis mutandis to all members of the [family].
[1] Transcript, 26 May 2022, p. 20-21, lines 41- 21. See also p. 22 line 5 – p.23 line 24.
For the reasons now expressed by the Tribunal, further below, the Tribunal has concluded that the matter should be remitted for reconsideration, subject to a direction from the Tribunal.
A preliminary issue
Before dealing with the Applicants substantive protection claims, it is necessary to deal with a preliminary matter. On 10 April 2019, a certificate under s.438 of the Act was issued by the Department in relation to certain information, informed to the Department about the Applicants in Australia by means of an anonymous “dob-in report”, and assessed by the Department as potentially adverse to the Applicants.
On 6 May 2022 the Tribunal wrote to Carina Ford Lawyers as the representative of the Applicants, disclosing a copy of the s.438 certificate, and inviting submissions regarding the validity of same.
On 20 May 2022 Carina Ford Lawyers wrote to the Tribunal submitting that the certificate issued under s.438 was invalid, on specified grounds; or alternately, that the material covered by the certificate should still be disclosed to the Applicants, in an exercised of the Tribunal’s discretion (‘the preliminary issue’).
The preliminary issue was dealt with by the Tribunal at the commencement of the hearing on 26 May 2022, whereupon the Tribunal determined, in oral reasons[2] that are not now repeated in these substantive reasons, that the certificate issued on 10 April 2019 was a valid certificate for purposes of s.438; yet that pursuant to the discretion reposed in the Tribunal in consequence of s.438(3), it was appropriate to at least provide the Applicants with oral particulars of the general gravamen of the allegedly adverse information now subject to the s.438 certificate, yet to do so subject to a written direction issued by the Tribunal pursuant to s.440 of the Act restricting any derivative use of the particulars so provided.
[2] Transcript, 26 May 2022, p.7 lines 1 – 43.
In broad compass, the allegation was that anonymous information had been received via the Department of Home Affairs “dob-in” hotline, to the effect that one of the Applicant’s [sons] was working, on a full-time basis, at a [named] [business] in Brisbane, despite he and all his other family members having no work rights, by reason of their being in Australia pursuant to a Bridging Visa E (‘BVE’), that had been conditioned as precluding the Applicants of any work rights.
After that allegation was particularised, a short adjournment took place for the Applicants to seek legal advice. On resumption of the Tribunal hearing, the Applicants elected to deal with the allegation by means of oral evidence, given under oath by [Master A], on the basis that he was the son in relation to whom the anonymous dob-in allegation specifically related.
Evidence was then received under oath by the Tribunal from [Master A], who explained the following:
-[Master A] had arrived in Australia as a child. After in initial period of English language immersion, he had undertaken all of his high school education in Brisbane, graduating in [year].
-At the time when his father (the primary Applicant) had been detained and put into immigration detention, [Master A] was still a school student. Although his father was only held in immigration detention for a relatively short period, when released from immigration detention and allowed to resume living in the community with his family, his father no longer had any work rights. In consequence, no other family members had work rights from this point going forward, either. [Master A] therefore completed his high school education with the express understanding that he could not enter the work force;
-Because he is not allowed to work, [Master A] now fills in his days by ‘hanging out’ with friends, going fishing, and doing woodwork, as a hobby. A close friend of [Master A]’s works full-time at the [named] [business], and [Master A] would often hang out with his friend, while his friend was at [work]. [Master A] was not an employee of the [named] [business], and never received any payment. However sometimes, and purely as an aspect of their friendship, [Master A] would help his friend with some work tasks: for example, doing things such as helping his friend [with tasks]. In return, [Master A]’s friend would provide [Master A] with hand-me-down clothing, and would purchase food and drink for him, as well as pay for their social outings.
Tribunal’s assessment of the preliminary issue
Having heard this oral evidence, the Tribunal accepts the truthfulness of all of the things said by [Master A], and determines that the matters covered by the s.438 Notice are immaterial to the matters under consideration by the Tribunal; such that these do not bear upon any of the issues for resolution in this application for review. In that light, no adverse weight attaches to any of the s.438 notice information in any part of the Tribunal’s deliberation regarding the Applicant’s entitlement to protection, and no further account is taken of the s.438 notice information by the Tribunal.
Primary Applicant’s visa history
The primary applicant, Mr [B] was born in [year] and is now [age] years of age. [Mr B] arrived in Australia on [date] March 2014 as the holder of a ‘Skilled Independent (Subclass 189) visa.
According to the visa application that had given rise to [Mr B] being conferred with a Subclass 189 visa, [Mr B] is a fully qualified [Occupation 1]. In fact, [Mr B] has never either trained as, or worked as an [Occupation 1]. In reality, [Mr B] had completed his formal education in Vietnam at the end of the equivalent of [a grade], before training as a [Occupation 2].
On 17 June 2015, the Subclass 189 visas held by the [family] were cancelled pursuant to s.109, on the basis that s.101(b) of the Act had not been complied with, because incorrect answers or information (obviously relating to [Mr B]’s qualifications) had been provided, as part of the Subclass 189 visa application.
[Mr B] and his wife and children were however completely unaware of the cancellation of their Subclass 189 visas, until 1 August 2016, when [Mr B] was stopped by the police on his way home from work one day for purposes of a random roadside breath test. A routine check on the details of [Mr B]’s driver licence conducted at that time had revealed to the police that [Mr B] was an illegal non-citizen, such that [Mr B] was arrested by the Queensland Police, before being handed over to officers from Border Force; whereupon [Mr B] was taken to [a] Detention Centre.
On 21 October 2016 and whilst in immigration detention, [Mr B] applied for a protection visa.
In relation to the circumstances of his having previously applied for a skilled migration (Subclass 189) visa, [Mr B] informed the Department in a statement signed on 28 September 2016 that he had been born as the son of a Viet Cong fighter who had been killed in fighting with the Americans when [Mr B] was only about [age] years of age. Then, when [Mr B] was aged about [age], his mother had remarried, and [Mr B] was sent off to live with his grandmother in [a] small rural village in impoverished economic circumstances.
[Mr B] and his family are members of the Catholic faith, and life in Vietnam had always been very difficult. [Mr B] was compelled by his circumstances to leave school early, to commence work in construction.
By the time that [Mr B] had married and had children of his own, [Mr B] and his wife hoped for far better circumstances and opportunities for their own children. In this context, [Mr B] explored the possibility of his relocating his family overseas. In this vein, the statement made on 28 September 2016 continues:
[8]“I was told by a co-worker that there was an agency that prepared Australian visa applications for you. They told me they knew people who had gotten visas through this agency. The agency was called I ask them for the telephone number of the agency to make enquiries. I told them I was a [Occupation 2] when they asked me what skills I had. They told me I was eligible for a permanent visa, and that after three years I would be able to become an Australian citizen. They were very convincing and offered me a guarantee that I would be granted the visa They told me they would take care of all the paperwork. I had no doubt at all that it was legitimate. They told me it would cost $75,000. I paid in four instalments. I thought this price seemed normal because I knew that Australian visas were very expensive. The agency told me that I could go overseas and have a brighter future for my children, and I trusted them.
[9]I only visited the agency once,[3] to pay – the rest was done over the phone. I spoke to a number of different people over five different occasions. I provided our passports and birth certificates. One person I spoke with was called [name]. The process took approximately one month. They did not send me anything to check. We were granted visas in March 2014.
[3] In an updated statement dated 19 May 2022, the Applicant indicates that this is not correct, and attributes the error to a mistake in translation. [Mr B] corrected this by stating that he would receive a telephone call and then go to the agency to pay instalments, in cash. There were four instalment payments.
[10] When I received the grant, it took over one month to prepare to leave. I did things like sell our assets: I had one house and two pieces of land. I also borrowed money to have enough to pay the agency and have some money to live in Australia. I borrowed from family members on my wife’s side. I was very excited and happy. I did not think there was any issue with the visas we had been granted – it felt 100% safe, I did not doubt anything.
[11] My plan was to study when I came here to find a good job and live here safely with my family.
[12] I came to Australia on a Skilled – independent (subclass 189) visa with my family, although I did not know this at the time. I had no idea that they nominated my occupation as [Occupation 1]. ‘[Deleted]’ is not my email address – I have never seen that before.
[13] When our visas were granted, we were told that we were now permanent residents and we could travel to Australia and live there permanently. They told us that we were free to make our lives in Australia and that there were no restrictions on our visas. They told me that I could get Medicare after one month, and to get a bank statement.
[14] When we came to Australia, we started living in Brisbane. We moved because the landlord wanted to take the house back. At first, I didn’t have a job, so we lived on the money I had borrowed, but then I found work on a [farm]. I also did work in [an area] – a friend trained me, because [this industry] here is different from what I learned in Vietnam. I wanted to eventually become a qualified Australian [Occupation 2]. I wanted to learn English first, set my family up, and then pursue this goal.
[15]My wife and I enrolled the children in school. I was so happy about this. They really enjoy their studies and are good at them. My wife stayed at home to look after the family.
[16]I felt that my life had changed completely. The children were very happy, and the teachers were good and kind.
[17]On 1 August 2016, I was driving my car and was stopped. I did a breath test and the police checked my license. I had to sit on the grass on the curb-side. They asked me to stand up, take off my jacket and put my hands against the car. They put me in handcuffs and told me to get into the police car. I had no idea what was going on – it was terrifying and shocking. I was scared and sweating – I do not remember much about what happened.
[18]I was at the police station for about two hours. Eventually, they gave me a translated piece of paper and said that my Visa had been cancelled. It was at this point that I found out my Visa had been cancelled six months ago. The police kept my wallet and telephone and I had handcuffs this whole time. I heard my phone ring, but I was not able to answer.
[19]I was then taken to immigration detention. I was deeply shocked. It was night time already. I was tired, sweating and very worried. I had not been able to tell my family where I was, and I did not know what was happening. It was 6 PM when I came to the immigration detention centre in Brisbane. I borrowed a mobile phone from someone and called a friend, [name deleted], to tell him where I was. I asked him to go to my car and take the keys of the car to drive it to my home. I asked him to tell my wife that I was okay. I was not able to call my wife because her number was in my telephone.
[20]My family were terrified and very upset.
[21]We never imagined there was a problem with our visas. We had no reason to think that. We never received any notification about cancellation. I never dream that this could happen.
[22]We now know that the agency who obtained our visas acted fraudulently. I don’t know how to how they did the paperwork – They just told us it was fine. We trusted them and could not read English. This makes me very, very sad.
[23]I am very worried for my family if we return to Vietnam. We sold everything. We have nothing there – no land, no house, nothing. I have a lot of debt now. No matter how hard I worked, I would not even be able to pay the interest on that debt.”
[24]Also, my survival skill is no longer. I would have a tremendous burden. I do not think I could survive the pressure. I would not be able to cope with the stress.
[25]If I cannot pay the debt, the people who have loaned me that money will not forgive me. I fear they would harm my family or myself. I would be very afraid for my family. I owe money in my extended family but also to other people who I believe may have criminal connections. Friends referred me to them and guaranteed it for me. It was not easy for me to borrow from them. I borrowed money from these people because I wanted to take care of my children and give them a better life by migrating to Australia. At that time, I was thinking simply: I thought I could work in Australia and everything would go smoothly, so I could pay back the debt. I knew they weren’t good people probably wanted to qualify for the Visa.”
…./

Shortly after his having applied for a protection visa, a Bridging Visa E (‘BVE’) was issued, whereupon [Mr B] was released from detention and was permitted to return to reside in the community with his family. Denied any working rights under the BVE, the [family] have managed to continue subsisting in the Australian community for more than five years now, because of charity extended by the local community, especially from within their own church congregation. [Mr B] has applied for work rights to be added as a permitted condition to his BVE on two occasions - 5 July and 15 November 2019 - yet unsuccessfully each time.
Initial enunciation of the Applicant’s protection claims:
When [Mr B] first made application for protection, his claims for protection were summarised by Carina Ford Lawyers in a covering submission dated 18 October 2016 as being made under each of s.36(2)(a) and s.36(2)(aa), on the basis that [Mr B] and his family fear harm on the basis of their membership of particular social groups - being people in significant debt with no ability to repay that debt, and people in debt to debt organisations who cannot repay that debt; and on the basis of their Catholic faith.
[Mr B] attended a protection visa interview with department officers that was conducted on 14 September 2017. In a post-interview submission made by Carina Ford Lawyers under cover of a letter dated 13 October 2017, the Applicant’s legal representative complained about the adequacy of an opportunity to meaningfully enunciate the basis of the claims for protection afforded during that interview; as well as then summarising the basis of the Applicant’s claims for protection, as follows:
·In order to leave Vietnam, the Applicant and his family had sold all their property and [Mr B] took out a loan of VND300,000,000 from a third party [name 1], as well as a further loan - the equivalent of approximately AUD$25,000 from family - as well as 300 million dong (the equivalent of AUD $20,000) from a black market lender at 15%, per month. Their visas cost AUD$75,000 and the family used the proceeds of the sale of their land in Vietnam and the loan monies to pay for these. When taking the loan from the third party, [Mr B] had to provide his national identity card, as well as his family book to the lender. The loan was also partly secured, against his mother-in-law’s home in Vietnam.[4]
[4] Submission, paragraph [12].
·The family fear harm from the third party to whom they now owe the money. They also fear harm from the authorities in Vietnam for their involvement in the [visa] fraud. They fear harm from the individuals who arranged the [visa] fraud. They fear harm because of their family connections to a past regime, and because they have departed Vietnam illegally and sought protection in another country.[5]
[5] Submission, paragraph [13].
·The family fear harm on the basis of their membership of particular social groups, being people in significant debt with no ability to repay that debt, and people in debt to debt organisations who cannot repay that debt; and on the basis of his Catholic religion.[6]
[6] Submission paragraph [17]
·[Mr B] fears harm based on his membership of particular social groups (‘PSG’), including:
PSG-1:People in significant debt with no ability to repay that debt;
PSG-2:People of adverse interest to powerful people or groups due to significant debt;
PSG-3:People involved in a large-scale illegal arrangement to leave Vietnam;
PSG-4:Failed asylum seekers.[7]
·[Mr B] fears the government will impute an opposing political opinion to [Mr B] (and to his wife and sons) because they left Vietnam unlawfully and applied for protection in a Western country,[8] and because [Mr B]’s father-in-law was an officer under a previous regime and was put into a concentration camp for years, such that the risk is greater that the family will be imputed with an anti-government political opinion.[9]
·The family express fears in relation to their prospective return to Vietnam on grounds of their Catholicism, not as a standalone claim but “because it effects the ability of the family to relocate and seek state protection”.[10]
·In the alternative, [Mr B] meets the requirements for protection under s.36(2)(aa) on grounds that there is a real risk as a necessary and foreseeable consequence of [Mr B] being removed from Australian and returned to Vietnam that he will suffer significant harm (both psychological and physical) in the form of arbitrary loss of life, torture or being subject to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment.[11]
[7] Submission paragraph [36].
[8] Submission [50]
[9] Submission [51]
[10] Submission at paragraph [53]
[11] Submission paragraphs [73], [75].
As can be seen from the above enunciation of protection claims, the 13 October 2017 submission gives rise to a broadening of the protection claims, replete with a number of different integers. In the reasons for the decision now under review, the Delegate attempted to summarise these, into the following:
·he fears harm on the basis he is in significant debt with no ability to repay that debt;
·he fears harm as he is of adverse interest to powerful people or groups due to significant debt;
·he is involved in [a] large-scale illegal arrangement to leave Vietnam; and
·he fears return should he return to Vietnam as a failed asylum seeker.
When dealing with that synopsis, the Delegate accepted that [Mr B] owes money to family members in Vietnam. The Delegate also accepted that [Mr B] is a practising Catholic, and a member of a registered Catholic Church in Vietnam. However, the Delegate was not prepared to accept that:
·[Mr B] owes money to individuals with criminal links in Vietnam, or
·[Mr B] is at risk of significant harm, in the event of his being required to return to Vietnam, as a member of a particular social group, being people in debt with no ability to repay that debt; or
·[Mr B] would be at risk of adverse attention from the Vietnamese authorities, either on the basis of his membership of a particular social group (people involved in large-scale illegal arrangements to leave Vietnam); or because of any potential to be categorised in Vietnam as a failed asylum seeker.
35.So far as is now relevant to the exposition of reasons on this de novo re-hearing, analysis of the Delegate’s reasons indicates that the Delegate was unpersuaded that [Mr B] had borrowed monies from ‘unauthorised lenders’: essentially by reason of there being no documentary evidence in support of that claim. Here, the Delegate reasoned:
“I have insufficient evidence before me to be satisfied of this claim. I am therefore not satisfied that the Applicant holds a genuine fear of harm from of [sic] criminals or ‘powerful people’ for the reasons relating to his debt as claimed.”
36.For reasons elaborated further below, the Tribunal takes the view that the evidential support for the claims as were expected by the Delegate at first instance were too onerous, and beyond that which might reasonably be expected in light of the DFAT Vietnam Country Information, or as is even required, by law.[12]
37.The Delegate also raised concerns that, in the 18 October 2016 statement, [Mr B] had said that he had paid for his Australian visa ‘electronically and other the phone’ yet in the protection visa interview in 2017 he had variously stated that this had been done in person, via four cash instalments, in circumstances in which “the applicant did not provide a feasible explanation for this discrepancy”. Yet, as at the date of the Tribunal hearing, that discrepancy had been satisfactorily explained as an inaccuracy arising in translation. On the basis of its own re-assessment of the audio recording of the protection interview originally held on 14 September 2017 the Tribunal also considers that the Delegate approached the issue too inflexibly, inadequately allowing for the obvious difficulties in attaining exactitude that may arise whenever evidence must be (as was the case in this instance) received via an intermediary translating between different languages.
38.The Delegate was also not prepared to accept that [Mr B] was at risk in Vietnam as a person in debt without any ability to repay the debt. Here, the Delegate reasoned that [Mr B] could just as easily return to Vietnam and resume either agricultural labouring or factory-type employment, and thereby earn enough to repay the debt. In the Tribunal’s view that assumed reasoning is not reasonably open at this point in time, when the Tribunal is required to re-consider the issue, as it fails to take sufficient account for the paucity of earnings for unskilled workers in Vietnam, nor of the crushing, insurmountable effect of several further years of compounding interest on the debt in the interim. In the absence of any capacity to make regular payments since at least 1 August 2016, the Tribunal accepts that there are now no reasonable prospects for [Mr B] having an effective capacity to repay the loans taken out by him in 2014, if he were to now be required to return to Vietnam. If anything, that state of affairs heightens the risk of harm in the event that he were to be returned to the receiving country.
[12] See the consideration of Randhawa v The Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253, at paragraph [55] of these reasons.
Narrowing of the Applicant’s protection claims
39.Because the protection claims had been presented with so many integers, the Tribunal hearing on 26 May 2022 initially proceeded with an attempt to disaggregate these, for necessary separate analysis. Yet, as was to become increasingly clear over the course of the hearing, [Mr B] and his wife do not specifically fear returning to Vietnam on the basis of their Catholicism; or because of any risk of their being categorised as ‘failed asylum seekers’; or by reason of their being classed as persons involved in large-scale illegal arrangements to leave Vietnam (and certainly on this latter point there is no evidence to suggest that [they] were anything other than unwitting victims).
40.Ultimately, the [family] claims for protection relate only to their concerns about harm because of [Mr B] having borrowed a (comparatively) large sum of money from illegal money lenders, and not now having any capacity to repay the debt and its steadily compounding interest premium; given that his plan had always been to work in Australia to raise funds to repay the debt over an approximately ten year period. That plan was however thwarted by the fact of the removal of any ongoing work rights, on the BVE.
41.The following excerpt from the transcript of the Tribunal hearing from the evidence given by [Mr B]’s wife, [Ms C], late in the day on 26 May 2022 serves to underscore the singularity of the Applicants’ concerns about the prospect of their being compelled to return to Vietnam:
MEMBER: The reason I ask these questions, I accept that [illegal lenders] is your primary fear, [however] the reason I ask these questions is that other fears have been expressed. One is that you will suffer harm because you came to Australia under an illegal migration arrangement; one is you may be required to return to Vietnam as failed asylum seekers; another is because your - you fear harm because of your Catholic religion; and another is that you have a fear of harm based upon your assumed political opinion because you left Vietnam and therefore you must be some kind of opponent to the Vietnamese regime; are any of those the case, those other reasons?
INTERPRETER: “There’s only a single reason. We are afraid that we are harmed and injured by the Mafia, the underworld figures, the loan shark lenders, because we would be unable to pay back the money we owe them. The daily wage in the family is just 200,000, barely enough to buy a kilo of bok. We would not be able to pay back the interest and the principal.”
MEMBER: “[Mr B], you have [just] heard your wife’s evidence. Is it the case that there is only one basis for your claim for protection and that is fear that there will be reprisals by moneylenders in Vietnam?”
INTERPRETER: “That’s correct”.[13]
[13] Transcript, 26 May 2022 p-76, lines 13 – 31.
In light of this oral evidence, the Tribunal proceeds on the basis that the claim for protection is to be assessed solely on the basis that [Mr B] (and, by association, other family members) belonging to a particular social group (‘PSG’): persons who have borrowed money on usurious terms from black market money lenders, and who have no ability to repay their debt. This is a focussed claim for protection, arising under s.36(2)(a) of the Migration Act.
Vietnam Country Information
Because of Ministerial Direction 84, DFAT Country Information Reports afford important factual context, for which the Tribunal must have regard.
According to the DFAT Country Information Report on Vietnam (11 January 2022), the following is now accepted as trite by the Commonwealth of Australia in relation to the practice of usury in Vietnam:
People who owe money to loan sharks
3.102 Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.
3.103 Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks, but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.
3.104 There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats, or violence for family members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place.
3.105 Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts.
3.106 While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders.
3.107 DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.
In addition, the Department of Home Affairs ‘Common Claims’ report for Vietnam (25 October 2022, at page 20), contains the following in relation to loan sharks in Vietnam:
“Consequences of non-payment of loans range from harassment to (less-frequently) violence.
Authorities advised the UK FFM[14] that late payment of loans could result in lenders hiring external gangs to carry out debt collection through the use of threats, ‘psychological terrorisation’ such as throwing dirt, sending funeral wreaths/coffins, destroying property, injury or humiliation and causing trouble at residences or the workplace. Media reported that lenders activities of harassment included seizing borrower’s assets, entering their homes to watch TV and play loud music, blocking their entrances and iCloud accounts, throwing rotten eggs at their children on their way to school, mailing them obituary notices, and in rare cases, kidnapping and torture. The DFAT country information report states that the potential for retaliation for unpaid debt exists and can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members unpaid debts. Some sources suggest that loan sharks may be able to track people throughout the country, particularly if the loan source is a gang, and sometimes with the cooperation of the police.”
[footnote references in the original omitted]
[14] ‘Fact Finding Mission’.
In a similar vein, according to the United Kingdom Home Office report ‘Country Policy and Information Note: Vietnam: fear of illegal moneylenders’ dated December 2018:
“…People can borrow money from illegal moneylenders with very little collateral and sometimes without providing any personal information or guarantee other than their signature. Interest rates are not usually written on loan papers making it hard for people to keep track of how much they owe and difficult to provide the loan or interest rate as it is not documented. Interest rates are often extortionate and the loanee can be required to repay many times the value of the money they initially borrowed”.[15]
[15] at [2.4.2], p. 24.
In a report of the British Home Office Fact-Finding Mission to Vietnam published on 9 December 2019 (at page 24), it is recorded that enforcement gangs hired by creditors are often convicted criminals, who also often carry weapons. In-country diplomatic sources further informed the Fact-Finding Mission that in circumstances where a loan is taken out from an illegal money lender, it becomes, in effect, a debt owed by the whole family; and that it is therefore possible that other family members may also face retribution for unpaid debts. The Home Office Fact-Finding Mission was also advised that criminals are able to ascertain the whereabouts of persons who move to other parts of Vietnam via their obtaining this information from the Vietnamese police, who are known to be susceptible to bribes, in exchange for information.[16] This latter point accords with other information documented by DFAT, which records in paragraph [5.4] of the Country Information Report for Vietnam from January 2022 that:
“a 2019 Transparency International survey on corruption found that more than 61 per cent of Vietnamese people had paid a bribe to police in the last 12 months. Sources have reported cases of organised crime group groups bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help”.
[16] Ibid, p. 25.
Claims Analysis
Despite some initial confusion, ultimately, it was established during the Tribunal hearing that [Mr B] had arranged loans via four separate sources in Vietnam in order to raise enough funds to pay for his family to obtain Australian visas:
·300 million Dong from illegal money lenders at a monthly compounding interest rate of 15%;
·Another 150 million Dong for a period of ten years from a woman in the village named [Ms D], at a monthly interest rate of 10%, secured against the title deed to the home in Vietnam owned by [Mr B]’s mother-in-Law;
·the equivalent of AUD$20,000 from [Ms C]’s ‘[Aunty]’, (who it is claimed[17] herself had borrowed the money given to [Mr B] from another loan shark lender); and
·the equivalent of a further $AUD $5,000 from [Mr B]’s adoptive older [sister], given as an interest free loan.[18]
[17] Transcript, 26 May 2022, p. 45, line 27.
[18] Transcript, 26 May 2022, p. 37

Although [Mr B] had informed Departmental Officers during his protection interview on 14 September 2017 that the lending was mostly unable to be proved by means of any documents in his possession, he did advise that there was at least a loan document evidencing the ten year loan from the ‘village lender’ [Ms D], including the giving of security to [Ms D] over the title to the house owned by [Mr B]’s mother-in-law. This document was not subsequently produced by [Mr B] to the Department in the aftermath of that interview, which had been a material consideration in the Delegate’s decision refusing [Mr B] protection. However, the document evidencing the loan from [Ms D] was eventually produced to the Tribunal - when leave to produce it was afforded after the hearing on 26 May 2022, and after the importance of same had been impressed upon [Mr B] and his representative by the Tribunal, during the hearing. Despite the late production of that document, the Tribunal now accepts it to be an authentic document, that is corroborative of at least one aspect of [Mr B]’s overall lending, such that it is taken as evidence that lends credence to [Mr B]’s ‘overall lending narrative’.
The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[19] The court held that ‘well-founded fear’ involves both subjective and objective elements. The definition will be satisfied if an applicant can show genuine fear, founded upon ‘a real chance’ of persecution. In other words, there must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear.[20]
[19] (1989) 169 CLR 379 at 396
[20] Ibid, at 396. See also: MIER v Wu Shan Liang (1996) 185 CLR 259 at 263.
Having seen and heard both the primary Applicant [Mr B], and his wife [Ms C] give their evidence before the Tribunal, and no matter that it was given via an intermediary translator, the Tribunal is satisfied that each of them do now genuinely hold a fear of physical harm for themselves and their sons at the hands of the illegal moneylenders in Vietnam from whom [Mr B] originally borrowed money on usurious terms, in the event that the family were to be required to return to that country. As such, the Tribunal is satisfied regarding the subjective component of the test enunciated by the High Court in Chan.
The phrase ‘well-founded’ imports a further objective element to the requirement; such as to require an objective examination of the facts to determine whether [Mr B] and [Ms C]’s fear is justified.[21]
[21] Chan v MIEA (1989) 169 CLR 379 at 429.
In light of the DFAT country information on loan shark money lending in Vietnam; as well as the other equivalent official reports that have been excerpted in these reasons (above), the Tribunal is now objectively satisfied that there is a ‘well founded’ chance of [Mr B] in particular, but also for other members of the [family] being persecuted in Vietnam, in the event that the family were to be required to return to that country, without the capacity to repay the loans.[22] On this latter point, the Tribunal is satisfied that the [family] would now be incapable of generating sufficient financial resources in Vietnam to have the means to service their existing debts within any reasonably practicable timeframe that would preclude the risk of physical harm to them arising at the hands of the illicit financiers, or their enforcers.
[22] Chan v MIEA (1989) 169 CLR 379 at 389, 406-407, 396-398, 428-429.
The Tribunal is further satisfied that this fear of persecution is more than something that has been only assumed or speculated[23] about by [Mr B], and that there is now a sufficiently real and substantial basis for that fear of harm, in the event that the [family] are returned to Vietnam. To this end, the Tribunal notes (and accepts) the following testimony from [Mr B], in which he says that he was specifically threatened with harm, in the event of non-payment of the loan:
[23] MIEA v Guo (1997) 191 CLR 559 at 572.
MEMBER:Now, the loan shark lender that you borrowed money from was an individual, is that right?
INTERPRETER:     The loan shark lender is actually a powerful group. A very strong syndicate. I don’t know how big they are.
MEMBER:How do you know they are a powerful syndicate?
INTERPRETER:      Because I listen to them talking on the phone, arranging the loan. And they also explain to me clearly and specifically what would happen if I do not pay them back. They can injure, they can harm or they can even kill me or my family member. And they also told me clearly about the interest rates that I have to pay.
MEMBER:Who told you this, and when did they tell you?
INTERPRETER:     They told me when I signed the loan paperwork.
MEMBER:What were the actual threats that were made when you signed the loan paperwork?
INTERPRETER:     They say that they can (indistinct) they can injure me or my family member. They can take away my children and force them to work for them, after that (indistinct) or do something illegal. They can – ultimately, they can even kill us.
MEMBER:Who said these things to you? What person?
INTERPRETER      The person who’s name is [Name 1]…
…/
MEMBER[Name 1]. Did [Name 1] have any other names? Was this [Name 1]?
INTERPRETER      Yes, that’s correct. [Name 1], the same person[24]
[24] Transcript, 26 May 2022, pp.55, line 38 – p.56 line 27.
In an overall sense, the Tribunal found both [Mr B] and his wife Ms [C] to be creditable witnesses, and the Tribunal is conscious of the need to be sensitive towards the obvious practical difficulties faced by such claimants: in terms of their capacity to produce ‘proper’ evidence in support of their claims. As was observed by Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs:[25]
“[21] Proof of persecution in the context of an application for refugee status is a matter of some complexity. As Grahl-Madsen has noted (The Status of Refugees in International Law at 145-6), in the proof or refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations; and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state “should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with”. This should not, however, lead to an uncritical acceptance of any and all allegations made by suppliants”.
[22]In discussing the burden of proof, the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees takes a similar position (at pp. 47-9). Although limits on the use of the handbook in the interpretation of the treaty were indicated by Mason CJ in Chan (at 392), the Chief Justice went on to say (at 392) that he regarded the handbook “more as a practical guide for the use of those who are required to determine whether or not a person is a refugee”.
[23]In that context, the handbook states:
“(2). Benefit of the doubt
203.After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204.The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and 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.”
[25] [1994] FCA 1253; (1994) 124 ALR 265.
In this instance, the Tribunal is satisfied that the Applicants have produced all of the available evidence that they are reasonably capable of producing; and that the story as told by [Mr B] (and by [Ms C]) has been generally consistent over time, and is coherent, and plausible. The fears now expressed by [Mr B] are also in accordance with what is known and officially accepted as the ‘received wisdom’ about loan sharks in Vietnam, on the basis of it being included as part of the DFAT Country Information Report on Vietnam, to which the Tribunal is obliged to have regard.
For the reasons here given, the Tribunal is satisfied that the first-named Applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act. In light of Vietnam country information suggesting that loans taken by one family member from loan sharks are treated as if these were also debt obligations upon other family members, and that other family members may therefore also face the threat of retribution for unpaid debts to loan shark lenders in Vietnam, and because of the effect of s.5K of the Act and the way in which s.5K relates to s.5J(1)(a), the Tribunal is also satisfied that the other-named Applicants are similarly owed protection obligations, under s.36(2)(a) of the Act.
In light of the Tribunal’s findings regarding protection obligations pursuant to s.36(2)(a) it becomes unnecessary for the Tribunal to proceed to consider the question of any entitlement to complimentary protection, pursuant to s.36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration, with the following directions:
(i) The Applicants satisfy s.36(2)(a) of the Migration Act.
Andrew McLean Williams
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 1510

23 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Remedies