1812865 (Refugee)

1812865 (Refugee) [2024] AATA 2161 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Lan Hoang (MARN: 1685874)
CASE NUMBER:  1812865
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Catherine Wall
DATE:6 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2024 at 4:31pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – fears discrimination and hostility – became pregnant to and Australian citizen – fear in regard to debt – single mother – tribunal does not accept that the societal discrimination she may experience amounts to significant harm – an Australian citizen daughter – unique and exceptional circumstances – best interest of daughter – referral for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 91, 351, 499
Migration Regulations 1994, Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
SZSPT v MIBP [2014] FCA 1245
MZAAJ v MIBP [2015] FCA 478
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age] year old citizen of Vietnam. She arrived in Australia on [date] August 2013 on a student visa and applied for protection on 31 October 2016.
The applicant stated in her visa application that she sought protection because she had a child to an Australian citizen who abandoned her when she was pregnant and she fears discrimination and hostility if she returns to Vietnam as an unmarried mother.
The delegate refused to grant the visa on the basis that the discrimination she faces as an unmarried mother is most likely to take the form of exclusion and neglect rather than aggression, therefore neither she nor her child are at risk of harm from the authorities or the broader society. The delegate was also satisfied that the applicant could access government services and obtain support from relevant community organisations. The applicant applied for review of that decision on 4 May 2018.
The applicant attended a Tribunal hearing on 12 February 2024. She was represented at the hearing by Ms Lan Hoang. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages. I was satisfied that the applicant was able to communicate effectively in the hearing.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in her protection visa application are as follows:
I came to Australia in 2013 to study and in 2015 I fell pregnant to a man named [Mr A], an Australian citizen. When he discovered that I was pregnant he left me and refused to acknowledge that the baby was his.
I am fearful of returning to Vietnam because people will look down on me. The society there is very old fashioned and they do not accept anyone having a baby without formally being married. It used to be a communist country and they still do not acknowledge this type of behaviour from women.
I fear returning because the society, community and the people in the neighbourhood will scold and yell at me wherever I go. I will feel embarrassed and rejected. I fear that my parents will disown me and I will have nowhere to go. I will live in shame and be treated like an outcast.
My child is born to an Australian and I want my child to have the life in Australia among good people. I don’t want her to face the challenges and trials that I would face if I go back to Vietnam.
I will be hurt and emotionally disoriented. The authorities cannot do anything about this.
I am not used to living outside my community and how could I survive with a baby that is hardly a few months old.
Prior to the hearing the Tribunal received a submission from the applicant’s representative which included:
oA statutory declaration from the review applicant
oBirth certificate or [Miss B]
oAustralian Citizenship Certificate for [Miss B]
oA letter from [Miss B]’s school
oA certificate of achievement from [Miss B]’s school
o[Miss B]’s school reports x 6
oLetters of support from [Ms C and other friends].
Evidence at the hearing
Background information
The applicant said that she was born in Quang Binh province, Vietnam. Her parents are living and she has one older sister and two brothers, all living in Vietnam. She left school at the age of [age] years and completed a [qualification] and worked part time while studying.
In 2013, at the age of [age] years, she travelled to Australia to [study]. Her plan was to do one year of English language followed by a 4 year degree course. She met [Mr A] about 6 months after arriving in Australia and they started living together in July 2014. When she found that she was pregnant in late 2015, [Mr A] left her and never came back. She later discovered that he went to Vietnam to marry another woman and sponsor her for a partner visa. The applicant said that she found herself pregnant, without accommodation and unable to study. She started working at a [workplace] and survived with help from friends and work colleagues. Her baby, [Miss B], was born on [date] and 8 days later her student visa was cancelled.
The applicant’s representative, Ms Hoang, has acted pro bono for the applicant for several years. She assisted her to make application to the Federal Circuit Court of Australia to have [Mr A] recognised as [Miss B]’s father and to enable [Miss B] to obtain Australian citizenship. This process took considerable time and [Miss B] was granted citizenship on 28 May 2021.
The applicant said that she currently works full-time at a [workplace] and supports herself and her daughter. She said that [Miss B] is doing well at school and they have made a good life here with the support of friends. Neither she nor her daughter want to return to Vietnam.
When asked about her parents’ response to her pregnancy and single mother status, the applicant said that they were sad about what had happened to her. They maintain regular contact with the applicant but cannot financially help her as they are poor. She said that they mortgaged their land to obtain a loan of 600,000,000 VND[1] from the bank to support her studies in Australia. Family and friends in Vietnam also contributed funds for her study. Her parents are gradually repaying the loan and have extended the term of the loan several times.
[1] Equivalent to approximately $37,500 AUD at current conversion rates.
I asked the applicant why she is unwilling to return to Vietnam. She told me that [Miss B] has settled in well here and will not adjust to living in Vietnam as she is not fluent in Vietnamese and has never lived in the country. She said that she will face discrimination as a single mother and that [Miss B] will be hurt by the attitudes and rumours of society because she has no father. She also said that boys are preferred over girls in Vietnam.
The applicant said that she will be unable to get a job which means she cannot pay for [Miss B]’s schooling. While she confirmed that her parents will provide emotional support and will not shun her, she said that they are poor and cannot help her financially.
The representative added that [Miss B] had travelled to Vietnam for 2 weeks to meet her grandparents and extended family and that she did not like it. She said that the applicant’s village is very rural and isolated and there is limited education available locally.
In the pre-hearing submission the representative stated that the applicant acknowledges that she does not have strong grounds for a grant of a protection visa and requests the Tribunal to refer this case to the Minister for consideration. The representative stressed that the applicant has done her very best to support herself and [Miss B] and to provide [Miss B] with the best life she could manage. She has been treated badly, firstly by her partner who abandoned her, and then by a migration agent who scammed her for $25,000.
In relation to the former migration agent, I note that the protection visa was lodged through a migration agent and contains obviously incorrect information. For example it states that “if I return to Cambodia I will be mistreated, scolded and abuse hurled at me’. It also refers to the applicant having attended high school in Cambodia. Further it states that the applicant fears that her family will disown her and chase her away from the village. At hearing the applicant explained that her parents are supportive and she maintains regular contact with them. I accept that the applicant’s English was limited at the time of application and she was not aware of the incorrect information submitted by the agent.
The representative advised it is possible for [Miss B], as an Australian citizen, to sponsor her mother for a parent visa, however the department’s website indicates that the current waiting time for a contributory parent visa is 12 years and for a parent visa is over 30 years. If this visa application is lodged from overseas it will be many years before the applicant can re-enter Australia.
The applicant argued that, as [Miss B] was born in Australia and is an Australian citizen, she would be regarded as a foreigner if she moves to Vietnam. In her submission the representative stated that [Miss B] will face hardship in obtaining a visa to remain in Vietnam as a foreigner, as getting Vietnamese citizenship will be almost impossible and would take years to process.
I advised the applicant that I would raise some concerns with her regarding her claims.
In reference to the applicant’s claim that she will be unable to obtain employment in Vietnam, I observed that she has Vietnamese qualifications [and] previously worked in Vietnam, and that she has acquired additional skills while working in Australia, thus she would be well placed to obtain work. She agreed that she could take care of herself but said that her child was born here and is not fluent in Vietnamese. She said that ‘they might track her for the debt if she returns’. When I asked who might track her, as it was her parents who borrowed the money and not her, she said she is not sure who they are but they will think that she is bringing home big money from overseas.
I acknowledged the applicant’s concerns about the discrimination faced by single mothers in Vietnam, and I noted that the DFAT reports that Vietnamese culture emphasises traditional family values, and that single women face a moderate risk of societal discrimination although they do not face official discrimination.[2] I explained that the issue I must consider is whether this level of discrimination amounts to serious or significant harm, and it appears to me that she will have the support of her family even if she experiences discrimination from others. In response she stated that she has been in Australia for a long time and she and [Miss B] are doing well. She confirmed that her family will support her emotionally but they are poor and cannot help her financially.
Country information
[2] DFAT Country Report Vietnam (2022) at 3.86.
A 2018 report by the UK Home Office recounts the experience of a group of women who opted to have children without their husbands. The report indicates, that while there have been some wins in relation to the rights of women in Vietnam - such as the recognition of single mothers and their children through the Law on Marriage and Family; there continues to be a social stigma attached to single mothers in rural areas of Vietnam.[3] The below extracts were cited in the UK Home Office report from a New York Times article:
The growing number of single mothers, especially those who had fought for the revolution, at length caught the attention of the Women’s Union, the government agency that oversees programs for women. “Many women gave everything in the war, and it was important to recognize their sacrifice,” said Tran Thi Ngoi, head of the Women’s Union in the Soc Son district of Hanoi. ‘Although the plight of the war generation single mothers was only one factor, in 1986 the government passed the Marriage and Family Law, which for the first time recognized single mothers and their children as legally legitimate. It was a victory for the mothers in Loi, and for others like them. ‘“Every woman has the right to be a wife and a mother, and if she cannot find a husband, she should still have the right to her own child,” Ms. Ngoi said. ‘Since then, the government, working with international organizations, has continued to push for equal rights for women and to improve their health and education. Today single mothers in the countryside still face hardship, discrimination and shame, but benefit from government initiatives that started with the older generation.’[4]
[3] ‘Country Policy and Information Note Vietnam: Victims of trafficking’, UK Home Office, September 2018, CIS7B839419728, p.27.
[4] ‘Ibid.
In a 2017 article, Ms Nguyen Thi Dieu Hong, a former gender specialist at the United Nations Development Programme said that the number of single mothers in Vietnam has increased in Hanoi, Ho Chi Minh City and Danang City.[5]
[5] Vietnam’s working women opting to stay single’, The Straits Times, 29 April 2017.
A December 2019 academic blog article written by an author embedded with a local NGO supporting single women in Vietnam commented on the situation of single women in Vietnam as follows:
The view of single motherhood and out-of-wedlock pregnancies has also shifted to be viewed more favourably in Vietnamese society, but 90% of people aged 35 to 39 years old are still married (De Loenzien, 2016). Young women who choose to move to bigger cities such as Hanoi and Ho Chi Minh City get an opportunity to work for themselves without the constant family pressures to get married and have children (Peters, 2016). Single Motherhood. Single motherhood is not well documented in Vietnam. In 2009, around 11% of women ages [sic] 15 to 49 years old is considered a single mother with a child below the age of 17 (De Loenzien, 2016). Single motherhood seems to be on the rise in Vietnam as well as in other parts of the world. Several factors contribute to this such as an increase in divorce and separation and a rise in migration flow (De Loenzien, 2016). Divorce rates seem to be slightly higher in women, around 2.0%, than men with higher remarriage in for men (De Loenzien, 2016).[6]
[6] Mẹ, Myself, and I: Single Motherhood in Vietnam’, Omprakash.org, 19 December 2019.
In the International Journal of Asian Studies 2021, Tran Thi Minh Thi noted differences in social values towards family matters in Vietnam across different socio-economic segments of society, including regarding ‘single mothers’: For instance, people with lower socioeconomic conditions, such as people who are elderly, tend to have lower education, live in rural areas and experience a lower level of living standard show stronger patriarchal norms including career promotion prioritized to men while placing family chores on women, intergenerational co-residence arrangement preference, gender-based division of labour, higher fertility, place higher value children more instrumentally and extoll strong family and community cohesion. Meanwhile, those with higher socioeconomic conditions value housework sharing; accept single mothers, premarital sex and cohabitation and prefer dual incomes. According to Tran, ‘new models of family life are on the rise… The country also has seen a growing prevalence of alternative family forms such as cohabitation, single parenting and transnational marriage, which were absent or very rare in the past.[7]
[7] ‘Complex transformation of divorce in Vietnam under the forces of modernization and individualism’, Tran Thi Minh Thi, International Journal of Asian Studies, 23 March 2021, p.228.
Country information indicates that there are various non-government support services available to single mothers in Vietnam, including but not limited to health care, financial services, child care and shelters. These include:
o   The Children of Vietnam is an Organisation that works with other local organisations to provide comprehensive services tailored to the specific needs of single mothers and their children.[8]
o   NGO Just Peoples provides support services for single mothers in Vietnam including training courses, counselling and job placements.[9]
o   ELI Abroad is a non-profit organisation that partners with Non-Government Organisations, community development organisations, and medical institutions in Ho Chi Minh City and DaLat. Eli Abroad runs a program for pregnant women out of wedlock who are stigmatised and often abandoned by their families and partners.[10]
o   The International Organization for Migration (IOM) run an Assisted Voluntary Return service on behalf of governments to help eligible individuals on their return to their country of origin. According to the IOM website, some individuals may also qualify for the reintegration assistance including but not limited to reception assistance in country of origin; reintegration planning that may include small cash assistance and in-kind support to pursue small; business income generation, vocational training, schooling or other such support to facilitate integration and follow-up monitoring and support.[11]
[8] ‘Single mothers’, Children of Vietnam, n.d, pp.1-2, CIS7B8394110172.
[9] ‘Tang Duyen Hong’, Just Peoples, n.d., 20211217101012’; see also: ‘Supporting Single Mothers to Survive and Thrive’, Just Peoples, n.d., 20211217101406.
[10] ‘Women’s programs’, ELI Abroad, n.d, p.2, CIS7B8394110173
[11] ‘Assisted Voluntary return and Reintegration Program’, The International Organization for Migration, n.d, p.2, CIS7B8394110174
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.
Refugee criteria
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan v MIEA (1989) 169 CLR 379.

If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)). 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.
Complementary protection criteria
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. ‘Significant harm’ is exclusively defined in s.36(2A) as follows:
(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.
Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s36(2)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province
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.
The current Department of Foreign Affairs and Trade (DFAT) report is the DFAT Country Information Report Vietnam dated 11 January 2022.
ASSESSMENT
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any 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; Abebe v Commonwealth of Australia.[12]
Identity
[12] (1999) 197 CLR 510.
The applicant’s nationality is not an issue. She travelled to Australia on a valid Vietnamese passport and has consistently stated in documentation that she is a national of Vietnam. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Vietnam and I have assessed her claims against Vietnam as her receiving country.
Does the applicant meet the refugee criteria?
I found the applicant’s evidence to be consistent and credible. She answered questions thoughtfully and I acknowledge her honesty in relation to her continuing relationship with her family in Vietnam and her confirmation that she expects to be able to secure employment if she returns to Vietnam.
I accept that the applicant travelled to Australia with a genuine intention to study and that she was engaged in her studies until she became pregnant to and Australian citizen. I accept that the applicant’s former partner left her when he learnt that she was pregnant and that it was necessary for her to seek legal redress so that her daughter [Miss B] could be granted Australian citizenship.
The applicant lodged a protection visa because she does not wish to return to Vietnam for the following reasons:
o   Single mothers experience discrimination in Vietnam.
o   She has lived in Australia for 10 years, has made a good life here, she has always worked hard and has supported herself and her daughter.
o   Her daughter was born in Australia and has never lived in Vietnam, thus would face hardship moving to a foreign country and culture.
o   She is concerned that she may earn insufficient money in Vietnam to provide [Miss B] with a quality education.
o   Her daughter will not have Vietnamese citizenship if she moves to Vietnam with the applicant, and as a result may not be able to access health and education services.
o   She is unwilling to leave her daughter in Australia if she is required to return to Vietnam, as she is her primary carer and [Miss B] has never had contact with her father.
At the outset I acknowledge that the applicant has demonstrated resilience and determination as a single mother who is determined to give her daughter a good life. I accept that she has worked tirelessly to provide for her daughter and the school records provided indicate that she is committed to giving [Miss B] a strong education. I give weight to the supporting statements from her friends, [names deleted], who attest to the applicant’s struggles in Australia, her commitment to her daughter and her desire to remain in Australia. I have also had regard to the statement from [Ms C] who confirms the applicant’s employment as a [worker] at [a] Company and advises that the company wishes to retain her employment into the future.
I accept that the applicant is settled in Australia and does not wish to disrupt her life or her daughter’s life. I also accept that, as [Miss B]’s primary carer, she would need to take [Miss B] with her if she is returned to Vietnam. However the issue I am required to consider is whether there is a real chance that the applicant faces serious harm if she returns to Vietnam now or in the foreseeable future.
Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(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.
Economic hardship
I have considered the claim that the applicant faces unemployment and poverty in Vietnam.
On the evidence before me I am not satisfied that the applicant will face such significant economic hardship that she will be unable to subsist. She has a [qualification] from Vietnam and has acquired additional skills while working in Australia. When this was put to the applicant she agreed that she could support herself but may not earn enough to give [Miss B] the opportunities she currently has in Australia. The provision of equal opportunities for [Miss B] is not however a determinative issue in relation to the applicant’s application for protection.
I accept that the applicant may learn less in Vietnam than she is earning in Australia and that her standard of living may be lower in Vietnam, however, I do not accept that this meets the serious harm test. I give weight to the family support that the applicant can rely on, mindful that her parents may not be wealthy but they can provide other forms of support such as housing and childcare. I also find, on the basis of country information, that there are agencies in Vietnam, such as IOM and Just Peoples, who can assist the applicant with employment, training and support if required.
Discrimination as a single mother
Country information confirms that single mothers may face societal discrimination in Vietnam and advises that the level of discrimination depends upon their location, educational background and socio-economic status. Discrimination is less common in the bigger cities but remains common in rural areas. The applicant’s family lives in a rural area and the applicant described them as ‘poor’. I accept that she may therefore face disapproval or hostility from people locally because she is a single mother and that this would be difficult for her.
DFAT country information reports that single women do not face official discrimination and that poor single women may receive assistance from the authorities. It is also evident from country information detailed above that there are various agencies which provide support to single mothers. This includes the International Organization for Migration which runs an Assisted Voluntary Return service on behalf of governments to help eligible individuals on their return to their country of origin.
Although the applicant stated in the visa application that she will be shunned by her family as a single mother, she said at hearing that her family is supportive. I find therefore that if the applicant returns to Vietnam she could choose to live with or near her family where she will receive emotional and practical support. I acknowledge that employment and educational opportunities may be limited in the rural area, and that societal discrimination may be distressing for her. Alternatively, she may choose to reside in a larger city where there are more employment opportunities, better educational facilities and where she can access relevant government and non-state agency services.
Given the country information and having regard to the applicant’s circumstances, I do not accept that the societal discrimination she may face as a single mother in Vietnam is such that there is a real chance that she will face serious harm if she returns to Vietnam.
Fear in regard to debt
I accept the evidence that the applicant’s parents borrowed money from the bank to support her studies in Australia, and that they are having to repay this over an extended period of time. She did not claim that her parents are in arrears or have experienced threats from the bank. When asked who might try to track her in regard to debts, the applicant said she did not know. If the applicant faces a genuine threat because of the debt, I reasonably expect that she would know the source of the threat. If her parents have negotiated with the bank to extend the loan, I see no reason for the bank to threaten the parents or the applicant. The applicant said that family and friends also contributed money towards her studies however she did not claim that they will pursue her for return of this money. I do not accept that there is a real chance that the applicant will face serious harm as a result of her parents’ debts if she returns to Vietnam now or in the foreseeable future.
Having considered the applicant’s claims individually and cumulatively, I do not accept that the applicant has a well-founded fear of persecution because of societal discrimination as a single mother, because of unemployment and poverty or because creditors might track her, or for any other reason, if she returns to Vietnam now or in the foreseeable future. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Does the applicant meet the complementary protection criteria?
I have considered whether there are 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 the applicant will suffer significant harm of any kind.
Having regard to the applicant’s concern that she faces discrimination as a single mother in Vietnam, for the reasons given above I do not accept that the societal discrimination she may experience amounts to significant harm, as that term is defined in s.36(2A) of the Act, as I do not consider that it amounts to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
I have accepted that the applicant may have fewer economic opportunities in Vietnam however for the reasons given I do not accept that this amounts to significant harm, as that term is defined in s.36(2A) of the Act, as I do not consider that it amounts to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
I do not accept that the applicant will be tracked or threatened or harmed by the bank or by others who contributed money towards her study in Australia. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Request for referral for ministerial intervention
In the event of an unsuccessful review application, the applicant has asked the Tribunal to refer this matter to the Minister for consideration of the Minister’s power to intervene and grant her a visa pursuant to s.351 of the Act.
Under s.351 of the Act, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to determine, and the Minister’s power to intervene is personal and non-compellable. This means that the Minister does not have a duty to use, or consider using, any of the powers.
There are Departmental guidelines (most recent version 1 October 2022) setting out what kinds of cases might result in Ministerial intervention, and also circumstances in which the Minister considers it would be inappropriate to intervene. Appropriate cases are those that have one or more unique or exceptional circumstances, such as described in the guidelines. One of the circumstances described is particularly relevant to this case:
Strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The guidelines also state that, for all cases referred to the Minister under these guidelines, the Department will provide information on any other relevant issues, including:
Circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations.
There is no evidence before the Tribunal to indicate that the applicant’s case falls within the scenarios set out in the list of cases where the Minister has indicated that they would not intervene.
The applicant’s daughter, [Miss B], is [age] years old. Her father is an Australian citizen and her mother is a Vietnamese citizen. She was born in Australia and is an Australian citizen. [Miss B] has only ever lived in Australia. Her father ended his relationship with her mother when he learned she was pregnant and he has had no contact with [Miss B] who has been raised by her mother.
The applicant does not satisfy the criteria for a protection visa. If she is returned to Vietnam [Miss B] will need to accompany her as she has no other family in Australia to care for her. Country information indicates that [Miss B] is likely to experience challenges accessing services in Vietnam because she is ‘foreign born’. DFAT reports that a local residence registration and birth certificate are required to access enrolment in a public school in Vietnam.[13] A 2016 article published by Vietnam Law and Legal Forum[14] advises that, in the case of a child with foreign citizenship and a Vietnamese mother, the child is regarded as a ‘self-financing foreign student’ and must satisfy several conditions for enrolment, including fluency in the Vietnamese language. In terms of healthcare, Allianz says that most Vietnamese citizens have to pay for medical services themselves at both public and private hospitals.[15] It is unclear from the available information whether [Miss B] would be required to relinquish her Australian citizenship to obtain Vietnamese citizenship in order to access government services. Regardless of the outcome, it is evident that these processes can take considerable time and [Miss B] may be denied access to health and education in the interim.
[13] DFAT Country Information Report Vietnam, 2022, 2.12
[14] 'Law on Citizen Identification to be revised to protect Vietnamese citizens’ rights', Vietnam Law and Legal Forum, 27 February 2023, 20240206072151
[15] Healthcare in Vietnam’, Allianz, n.d., accessed 23 February 2024, 20240223145529
Australia is a signatory to the Convention on the Rights of the Child. Article 3 states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. I submit that it is in [Miss B]’s best interests that her mother (the applicant) be granted a permanent visa so that she can remain in Australia to care for her daughter who was born in Australia, is an Australian citizen and has lived all her life in Australia.
The Tribunal is satisfied that these factors constitute unique and exceptional circumstances which warrant consideration by the Minister pursuant to s.351 of the Act, and it refers the case to the Minister for this purpose.
CONCLUSIONS
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).
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). 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) on the basis of 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.
Catherine Wall
Member

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

[2024] AATA 2161

6 March 2024

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